Service Law; Union of India Vs. V.S. Jaitha [Kerala High Court, 01-08-2016]

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – CCS (Conduct) Rules – Rule 3(1)(iii) – Misconduct / Misbehaviour involving sexual harassment – After commencement of Act 14 of 2013 w.e.f. 09.12.2013 if any complaint is received involving a misconduct of ‘sexual harassment’ as defined under Section 2(n) of the said Act, it shall be caused to be dealt with in terms of the provisos of the Act/Rules – It is open for High Court / Tribunal to intercept the proceedings on exceptional circumstances, if the complaint does not disclose any instance of misconduct of ‘sexual harassment’ coming within the purview of Rule 3C of the CCS (Conduct) Rules/Sec.2(n) of Act 14 of 2013.

CCS (Conduct) Rules – Rule 3(1)(iii) – Misconduct / Misbehaviour involving sexual harassment – Whenever a complaint is preferred with imputation of misconduct/misbehaviour involving sexual harassment coming within the purview of Rule 3C of the CCS(Conduct) Rules, it has necessarily to be placed before the committee as envisaged under the proviso to Rule 14(2) of the CCS (CCA) Rules to be enquired into – Under such circumstances it is not for the disciplinary authority to formulate any opinion as to whether any ground exists to enquire into the complaint or not and it shall be for the Complaints Committee to do such exercise.

CCS (Conduct) Rules – Rule 3(1)(iii) – ‘misconduct’ – ‘sexual harassment’ in the workplace – Whether a compliant preferred by the victim with the allegation of ‘sexual harassment’ in the workplace, has to be scrutinised by the ‘Complaints Committee’ itself, to form an opinion as to involvement of any such instance of sexual harassment before proceeding with further steps or whether it could be examined by the ‘Disciplinary Authority’ at the first instance to see whether it involves any such misconduct to be proceeded with, by the enquiring authority [who is the Complaints Committee in terms of the verdict of the Apex court in Vishaka and others vs. State of Rajasthan and others (AIR 1997 SC 3011)] – Held, no instance of misconduct coming within the purview of Rule 3C of the CCS(Conduct) Rules, constituting an instance of ‘sexual harassment’ or as defined by the Apex Court in Vishaka’s case is made out in Annexure-A10 complaint; and as such, causing the matter to be considered by the Complaints Committee, as now ordered by the Tribunal, can only be a mere academic exercise and nothing more. Accordingly, the direction given by the Tribunal is set aside.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

W.P.(C)No.9695 OF 2008

Dated this the 1st August, 2016

PETITIONER(S)

1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, NEW DELHI.

2. COMPTROLLER AND AUDITOR GENERAL OF INDIA, 10 BAHADUR SHAH ZAFAR MARG, NEW DELHI-110002.

3. ASSISTANT COMPTROLLER AND AUDITOR GENERAL (P), 10 BAHADUR SHAH ZAFAR MARG, NEW DELHI-110002.

4. SRI. RAVINDRAN, THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM.

5. THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM.

6. ONKAR NATH, DISCIPLINARY AUTHORITY, ACCOUNTANT GENERAL (A &E), PUNJAB, PLOT NO.20, SECTOR 17 E, CHANDIGARH-160017.

7. CHAIRPERSON, COMMITTEE FOR REDRESSAL OF SEXUAL HARASSMENT OF WORKING WOMEN, OFFICE OF THE ACCOUNTANT GENERAL, (A & E), KERALA, THIRUVANANTHAPURAM.

8. SENIOR DEPUTY ACCOUNTANT GENERAL(A/C) CELL, OFFICE OF THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM.

BY ADVS.SRI.RAJIV SHAKDHAR (SR) SRI.V.V.ASHOKAN,SC PJ ….2/- ..2.. WP(C).No. 9695 of 2008 (Z) —————————

RESPONDENT(S)

V.S. JAITHA AND 8 OTHERS

R1 TO 8 BY ADVS. SRI.M.K.DAMODARAN (SR.) SRI.P.K.VIJAYAMOHANAN SRI.ALAN PAPALI SRI.N.N.ARUN BECHU

JUDGMENT

P.R. Ramachandra Menon, J.

Whether a compliant preferred by the victim with the allegation of ‘sexual harassment’ in the workplace, has to be scrutinised by the ‘Complaints Committee’ itself, to form an opinion as to involvement of any such instance of sexual harassment before proceeding with further steps or whether it could be examined by the ‘Disciplinary Authority’ at the first instance to see whether it involves any such misconduct to be proceeded with, by the enquiring authority [who is the Complaints Committee in terms of the verdict of the Apex court in

Vishaka and others vs. State of Rajasthan and others, AIR 1997 SC 3011

is the basic point to be considered in this writ petition.

2. The petitioners were the respondents before the Tribunal. The office of the 5 th petitioner was being held by the 4 th petitioner in his capacity as the Accountant General (A&E) Kerala. During the relevant time, the Accountant General’s office was entrusted with the task of implementation of one rank one pension scheme for the State Government employees in the year 2006. Considering the need of the hour and the requisite output to be achieved in a time bound manner, the 4 th petitioner (who was the 4 th respondent) decided to outsource a part of the work to an outside agency, which was to the chagrin of some of the employees who agitated against it. A ‘dharna’ was convened by the agitating employees and their association in the portico of the AG’s office during the period from 19.12.2006 to 22.12.2006. According to the 4 th /5th petitioner, the agitators were virtually blocking the way to the office by sitting in front of the office and the 4 th /5th petitioner had no other way to enter and exit the office. The agitation was mainly in connection with the suspension of another employee by name Santhosh Kumar, a member of their Association pursuant to the alleged misconduct committed by him in causing disturbance to a ‘Training programme’ arranged by the 4 th/5 th petitioner. The frequent interruption made by him questioning the outsourcing of the work and also in obeying the orders issued by the 4 th/5th petitioner. The agitation was going out of proportion and several persons from outside also joined the team.

3. On 19/20.12.2006, particularly during lunch break and such other time, the 4 th /5th petitioner had to cross through the agitators making use of the little space available in between to have entry and exit to his office. This, according to the 4 th petitioner was done by him without causing any embarrassment to anybody and still, in order to precipitate the issue and take it to wrong dimensions, the respondents 1 to 9 filed Annexures A- 10 complaint dated 12.01.2007 before the Chairperson of the Committee for redressal of sexual harassment on working women. As the Chairperson (a lady officer) was a subordinate officer of the 4 th/5th petitioner, in terms of clauses (f) and (g) of Annexure-R1 Circular dated 24.01.2000, the complaint was forwarded to the headquarters at New Delhi, as per Annexure A11 dated 05.02.2007. The competent authority called for a report and after considering the same and also after going through the contents of Annexure A10 complaint observed that no instance of any sexual harassment was involved in AnnexureA10 and the position was ordered to be informed to the parties concerned. This in turn was communicated to the employees as per Annexure-A13 dated 22.03.2007, that the complaint did not come within the purview of any instance of sexual harassment to be enquired into.

4. The 4 th petitioner was of the view that the respondents had joined hands to send a frivolous complaint of serious magnitude involving sexual harassment to the higher authorities and that it amounted to a ‘misconduct’, in terms of