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HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.17438 of 2021
ORDER:
This Writ Petition is filed questioning the action of the 2nd respondent in proposing to conduct enquiry against the petitioner stating that the same is contrary to the order dated 23.03.2021 passed in W.P.No.24885 of 2020 and also to hold that the charge memo that was issued on 04.08.2021 is contrary to law as the signatory does not have the jurisdiction.
This Court has heard Sri G. Ramesh Babu, learned counsel for the petitioner and the learned Government Pleader for Services-I appearing for the 1st and 2nd respondents.
The facts are not in dispute in this case. Sri Ramesh Babu submits that the enquiry sought to be initiated against the petitioner cannot be continued in view of the findings of the learned single Judge in W.P.No.24885 of 2020. He points out that the petitioner, who was working as an Enforcement Superintendent, took up investigation and registered a crime in the Special Enforcement Bureau Station, Pedakurapadu, and a mobile phone belonging to a person was seized. It was handed over to one Smt. Ch.Geetha, Sub-Inspector, who is his subordinate, for the purpose of taking a copy of all the data in the phone. It was found that the phone contained sexually explicit material. Basing on the same the husband of the subordinate gave a complaint that his wife was being sexually 2 harassed and that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (in short "the Act-2013") applies to the facts and circumstances. Learned counsel points out that this issue of applicability of Act 2013 was decided by the learned single Judge in W.P.No.24885 of 2020, wherein the learned single Judge held that the act of requesting his subordinate to copy the alleged incriminating material is not sexual harassment etc. He points out that a detailed judgment was written, wherein it was held that the same is not sexual harassment; that the husband has no locus standi to lodge a complaint and that the suspension etc., is bad. Learned counsel points out that in view of these findings the subsequent enquiry into the same cannot be allowed to be proceeded. He also submits that the signatory to the G.O.Rt.No.1275, dated 04.08.2021 is not the appointing authority for the petitioner and that the proceedings, therefore, are without jurisdiction. He relies upon the Division Bench judgment reported in W.P.No.8455 of 2019 and a judgment of this Court in W.P.No.9913 of 2021 in support of his contention.
In reply, learned Government Pleader for Services-I appearing for respondents 1 and 3 strenuously argues that this Court should not enquire into the merits of the matter. He points out that while dealing with the order of suspension, a learned single Judge in W.P.No.24885 of 2020 passed certain orders, but he left an option open in the final conclusion to the respondents to proceed against the petitioner. He points out 3 to the penultimate paragraph of the order, wherein it is clearly held that the 1st and 2nd respondents can take appropriate action against the petitioner adhering to the provisions of the Act, the Rule and APCS (CCA Rules). Without prejudice the learned Government Pleader points out that the Rules framed under Act 14 of 2013 were not considered by the learned single Judge and that Rule 6 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (in short "the Rules") permits a complaint to be made by her relative or friend or by any person who has knowledge of the incident with the written consent of aggrieved woman. He also submits in this case that a Special Enforcement Bureau is carved out of the Excise Department and that policing functions are entrusted to these SEB and, therefore, the signatory to the G.O. dated 04.08.2021 has the necessary authority and power. He relies upon GOs., which are annexed to the counter affidavit, to argue that powers have been delegated to the Commissioner, Special Enforcement Bureau for exercising disciplinary control. Therefore, learned Government Pleader for Services-I supports the order issued and argues that Writ is not maintainable. He also relies upon the judgment of the Hon'ble Supreme Court of India in State of Madhya Pradesh & Another v Akhilesh Jha & Another1 1 Civil Appeal No.5153 of 2021 4 to hold that the disciplinary enquiries should not be interdicted and should be allowed to go to their logical conclusion. COURT:
As mentioned earlier the issue in this matter is about the alleged act of sexual harassment of a lady officer. As mentioned by the petitioner, the Sub-Inspector (Woman Officer) was given a telephone, which was supposedly seized during a raid, and she was asked to copy the material on the phone. This issue fell for consideration before the learned single Judge in W.P.No.24885 of 2020. The question, finding of the learned single Judge shows that he was conscious that he could not enter into the merits of the matter while dealing with a Writ questioning the suspension. Therefore, he clearly held as follows:
"Merely because the petitioner asked the victim to discharge her duties as part of investigation, it would not prima facie amount to subjecting the victim to sexual harassment at work place. But this finding is for the limited purpose of deciding the present writ petition and it will not operate as precedent in any subsequent matter."
Therefore, a reading of this makes it clear that the learned single Judge came to a prima facie conclusion and held that this order would not operate as a precedent in "any subsequent matter". Hence, this Court is of the opinion that this is not a conclusive finding on the merits of the matter. It is also trite to notice that the order was passed in a Writ 5 Petition and not after considering any oral and other evidence on the issue.
The second point that arises for consideration is the finding of the learned single Judge on the maintainability of the complaint given by the husband. As rightly pointed out by the learned Government Pleader the attention of the learned single Judge was not drawn to the Rules. Learned single Judge on the basis of the Section 9 of the Act held that the husband of the victim cannot lodge a complaint and therefore it is not in consonance with Section 9. Rule 6 of the Rules 2013 clearly states that for the purpose of sub section 2 of Section 9 of the Act, wherein the aggrieved woman is unable to make a complaint on account of her physical incapacity a complaint may be made by -
(a) her husband or friend
(b) .....
(c) .....
(d) any person, who has knowledge of the incident with the written consent of the aggrieved women.
This aspect was not brought to the attention of the learned single Judge and that is the reason why IT does not figure in the consideration by the Court. The complaint given by the husband, in the opinion of this Court, cannot be thrown out at the threshold, since her husband definitely fits within the definition of a relative or a friend particularly if the purpose 6 of the Act is taken into account and a purposive interpretation is given. In addition, the complaint can also be lodged with the written consent of the aggrieved woman. Again these are matters of evidence which can be raised and decided in the enquiry. Therefore, in view of the Rule 6 this Court has held that the findings in W.P.No.24885 of 2020 do not preclude the action that has been initiated. It is once again reiterated that in the penultimate paragraph the learned Single Judge left it open to the respondents to take appropriate action. Therefore, this Court holds that both these issues - whether the action amounts to a sexual harassment or not and whether the complaint is validly lodged are not, are the issues which have to be decided during the course of enquiry based upon the defence etc., raised by the delinquent employee / petitioner.
Coming to the other issue that is raised viz., the power of the Director General of Police to initiate departmental proceedings, this Court is of the opinion that the petitioner is on a stronger ground. In para 5 of the counter affidavit of the 1st respondent it is mentioned that the Government is the appointing authority to the cadre of Prohibition and Excise Superintendent and above. In the counter affidavit filed by the 2nd respondent certain documents are enclosed. G.O.Rt.No.952 clearly shows that the Government placed the petitioner under suspension and it is the Government that had revoked the suspension. The G.O.Rt.No.159 talks of the Commissioner's power to enforce general discipline. Apart 7 from this the counsel for the petitioner relied upon the Division Bench judgment in W.P.No.8455 of 2019. In this case the Division Bench held while Section 3 of the Excise Act gives the power to the Commissioner of Prohibition and Excise to enforce the provisions of the A.P. Excise Act, such power cannot be construed as a power exercised by the appointing authority with regard to the service matters. It held that the Government alone is competent to do so. To the same effect in the later judgment of this Court following the Division Bench judgment in W.P.No.9913 of 2021 the Government alone is the competent authority to take action against him. The mere fact that a new department is carved out does not entitle the Director General of Police to initiate the enquiry. It is the 1st respondent alone which can issue the charge memo.
Considering the seriousness of the alleged offence and the other factors, which are urged in the Writ Petition, this Court is of the opinion that the Writ Petition is to be partially allowed. Therefore, it is held that the order passed by the learned single Judge in W.P.No.24885 of 2020 does not preclude the holding of the enquiry against the petitioner. However, it is held that the charge memo issued by the 2nd respondent is not valid in law.
This order will not come in the way of the petitioner's initiating action in accordance with Act and Rules and the APCS (CCA) Rules.
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The Writ Petition is partially allowed as mentioned above. No order as to costs.
Consequently, the Miscellaneous Applications, if any, pending shall stand closed.
__________________________ D.V.S.S.SOMAYAJULU, J Date:02.11.2021.
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