Chattisgarh High Court
U. N. Kurrey vs Dr. (Smt.) Savitri Tripathi on 30 September, 2022
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 134 of 2022
• Dr. (Smt.) Savitri Tripathi W/o Shri D.R. Tripathi, Aged About 53 Years
Occupation Service Working As Professor In English Department And
Posted At Government J.P.Verma P.G. Arts And Commerce College,
Bilaspur, R/o. 9/97, Green Park Colony, P.S. Civil Lines, District
Bilaspur Chhattisgarh.
---- Appellant
Versus
1. State Of Chhattisgarh Through The Secretary, Higher Education
Department, Mantralaya, Mahanadi Bhawan, New Raipur, District
Raipur Chhattisgarh.
2. State Of Chhattisgarh Through The Secretary, Home Department,
Mantralaya, Mahanadi Bhawan, New Raipur, District Raipur
Chhattisgarh.
3. Additional Secretary, Higher Education Department, Mantralaya,
Mahanadi Bhawan, New Raipur, District Raipur Chhattisgarh.
4. B.L. Goyal, Ex-Principal (Now Retired) Govt. J.P. Verma, P.G. Arts
And Commerce College, Jarhabhata, Bilaspur, District Bilaspur
Chhattisgarh. R/o L-9, Vinoba Nagar, Bilaspur Chhattisgarh.
5. U.N. Kurrey, Assistant Professor (English) Govt. College, Akaltara,
District Janjgir Champa Chhattisgarh.
6. Commissioner, Bilaspur Division, District Bilaspur Chhattisgarh.
7. Superintendent Of Police, Bilaspur, District Bilaspur Chhattisgarh.
8. Collector, Bilaspur, District Bilaspur Chhattisgarh.
9. Station House Officer, Police Station Civil Lines, Bilaspur, District
Bilaspur Chhattisgarh.
---- Respondent
WA No. 412 of 2021
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• U. N. Kurrey S/o Shri Ram Prasad Kurrey Aged About 59 Years
Assistant Professor (English), Government College, Akaltara, District,
Janjgir Champa, Chhattisgarh
---- Appellant
Versus
1. Dr. (Smt.) Savitri Tripathi W/o Shri D.R. Tripathi, Aged About 53 Years
Occupation Service, Working As Professor In English Department And
Posted At Government J.P. Verma P.G. Arts And Commerce College,
Bilaspur, R/o 9/79, Green Park Colony P.S. Civil Lines, District
Bilaspur Chhattisgarh.
2. State Of Chhattisgarh Through Secretary, Higher Education
Department, Mantralaya, Mahanadi Bhawan, New Raipur, Chhattisgarh.
3. State Of Chhattisgarh Through Secretary, Home Department
Mantralaya, Mahanadi Bhawan, New Raipur, District Raipur,
Chhattisgarh.
4. Additional Secretary, Higher Education Department, Mantralaya
Mahanadi Bhawan, New Raipur, District Raipur, Chhattisgarh.
5. B.L. Goyal Ex-Principal (Now Retired) Government J.P. Verma P.G.
Arts And Commerce College, Jarhabhata, Bilaspur, District Bilapur
Chhattisgarh R/o L- 9, Vinoba Nagar, Bilaspur, Chhattisgarh.
6. Commissioner, Bilaspur Division, District Bilaspur, Chhattisgarh.
7. Superintendent Of Police Bilapur, District Bilaspur, Chhattisgarh.
8. Collector, Bilaspur, District Bilaspur, Chhattisgarh.
9. Station House Officer Police Station Civil Lines, Bilaspur, District
Bilaspur Chhattisgarh.
---- Respondent
(Cause-title taken from Case Information System)
For Appellant in WA No.134/2022 & respondent No.1 in WA No.412/2021
: Shri Awadh Tripathi, Advocate.
For Appellant in WA No.412/2021 & respondent No.5 in WA No.134/2022
: Shri Ranbir Singh Marhas, Advocate.
For Respondents 1 to 3 & 6 to 9 in WA No.134/2022 and respondents 2 to 4 &
6 to 9 in WA No.412/2021 : Shri R. Pradhan, Additional AG.
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For Respondent No.4 in WA No.134/2022 and respondent No.5 in WA
No.412/2021 : Shri Kishore Bhaduri, Sr. Advocate with Shri
Sabyasachi Bhaduri, Advocate.
Date of Hearing : 08/09/2022
Date of Judgment : 30/09/2022
Hon'ble Shri Arup Kumar Goswami, CJ &
Hon'ble Shri Deepak Kumar Tiwari, J
C A V JUDGMENT
Per Deepak Kumar Tiwari, J.
The aforesaid Writ Appeals are being disposed of by this common judgment, as they arise out of the order dated 25.10.2021 passed by the learned Single Judge in WPCR No.174/2018 whereby the learned Single Judge has not issued any direction for taking any action against respondent No.4 and directed the Secretary/Director/their authorized persons from Higher Education or Principal of the College where the petitioner (Appellant in WA No.134/2022) was posted to initiate proceedings against respondent No.5 for registration of FIR on the basis of complaint made by the petitioner and materials collected by the fact finding Committee within 2 months from the date of receipt of copy of the order. It was further observed that on registration of the FIR, it is for the Investigating Authority to investigate the matter and submits its report to the concerned trial Court as per the procedure prescribed under the CrPC.
2. Writ Appeal No.134/2022 has been preferred by appellant Dr. (Smt.) Savitri Tripathi seeking to set aside the finding recorded by the learned Single 4 Judge in para-18 of the impugned order and to issue direction for taking any action against the respondent No.4, whereas, Writ Appeal No.412/2021 has been preferred by appellant (respondent No.5 in writ petition) U.N. Kurrey seeking to set aside the impugned order dated 25.10.2021 passed by the learned Single Judge in WPCR No.174/2018.
3. Appellant - Dr. (Smt.) Savitri Tripathi had filed a Writ Petition seeking direction against the respondents No.1 to 4 to submit the complaint along with preliminary report as also the departmental enquiry report to the concerned police for taking cognizance against the respondent No.5 in the light of judgment of the Hon'ble Supreme Court in the matter of Vishaka and Others Vs. State of Rajasthan and Others {(1997) 6 SCC 241}, as also for taking criminal action against respondent No.5. The appellant was also aggrieved by the in-action on the part of Shri B.L. Goyal, a retired Principal, who was duty bound to send the complaint to the concerned police, however, he neither forwarded the complaint of the petitioner nor took any action. So, some action ought to be taken against him.
4. Case of the writ petitioner/appellant is that she is the Senior Professor of English and at the relevant time, she was posted at Government J.P. Verma, P.G. Arts and Commerce College, Bilaspur. Respondent No. 5, who is the Assistant Professor in English and posted at Government College, Akaltara visited the college of the appellant on 26.09.2012 and 27.09.2012 and he used obscene language about the writ petitioner. On 05.10.2012, after meeting with B.L. Goyal, now Retired Principal, J.P. Verma College, outside of the room of the Principal, he used the words ",s lquks ew>s rqels ckr djuk gS pyksA " and directed her 5 to come inside the English and Hindi Department. The appellant looking at the conduct of respondent No. 5, said that if he wanted to talk to her, he should talk in the Principal's Chamber. Then he said that he belongs to reserved category and as such she cannot take any action against him. The appellant orally informed the indecent behaviour of respondent No. 5 to respondent No.
4. Again on 12.10.2012 at 4 pm during the course of office hours, respondent No.5 suddenly entered the Hindi and English Department and started abusing her with filthy language which amounted to outraging the modesty of the appellant and tarnishing the reputation of the senior lady professor. He used the words "Tripathi Chalo Maja Kare Tum to Janti Ho Pichle Bara Varso se Tumhare Mere Saririk Sambandh Hai Aur Itne He Varso Se Tum Meri Rakhel Ho" in the presence of professors who had protested such conduct of respondent No. 5. Therefore, on 13.10.2013, she made a written complaint to the Principal, Government J.P. Verma P.G. Arts and Commerce College, Bilaspur. Thereafter, she again sent reminders on 19.12.2012 & 29.12.2012 and copy was also sent to respondent No.4 who became Additional Director, Higher Education Department, Regional Office, Government of Chhattisgarh.
5. The learned Single Judge while allowing the writ petition has observed thus in para-18:-
"18. Further contention of respondent No. 5 that since respondent No. 5 was employed in different institution, therefore, any alleged act or omission done by him cannot be construed as sexual harassment at the workplace, this contention is also incorrect as the workplace has been defined in 2(o) of the Act, 2013. The petitioner was working at J.P. Verma, P.G. Arts and Commerce College, Bilaspur where respondent No. 5 has visited and has made certain obscene against 6 petitioner, therefore, as per the Section 2(o) of the Act the incident has taken at workplace where petitioner was working. The workplace has to be considered, the place of working of the victim not on the basis of offender, as such, it is held that petitioner was subjected to harassment at workplace. Therefore, the points No. 1 and 2 are decided that the incident has taken place at workplace and since the incident has happened at workplace, either respondent No. 1 or respondent No. 4 should have taken action as per the judgment of Vishaka (supra) and the Act, 2013. The respondents No. 1 and 4 failed to discharge their obligation and thus failed to perform their duty. Since more than 8 years have lapsed, the particulars of respondent No.1 is not available on record and respondent No.4 has already retried from service, this Court is restrained from issuing directions for taking any action against them, but this Court hope and trust that the State Government should see that in future if such exigency arise, any victim of sexual harassment at workplace should not run pillar to post to get her redressal."
6. Shri Ranbir Singh Marhas, learned counsel for appellant-UN Kurrey would submit that while considering the enquiry report, the competent authority has opined that the allegations against the appellant seem to have been made malafidely. He also submits that no law prohibits/bars the petitioner to lodge FIR of the alleged incident and earlier, the petitioner had filed the Writ Petition only for conducting the departmental proceeding. He would further submit that as the alleged incident took place in the year 2012, for the offence under Section 509 of the IPC, uttering any word, or making any gesture with intention to insult the modesty of a woman, etc., on the relevant date, the offence was punishable only for one year, and as per Section 468 of the CrPC, after one year, no cognizance can be taken. He also contended that the impugned order is contrary to the law laid down by the Hon'ble Supreme Court in the matter of Sakri Vasu Vs. State of UP and 7 others {(2008) 2 SCC 409} wherein it is clearly held that if any person has a grievance that his FIR is not being registered, then the first step which is to be taken is to make a complaint to the concerned Police, then to the Superintendent of Police and thereafter to prefer an application under Section 156 (3) of the CrPC before the competent Magistrate or to file a complaint under Section 200 of the CrPC. He prayed that the impugned order is bad in law and is thus liable to be set aside.
7. Shri Tripathi, learned counsel for the petitioner/appellant would submit that the criminal action on the basis of judgment of the Hon'ble Supreme Court in the matter of Vishaka (Supra) and the departmental proceedings are separate and distinct in nature. He would submit that whenever in any work place any incident of sexual harassment happens and the same gets noticed by the employer, then as per the Vishaka Guidelines, as applicable on the date of the incident, it is the bounden duty of the employer to not only take disciplinary action, but also to initiate appropriate action in accordance with law, by making a complaint with the competent authority. As the then Principal has failed to discharge his legal duty, and in the impugned order, it was also found that there was delay of 8 years for non-compliance of Vishaka Guidelines, so some action should have been taken against him. However, the writ Court wrongly exonerated the respondent No.4 - BL Goyal, Ex-Principal. The direction issued for registering the FIR was just and proper and the Writ Appeal filed by appellant-UN Kurre is without any merit.
8. Shri Bhaduri, learned Senior Counsel would submit that respondent No.4 has always discharged his duties diligently and now, he has already 8 retired from service. Therefore, the writ Court, after taking into consideration all the aspects of the matter, has rightly not issued any direction against him, as the petitioner has grievance mainly with appellant-UN Kurre. He, therefore, submits that the Appeal filed by the petitioner is not tenable and prays for dismissal of the Appeal.
9. We have heard learned counsel for the parties at length and perused the record with utmost circumspection.
10. Perusal of the records would reveal that a preliminary fact finding enquiry was conducted by Dr. Smt. Asha Kaushik, Principal, Govt. M.S. Naveen Girls College, Bilaspur and she had submitted the report dated 27.9.2013 to the Additional Director, Higher Education by mentioning reference letter dated 10.7.2013 of the office of Higher Education Department, Raipur (CG) and in the said report, it was found that appellant-UN Kurre had used filthy and abusive words against the petitioner. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (henceforth 'the Act, 2013') (Act No.14 of 2013) came into force on 9.12.2013 and till such date, the guidelines laid down in the matter of Vishaka (Supra) were applicable. In the present case, the petitioner has stated that the incident had occurred on 26.9.2012, 27.9.2012, 5.10.2012 and 12.10.2012. During the course of enquiry before Dr. Smt. Asha Kaushik on 5.8.2013, in response to the questionnaire given to her on 1.8.2013 about the incidents, she has specifically given separate response to the incident dated 12.10.2012 (in response it was wrongly mentioned as 12.10.2013).
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11. The petitioner had earlier filed a writ petition bearing WPC No.700/2014, as no action had been taken and enquiry was also not completed. The said writ petition was disposed of on 16.4.2014 with a direction to the Commissioner, Higher Education to make a proper enquiry into the complaint of the petitioner and to take a decision in accordance with law, expeditiously. In the said order, it was observed that the Commissioner has sought a report from respondent No.4 - BL Goyal, which was duly submitted, but, some more information/relevant documents were awaited. Liberty was reserved in favour of the petitioner that if the complaint is not disposed of within a period of 3 months from the date of the order, she may revive the petition.
12. In the light of preliminary enquiry, the Commissioner, Higher Education was directed to initiate departmental proceeding vide letter dated 13.11.2014 issued by the Deputy Secretary, Higher Education Department. The competent authority has also found the charge No.1 relating to indecent behaviour by appellant - UN Kurre with the petitioner to be proved. The State Government after considering the enquiry report, vide order dated 25.11.2017, issued a warning to the appellant - UN Kurre that he shall not commit any such incident in future and accordingly, the departmental enquiry was closed.
13. The Additional Secretary vide letter dated 19.5.2014 had sought information whether the petitioner has lodged a complaint to the police or not from respondent No.4 - BL Goyal as the incident seemed to be criminal in nature. In response, respondent No.4 informed that no such complaint was made by the petitioner to the police or Head of the Department. The Special 10 Duty Officer, Higher Education Department vide letter dated 31 st October, 2014 asked the petitioner to furnish the details regarding the Writ Petition (C) No.700/2014 preferred by her as also about the FIR, if any, which she had directly lodged in the Police Station, for taking appropriate decision.
14. The petitioner vide letter dated 11.11.2014 had sent her reply to the Secretary of the Department stating that the incident happened at the work place during working hours and she has given a complaint on 13.10.2012 to the Principal - Shri BL Goyal. However, after receiving the complaint, he had neither initiated any departmental proceeding nor lodged any report. Even the Department has not given any permission or direction to directly lodge a report. She has further stated in her reply that it is the moral responsibility of the Department to provide protection to women employees from sexual harassment in workplace and to initiate appropriate disciplinary action as well as criminal proceeding. She finally requested not to make any unnecessary correspondence and harass the petitioner and to take action on her complaint on the basis of enquiry report.
15. As per Section 19 (g) of the Act, 2013, it is the duty of the employer to provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the IPC or any other law for the time being in force. Section 27 of the Act, 2013 stipulates that no court shall take cognizance of any offence punishable under this Act or any rules made thereunder, save on a complaint made by the aggrieved woman or any person authorised by the Internal Committee or Local Committee in that behalf. In such circumstances, on examination of the role played by respondent No.4 - 11 BL Goyal and having due regard to direction given by this Court in WPC No.700/2014 to the Commissioner, Higher Education Department for making enquiry into the complaint of the petitioner, we find that the writ Court was justified in not issuing any direction for taking any action against respondent No.4. Accordingly, Writ Appeal No.134/2022 filed by the petitioner/ appellant for issuing direction for taking action against the respondent No.4 is without any merit.
16. Considering the laudable object of enacting the Act, 2013, in pursuance of Vishakha Guidelines, and the protection against sexual harassment and the right to work with dignity, direction issued in the impugned order for registration of the FIR when the petitioner/appellant is continuously pursuing such cause, we do not find any substantial point to interfere with the impugned order. It is settled law that if the information given clearly mentions commission of cognizable offence, there is no other option but to register the FIR forthwith. The other considerations such as, whether information is falsely given, whether information is genuine or credible etc, are not relevant at the stage of registration of FIR. These are issues that have to be verified during investigation of the FIR. The CrPC gives power to the Police Officer to file final report under Section 173 of the Code seeking closure of the matter. The contention put forth by Shri Marhas, learned counsel for the appellant in WA No.412/2021 about limitation of cognizance of offence is not relevant at this juncture and the other points urged by him do not persuade us to take a view that the direction issued for registration of the FIR is not proper. 12
17. For the foregoing reason, this Court is of the view that the appellant has not been able to make out a case for interference and WA No.412/2021 also deserves to be dismissed.
18. Resultantly, both the Writ Appeals being devoid of any substance deserve to be and are hereby dismissed with no costs.
Sd/- Sd/-
(Arup Kumar Goswami) (Deepak Kumar Tiwari)
Chief Justice Judge
Barve