Nagaram Balakrishna vs State Of Ap
2021 Latest Caselaw 1694 AP

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                 WRIT PETITION NO.24885 OF 2020

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India questioning the action of the first respondent

in issuing G.O.Rt.No.1567 General Administration (SEB.I)

Department dated 12.10.2020, thereby suspending the petitioner

basing on the report of the fifth respondent as illegal, arbitrary and

contrary to the provisions of Sexual Harassment of Women at

Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for

short 'the Act') and consequently suspend G.O.Rt.No.1567 dated

12.10.2020 issued by the first respondent.

The factual matrix of the case is as follows:

The petitioner while working as Enforcement Superintendent

in Special Enforcement Bureau, Guntur Division, Guntur District ,

seized Non-Duty Paid Liquor which was being transported illegally.

The petitioner holds recognition for detecting 177 cases, arrest of

401 accused, seizing 12939 bottles of liquor and 139 vehicles

including lorries and four wheelers, to show that he worked with

sincerity and honesty in his duties. The contention of the petitioner

is that, having an evil eye on his sincerity, few political leaders and

his colleagues hatched a plan to frame him and published a news

article in the month of July, 2020 stating that one higher official in

Special Enforcement Bureau Wing is harassing women. On the

anonymous complaint, a belt case was registered at Special

Enforcement Bureau Station, Pedakurapadu on 07.09.2020.

MSM,J WP.No.24885 of 2020

During investigation, on 10.09.2020, a cell phone belonging to one

Brahmam, salesman of government retail outlet of Lemalle village

was handed over to one Ch. Geetha, Sub-Inspector, Pedakurapadu

(henceforth referred as 'victim') through Assistant Excise

Superintendent as part of duty.

The petitioner, being a superior officer, instructed the Sub-

Inspector to send the screenshots of the liquor bottles, content in

the cell phone and copy the same into a compact disk. It is alleged

that the content in the cell phone contained explicit sexual photos

and videos of women. The victim was disturbed on seeing the

content in the mobile. Thereupon, she lodged a complaint to the

second respondent through her husband on 11.09.2020 on the

ground of sexual harassment, stating that the content which was

required to be copied from the cell phone of salesman - Brahmam

was objectionable and it amounts to sexual harassment. It is

stated that the petitioner was not provided with a copy of

complaint in the enquiry process, as mandated under Rule 7 of the

Rules. The petitioner pointed out that, under Section 9(1) of the

Act, only the aggrieved woman has to file a complaint and in case

of her physical or mental incapacity or death, the family members

can make a complaint.

Basing on the complaint, the petitioner was relieved from

duties on the same day i.e. 11.09.220 and attached to second

respondent/Commissioner, Special Enforcement Bureau. The

second respondent constituted a three member committee, which

is allegedly contrary to the provisions of the Act. The said

committee submitted a report to the second respondent, which was MSM,J WP.No.24885 of 2020

in-turn forwarded to the first respondent for necessary action.

Basing on the said report, the first respondent placed the

petitioner under suspension without considering several

representations of the petitioner.

The petitioner alleges that the enquiry which is conducted by

the Special Committee is contrary to the provisions of the Act,

since it is constituted specially for the purpose of enquiry against

this petitioner. It is submitted that, as per G.O.Rt.No.1530 dated

12.07.2018, Internal Complaints Committee is formed under the

Act in respect of General Administration Department and as per

proceedings in Rc.No.81/2018/A1 dated 19.04.2018, Internal

Complaints Committee is constituted in Prohibition and Excise

Department. The term of these committees is three years and they

still exist. The petitioner contends that, when the two committees

are officially formed and existing, formation of another Special

Committee for the purpose of this petitioner is bad in law. It is

further contended that, the enquiry is to be conducted either by

third respondent or fourth respondent, which are the two

committees referred above, but not by the fifth respondent.

The petitioner alleges that the Special Committee constituted

consists of three members viz., Smt. A. Rama Devi, Presiding

Officer, Ch. Lavanya and Vivek. Among them, the Presiding Officer

is facing allegations of harassing Scheduled Castes, thus she is

disqualified from conducting an enquiry. The petitioner also

putforth his grievance that all the members in Special Committee

are equal to his cadre and he contends that, to conduct an

enquiry, the officers in the Committee shall be of higher cadre than MSM,J WP.No.24885 of 2020

the petitioner. This apart, the petitioner contended that, as

required under Section 4 of the Act, one member amongst Non-

Governmental Organization or association committed to the cause

of women or a person familiar with the issues related to sexual

harassment shall be nominated and there cannot be any special

committee for each case, thereby, the enquiry is vitiated.

Apart from the above grounds, the petitioner raised the

following additional grounds and they are extracted hereunder:

1. Whether there can be a Special Committee constituted by the 2nd respondent overriding the Internal Complaints Committee constituted by the 1st respondent by G.O.Rt.No.1530 dated 12.07.2018.

2. When the Internal Complaints Committee constituted by G.O.Rt.No.1530 dated 12.07.2018 is in force, can there be a special committee for each case.

3. The 2nd respondent did not refer the case of the petitioner either to the 3rd respondent or to the 4th respondent which is the parent department ICC and specially constituted a committee for the purpose of the case. Thus it is bad in law.

4. Whether the Special Committee constituted by the 2nd respondent complied with Section 4 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, since no member from NGO is present.

5. Since Rule 7(1) requires the aggrieved woman shall make a complaint to the Internal Complaints Committee, whether the enquiry conducted by the 5th respondent bad in law?

6. Since Rule 7(2) requires the Complaints Committee to furnish the copy of the complaint to the petitioner herein, whether the same is bad in law and violative of principles of natural justice and law.

7. Whether the present case deserves a re-enquiry, since no complaint copy is served on the petitioner herein and the procedure established under the Act is not followed?

8. Since the committee which conducted enquiry is not competent and does not have jurisdiction, does the suspension orders suffer illegality and irregularity and the same needs to be set aside.

MSM,J WP.No.24885 of 2020

9. Since the illegality and irregularity are from the inception of the formation of the 5th respondent committee, how far can the report of the 5th respondent committee be considered and can suspension be set aside.

10. When Section 11(1) is clear that Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 that an inquiry as against employee of the department shall be made in accordance with the Service Rules applicable to him, when such is the case, is the petitioner not entitled for a copy of a complaint.

11. Whether any inquiry related to service matter, can be conducted without providing any complaint copy to the employee who is facing allegation?

12. Whether as a part of duty, directing an office who is somewhere else to a copy a content to CD amounts to sexual harassment, since there is no knowledge of what is in the mobile? If so to what extent, whether suspension is bad to that extent?

13. Whether the constitution of India provides for conviction of a person without hearing and whether the same is in violation of Articles 14 and 21 of the Constitution of India.

14. When G.O.Ms.No.134 dated 15.05.2020 Revenue (Excise-I) Department clearly speaks that cadre management shall continue to be exercised by Revenue Excise Department in public interest in order to protect seniority, promotions, and welfare of the personnel, can the Special Enforcement Bureau Act contrary to the same without any jurisdiction and when the petitioner is drawing salary from the Revenue Department?

On the basis of above grounds and additional grounds, the

petitioner requested to declare the action of the first respondent in

issuing G.O.Rt.No.1567 General Administration (SEB.I)

Department dated 12.10.2020 suspending the petitioner from

service, with a consequential direction to set-aside the same.

The first respondent filed counter affidavit, denying material

allegations, while admitting about passing the impugned order,

placing this petitioner under suspension based on the report

submitted by the Committee, while contending that the Internal MSM,J WP.No.24885 of 2020

Complaints Committee constituted under the Act is only for the

employees working under the respective departments. The Special

Enforcement Bureau (SEB) is newly established wing under

General Administration Department. As SEB is new department,

the Internal Complaints Committee is yet to be constituted,

meanwhile to redress the grievance of the complainant (on behalf

of victim), a Preliminary Enquiry Team was constituted to ensure

justice. It is submitted that, the petitioner violated APCS (Conduct)

Rules, therefore, the competent authority is vested with power

under Rule 8(1)(a) of the CCA Rules to place this petitioner under

suspension during pendency of regular enquiry or contemplated

enquiry. Therefore, on the ground that, constitution of Special

Committee when Statutory Committee is existing and without

entrusting the same to the existing committee has no substance

and the same is liable to be rejected.

It is submitted that, the second respondent vide

Ref.C.No.90/2020/SEB/B1 dated 11.09.2020 has constituted an

Enquiry Team to conduct preliminary enquiry (fact finding

enquiry). The Enquiry Team in it's report submitted that, on

10.09.2020 by taking the mobile of the informer cum salesman,

the petitioner and Sri Chandra Sekhar Reddy, Assistant

Enforcement Superintendent have seen the obscene videos and

audios in the mobile of the informant. The same has been admitted

by the petitioner before the Enquiry Team that he has observed the

content in the mobile of the informant. However, the petitioner has

still ordered the victim to download all the obscene videos, private

chats and audios contained in the mobile phone into Compact

Disk and return to him. After the victim has gone through few of MSM,J WP.No.24885 of 2020

the videos in that phone, she made a phone call to the petitioner

and stated that she could not download such videos into compact

disk, as those were very obscene. Even then the petitioner insisted

forcefully that she should get those videos to him. On that, the

victim, being a lady, suffered with mental distress and attempted

suicide. Hence, it is prima facie proved that the petitioner sexually

harassed the victim. To redress the grievance of the complainant

(on behalf of the victim), as the act of the petitioner is in violation

of Rule 3(c) of APCS (Conduct) Rules, 1964, a preliminary Enquiry

Team was constituted.

The first respondent further submitted that, the technical

grounds invented by the petitioner will not stand to any legal

scrutiny, as there is material against this petitioner, for his serious

misconduct.

It is also submitted that, the alleged violation of Sections 4,

7(1) and 7(2) of the Act is neither true nor correct and they are not

relevant for deciding the issue. In so far as G.O.Ms.No.134

Revenue (Excise.I) Department dated 15.05.2020 is concerned with

regard to the allocation of employees and cadre strength between

SEB and the Excise Departments is of no use. It is also submitted

that, Section 11(1) of the Act is also not applicable to the present

facts of the case and therefore, the grounds urged by the petitioner

are not substantiated by any material.

It is further contended that, the petitioner being an employee

of disciplinary force, cannot misbehave or indulge in any such

misconduct of sexual harassment of another employee at the work

place. The action of the second respondent in placing this MSM,J WP.No.24885 of 2020

petitioner under suspension is not a unilateral decision, since

there was a preliminary enquiry to find out the genuineness of the

allegations made in the complaint submitted by the husband of the

victim and based on the enquiry report, found that there is

material prima facie against this petitioner and consequently the

petitioner was placed under suspension in the contemplated

regular departmental enquiry and that there are no illegalities or

irregularities in the order impugned in the writ petition and

requested to dismiss the writ petition.

The petitioner filed reply to the counter affidavit, reiterating

the contentions while denying the procedure followed by the

respondents in placing this petitioner under suspension and he

further contended that the cell phone handed over to the Sub-

Inspector of Police is a part of investigation and not otherwise.

During hearing, learned counsel for the petitioner placed on

record the additional material papers after serving notice on the

respondents and on the basis of the material on record, while

reiterating the contentions urged in the affidavit, in the report, the

Special Committee constituted found that this petitioner is guilty

for one charge while holding the other charges are not proved. But,

still, the second respondent placed this petitioner under

suspension and there is no prima facie material against this

petitioner to conclude that the petitioner is guilty of misconduct.

Whereas, learned Government Pleader for Services-I

supported the action of Respondent Nos. 1 & 2, as regular

departmental enquiry is proposed against this petitioner and

requested to dismiss the writ petition.

MSM,J WP.No.24885 of 2020

Considering rival contentions, perusing the material

available on record, the sole point that arises for consideration is:

"Whether the impugned order placing this petitioner under suspension is in accordance with the provisions of The sexual harassment of women at workplace (Prevention, Prohibition, and Redressal) Act, 2013 and Rules framed thereunder. Whether the report submitted by the Committee is a report within Rule 3(d) of A.P. Civil Services Conduct Rules. If so, whether the proposed regular departmental enquiry is in accordance with law. Otherwise, the order of suspension impugned in this writ petition is liable to be set-aside?

P O I N T:

Undisputedly, the petitioner was working as Superintendent

in Special Enforcement Branch at Guntur. His duty is to prevent

certain crimes, more particularly, offences relating to NDPL. The

petitioner undisputedly found a salesman indulging in

transportation of non-paid duty liquor at Lemalle village. During

investigation, the cell phone of the salesman was seized and

handed over to one Sub-Inspector of Police/victim, through

Assistant Superintendent of Police with a direction to get the

screen shots and copy the content in the cell phone to a compact

disc. Therefore, handing over cell phone of salesman to Sub-

Inspector of Police/victim which was seized as a part of

investigation is not in dispute.

The main grievance of Respondent Nos. 1 and 2 is that,

despite knowing that the cell phone contains sexually explicit

material, asking the alleged victim/Sub-Inspector of Police in the

unit of Special Enforcement Bureau amounts to sexual

harassment of women at work place. It is irrelevant whether the MSM,J WP.No.24885 of 2020

petitioner has seen the sexually explicit material contained in the

cell phone of the salesman who was nabbed during investigation.

Collection of material during investigation is a part of duty of the

Excise officials while working in Special Enforcement Bureau.

Seizure of cell phone of the salesman and getting the contents

copied to compact disk is part of investigation, being the

investigating agency. Therefore, such act would constitute sexual

harassment at work place or not is a question to be decided prima

facie.

The word "sexual harassment" is defined under Section 2(n)

of the Act as follows:

'sexual harassment' includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

Keeping in view of the definition of sexual harassment, it is

necessary to examine whether asking the victim to take

screenshots and copy the content from the cell phone to compact

disk from the cell phone of the salesman who is an accused in

crime would fall within the definition of sexual harassment.

The allegations do not attract clause (i) to (iv) of Section 2(n)

of the Act. But, with regard to clause (v) of Section 2(n), it is a non-

verbal contract of sexual nature. It is a part of investigation done

by the petitioner being a police officer while discharging her duties.

Whether or not, the petitioner is aware about the contents, the

victim/woman employee is bound to take screenshots and copy the MSM,J WP.No.24885 of 2020

content from the cell phone, as directed by her superior

officer/petitioner herein, as it is part of her duty or entrust to any

other competent employee to get the screenshots and content from

the cell phone of the accused. 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 it is for limited

purpose of deciding the present writ petition and it will not operate

as precedent in any subsequent matter.

The main grievance of this petitioner is that, the complaint

was given by the husband of the alleged victim and he is

incompetent to make such complaint.

Chapter IV of the Act deals with 'Complaint'. Section 9 deals

with complaint of sexual harassment. Complaint means and

includes,

(1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:

Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:

Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section."

Thus, Section 9 of the Act not only deals with competency of

the person as to make complaint, but also specified time limit for MSM,J WP.No.24885 of 2020

making such complaint. As such, the section provides for making

of complaint of sexual harassment by aggrieved woman only by

making complaint in writing of sexual harassment at workplace to

the Internal Committee if so constituted, or the Local Committee if

an Internal Committee is not constituted. But here, in this case,

husband of the victim woman employee lodged a complaint and

consequently it is not in compliance of Section 9 of the Act, taking

cognizance of such complaint made by an incompetent person

when the victim woman is able to make such complaint is a

serious illegality and contrary to the provisions of the Act. On this

ground, the enquiry conducted by the Special Committee

appointed by the second respondent is liable to be set-aside, as

husband of the victim has no locus standi to lodge such complaint.

The other contention is that, when a committee is

constituted in the Excise Department before it's bifurcation, the

same can be treated as Local Committee after bifurcation. But,

constitution of Special Committee for the purpose of enquiry of this

petitioner is an illegality.

Chapter II of the Act deals with Constitution of Internal

Complaints Committee. Section 4 of the Act reads as under:

(1) Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the "Internal Complaints Committee"

Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub- divisional level, the Internal Committee shall be constituted at all administrative units or offices.

(2) The Internal Committee shall consist of the following members to be nominated by the employer, namely:

(a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees: Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated MSM,J WP.No.24885 of 2020

from other offices or administrative units of the workplace referred to in sub-section (1): Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation;

(b) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;

(c) one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:

Provided that at least one-half of the total Members so nominated shall be women.

(3) The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.

(4) The Member appointed from amongst the non-governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed.

(5) Where the Presiding Officer or any Member of the Internal Committee,-

(a) contravenes the provisions of section 16; or

(b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or

(c) he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or

(d) has so abused his position as to render his continuance in office prejudicial to the public interest, such Presiding Officer or Member, as the case maybe, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.

Iin the present case, the explanation of the respondents is

that, since the Special Enforcement Directorate for the State is

recently established, thereby no such Committee as required under

Section 4 is constituted. Therefore, a Special Committee was

constituted for the purpose of enquiry. No doubt, this committee is

constituted newly and no Internal Complaint Committee was

constituted as contemplated under Section 4 of the Act. In the

absence of any Internal Complaint Committee, a complaint can be MSM,J WP.No.24885 of 2020

made to Local Complaint Committee, as prescribed under

Section 5 of the Act.

Section 6 deals with Constitution and jurisdiction of Local

Complaints Committee, it reads as under -

(1) Every District Officer shall constitute in the district concerned, a committee to be known as the "Local Complaints Committee" to receive complaints of sexual harassment from establishments where the Internal Complaints Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.

(2) The District Officer shall designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Complaints Committee within a period of seven days.

(3) The jurisdiction of the Local Complaints Committee shall extend to the areas of the district where it is constituted.

Section 7 deals with Composition, tenure and other terms

and conditions of Local Complaints Committee. According to it:

"(1) The Local Complaints Committee shall consist of the following members to be nominated by the District Officer, namely:

(a) a Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women;

(b) one Member to be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district;

(c) two Members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, which may be prescribed:

Provided that at least one of the nominees should, preferably, have a background in law or legal knowledge: Provided further that at least one of the nominees shall be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community notified by the Central Government, from time to time;

(d) the concerned officer dealing with the social welfare or women and child development in the district, shall be a member ex officio.

(2) The Chairperson and every Member of the Local Committee shall hold office for such period, not exceeding three years, from the date of their appointment as may be specified by the District Officer.

(3) Where the Chairperson or any Member of the Local Complaints Committee MSM,J WP.No.24885 of 2020

(a) contravenes the provisions of section 16; or

(b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or

(c) has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or

(d) has so abused his position as to render his continuance in office pre-judicial to the public interest, such Chairperson or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.

(4) The Chairperson and Members of the Local Committee other than the Members nominated under clauses (b) and (d) of sub- section (1) shall be entitled to such fees or allowances for holding the proceedings of the Local Committee as may be prescribed."

A bare look at the provisions of the Act, more particularly,

Sections 4 to 7, in the absence of Internal Complaint Committee, a

Local Committee is competent to act on a complaint of sexual

harassment at work place. But here, for different reasons known to

Respondent Nos. 1 and 2, a Special Committee was constituted

without referring the complaint of the victim to the Local

Committee. Therefore, it is another illegality committed by the

respondents. Even assuming for a moment that the Special

Committee is constituted for the purpose of enquiring into the

alleged act of sexual harassment of victim by this petitioner; such

Committee is deemed to be an Enquiry Committee as per Rule 3(d)

of Andhra Pradesh Civil Services (Classification, Control and

Appeal) Rules, 1991 (for short 'APCS (CCA) Rules) and such report

can be taken as an Enquiry Report. But, for the reasons best

known to Respondent Nos. 1 and 2, a Committee consisting of

officers of same rank/lower rank was constituted to inquire into

and submit a report. If, it is a Committee constituted to enquire

into the complaints of sexual harassments at work place, then the

Committee, necessarily consist officers of higher rank than the MSM,J WP.No.24885 of 2020

persons who is facing the enquiry for the alleged act of sexual

harassment.

When a Special Committee constituted by Respondent Nos. 1

and 2 is deemed to be a Committee under Rule 3(d) of APCS (CCA)

Rules, the report submitted by the Committee is deemed to be an

Enquiry Report and a copy of the Enquiry Report placed on record

by the learned counsel for the petitioner where the Committee after

elaborate consideration of material and imputations made therein,

would disclose the same. The findings of the Enquiry Report are

extracted hereunder:

1. Once while conducting route watch, E.S. Balakrishnan has called Sri Nagesh's wife Smt. Ch. Geeta, SI, Pedakurapadu aside and spoke to her for hours together by using obscene language - NOT CONCLUSIVELY PROVED .

2. E.S. Bala Krishnan has called Nagesh's wife Smt. Chunduru Geeta, SI, Pedakurapadu in to a room on the pretext of work and harassed her sexually. As part of this E.S. Bala Krishnaiah commented his wife that don't you go to your husband if your CI does not say so. But we bear it all with pain - NOT CONCLUSIVELY PROVED.

3. On 10.09.2020 by taking the mobile of an informer cum sales man, E.S.

Balakrsihnan and A.E.S Chandra Sekhar Reddy have seen the personal videos and audios of informant. Moreover without bothering that his wife is a 'lady', E.S. Balakrishnan has ordered his wife to download all the Blue Films, private chats and audios contained in the mobile phone into a C.D form and give it to him. On that his wife Geeta suffered with mental distress and attempted suicide. E.S. Balakrishnan has been wontedly harassing his wife sexually - PROVED

Even if this finding is taken into consideration, it is only

asking the victim woman to take screenshots and copy the content

in the cell phone is a part of investigation while discharging duty

by the woman police officer. Ordering enquiry based on the

complaint having no locus standi and constitution of Special

Committee, treating the report of the Special Committee as a fact

finding/preliminary enquiry report is contrary to Rule 3(d) of APCS MSM,J WP.No.24885 of 2020

(CCA) Rules. On this ground also, the order placing this petitioner

under suspension is vitiated by serious irregularity.

Yet, another contention of the petitioner before this Court is

that, the Internal Complaints Committee must consist of several

persons, as specified under Rule 4 of the Rules, one member

amongst Non-Governmental Organization or association committed

to the cause of women or a person familiar with the issues related

to sexual harassment shall be nominated, as such, no person was

included in the Committee as required under Section 4(2)(c) of the

Act.

No doubt, the Committee consists of three officials and none

of them is a member of non-governmental organization or

association committed to the cause of women. Therefore, this is

also a minor irregularity.

Section 11 of the Act deals with Inquiry into the complaint, it

reads as follows:

(1) Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable:

Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police:

Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.

(2) Notwithstanding anything contained in section 509 of the Indian Penal Code (45 of 1860), the court may, when the respondent is MSM,J WP.No.24885 of 2020

convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15.

(3) For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents; and

(c) any other matter which may be prescribed.

(4) The inquiry under sub-section (1) shall be completed within a period of ninety days.

Therefore, specific procedure is contemplated to inquire into

the complaint under Section 11 of the Act and the manner of

Inquiry is dealt in Rule 7 of the Rules. According to it:

(1) Subject to the provisions of section 11, at the time of filing the complaint, the complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witnesses.

(2) On receipt of the complaint, the Complaints Committee shall send one of the copies received from the aggrieved woman under sub-rule (1) to the respondent within a period of seven working days.

(3) The respondent shall file his reply to the complaint along with his list of documents, and names and addresses of witnesses, within a period not exceeding ten working days from the date of receipt of the documents specified under sub-rule (1).

(4) The Complaints Committee shall make inquiry into the complaint in accordance with the principles of natural justice.

(5) The Complaints Committee shall have the right to terminate the inquiry proceedings or to give an ex-parte decision on the complaint, if the complainant or respondent fails, without sufficient cause, to present herself or himself for three consecutive hearings convened by the Chairperson or Presiding Officer, as the case may be:

Provided that such termination or ex-parte order may not be passed without giving a notice in writing, fifteen days in advance, to the party concerned.

(6) The parties shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of the proceedings before the Complaints Committee.

(7) In conducting the inquiry, a minimum of three Members of the Complaints Committee including the Presiding Officer or the Chairperson, as the case may be, shall be present.

Thus, the procedure prescribed under Rule 7 of the Rules,

coupled with Section 11 of the Act has to be strictly adhered to.

MSM,J WP.No.24885 of 2020

However, the learned Government Pleader for Services-I contended

that, the procedure contemplated under Section 11 of the Act and

Rule 7 of the Rules is required to be complied with during final

inquiry. In fact, no preliminary enquiry is contemplated under the

Act. But, if the complaint received by the Committee feels that

there exists prima facie case, then the Committee can proceed to

inquire into the matter strictly adhering to the procedure under

Section 11 of the Act read with Rule 7 of the Rules. But, in the

present case, undisputedly the complaint copy was not sent to this

petitioner and the contention of the learned Government Pleader

for Services-I that, it is not a final enquiry and the procedure is not

required to be complied with is to be rejected, since a Committee

constituted to inquire into the sexual harassment of a woman

employee at working place is deemed to be a Enquiry Committee

under Rule 3(d) of APCS (CCA) Rules and the report shall be

deemed to be a final enquiry report under Rule 3(d) of APCS (CCA)

Rules. But, the inquiry allegedly conducted by the Committee is

totally in violation of Rule 7 of the Rules framed under the Act.

When the inquiry was conducted and report is submitted,

Respondent Nos. 1 and 2 intended to act upon the report, more

particularly, when such report is deemed to be an enquiry report

under Rule 3(d) of APCS (CCA) Rules. It is a final report for all

practical purposes and question of ordering a final enquiry or

contemplated enquiry by Respondent Nos. 1 & 2 against this

petitioner cannot be accepted and at best, Respondent Nos. 1 & 2

may impose penalty in terms of APCS (CCA) Rules.

MSM,J WP.No.24885 of 2020

Yet another lacuna in the procedure followed by the

respondents is, non-compliance of Rule 7(1) i.e. lodging a report

with the police for registration of crime punishable under

Section 509 I.P.C. This is also another lacuna in the procedure

followed by the respondents. Therefore, the entire impugned

proceedings are vitiated by several irregularities.

It appears from the record that the petitioner being a

government servant in the higher cadre is investigating into several

crimes involving kith and kin of political leaders, the petitioner was

made as a scapegoat implicating him in such heinous act of

misconduct. It appears that, it is only to prevent the petitioner

from proceeding with the investigation in the cases registered

against such persons who are kith and kin of bigwigs in the

society. When the alleged sexual harassment is used as a tool to

oppress the senior most government servant, it is difficult for any

officer to discharge his duties without fear or favour.

The procedure adopted by the respondent to place the officer

under suspension is intended to snub/crush the career of the

senior most officer, preventing him from discharging his duty

without fear or favour and to bring him to their terms and work

under their thumb by adopting arm twisting method, to mar him

his future career being most police officer.

If the woman employee stooped to such an extent of making

complaint of sexual harassment against higher officer, while

declining to discharge her duty as a part of investigation or assist

the investigating officer, being a subordinate officer in the

investigation, it would lead to serious consequences in discharging MSM,J WP.No.24885 of 2020

duties by the officer in conducting investigation. Sometimes, the

police or excise officials or some other department officials have to

investigate into several offences involving acts of sexual

harassment. If such act is described as a sexual harassment at

work place, it is difficult to discharge their duties at work place.

Take for instance, a Judicial Officer while dictating judgment to a

lady Stenographer or lady Court Master in a case where such

sexual explicit material is recorded in the First Information Report

or in the evidence, the officer has to dictate the same to the

Stenographer or Court Master. Such dictation is undoubtedly a

sexual explicit material. If it is described as a sexual harassment at

work place, it is difficult for any Judicial Officer to discharge

his/her duty, so also by the Stenographer. Therefore, the act

complained against this petitioner by a person who has no locus

standi in terms of Section 9 of the Act is illegal. Hence, I find that

the procedure followed by the respondents while passing impugned

order of suspension placing this petitioner under suspension is

totally contrary to the provisions of the Act and Rules framed

thereunder; including Rule 3(d) of APCS (CCA) Rules. On this

ground alone, the impugned order is liable to be set-aside.

An order of interim suspension can be passed against the

employee while an inquiry/investigation is pending against him,

and thereby disabling him from performing the duties of his office

on the basis that the contract is subsisting, is always an implied

term in every contract of service. When an officer is suspended in

this sense it means that the Government merely issues a direction

to the officer that so long as the contract is subsisting and till such

time, the officer is legally dismissed, he must not do anything in MSM,J WP.No.24885 of 2020

the discharge of the duties of his office. In other words, the

employer is regarded as issuing an order to the employee which,

because the contract is subsisting, the employee must obey. Where

the power to suspend is provided for either in the contract of

employment or in the statute or the rules framed thereunder, the

order of suspension has the effect of temporarily suspending the

relationship of master and servant with the consequence that the

servant is not bound to render service and the master is not bound

to pay his full salary and allowances.

If the order of suspension is a valid order, it has suspended

the contract of service and the government servant is entitled to

receive only such subsistence allowance as might be payable under

the rules and regulations governing his terms and conditions of

service. As an employer can suspend an employee pending an

inquiry into his conduct, the only question that can arise on such

suspension will relate to the payment during the period of such

suspension. If there is a provision in the Rules providing for the

scale of payment during suspension, the payment would be in

accordance therewith. On general principles, therefore, the

authority entitled to appoint a public servant would be entitled to

suspend him pending a departmental inquiry into his conduct or

pending a criminal proceeding, which may eventually result in a

departmental inquiry against him.

An order of suspension must be a step in aid to the ultimate

result of the investigation or inquiry. The authority should also

keep in mind the public interest, the impact of the delinquent's

continuance in office while facing departmental inquiry or trial of a MSM,J WP.No.24885 of 2020

criminal charge. The importance and necessity of proper

disciplinary action being taken against government servants for

inefficiency, dishonesty or other suitable reasons, cannot be over

emphasized. While such action may be against the immediate

interest of the government servant, yet it is absolutely necessary in

the interests of the general public for serving whose interests the

government machinery exists and functions. Suspension of a

government servant pending an enquiry is a necessary part of the

procedure for taking disciplinary action against him. (Khem

Chand v. Union of India1).

Ordinarily, a government servant is placed under suspension

to restrain him from availing the further opportunity to perpetrate

the alleged misconduct or to scuttle the inquiry or investigation or

to win over the witnesses or to impede the progress of the

investigation or inquiry, etc. It would also remove the impression,

among members of the service that dereliction of duty would pay.

When serious allegations of misconduct are imputed against a

member of a service, normally it would not be desirable to allow

him to continue in the post where he is functioning. The

government may rightly take the view that an officer, against whom

serious imputations are made, should not be allowed to function

anywhere before the matter has been finally set at rest after proper

scrutiny and holding of departmental proceedings. The purpose of

suspension is generally to facilitate a departmental enquiry and to

ensure that, while such enquiry is going on-it may relate to serious

lapses on the part of a public servant-, he is not in a position to

1963 AIR 687 MSM,J WP.No.24885 of 2020

misuse his authority in the same way in which he might have been

charged to have done so in the enquiry.

The effect on public interest, due to the employee's

continuation in office, is also a relevant and determining factor.

Suspension is a device to keep the delinquent out of the mischief

range. The purpose is to complete the proceedings unhindered.

Suspension is an interim measure in the aid of disciplinary

proceedings so that the delinquent may not gain custody or control

of papers or take any advantage of his position. At this stage, it is

not desirable for the court to find out as to which version is true

when there are claims and counterclaims on factual issues. No

conclusion can be arrived at without examining the entire record.

It is always advisable to allow disciplinary proceedings to continue

unhindered, and the concerned employee kept out of the mischiefs

range. If he is exonerated, he would then be entitled to all the

benefits from the date of the order of suspension. The usual

ground for suspension, pending a criminal proceeding, is that the

charge is connected with his position as a government servant or is

likely to embarrass him in the discharge of his duties or involves

moral turpitude. In such a case a public servant may be

suspended pending investigation, enquiry or trial relating to a

criminal charge.

The power of suspension should, however, not be exercised in

an arbitrary manner and without any reasonable ground or as a

vindictive misuse of power. A suspension order cannot be actuated

by mala fides, arbitrariness, or be passed for an ulterior purpose.

(Ashok Kumar Aggarwal's case (referred supra)). An order of MSM,J WP.No.24885 of 2020

suspension should not be passed in a perfunctory or in a routine

and casual manner but with due care and caution after taking all

factors into account. (Union of India v. Ashok Kumar

Aggarwal2). It should be made after consideration of the gravity of

the alleged misconduct or the nature of the allegations imputed to

the delinquent employee. The authority should also take into

account all available material as to whether, in a given case, it is

advisable to allow the delinquent to continue to perform his duties

in the office or his retention in office is likely to hamper or frustrate

the inquiry. (Ashok Kumar Aggarwal's case). Ordinarily, an order

of suspension is passed after taking into consideration the gravity

of the misconduct sought to be inquired into or investigated, and

the nature of the evidence placed before it, on application of mind

by the disciplinary authority.

Whether the employee should or should not continue in office

during the period of inquiry is a matter to be assessed by the

concerned authority. Ordinarily, the Court should not interfere

with orders of suspension unless they are passed mala fide and

without there being even prima facie evidence on record connecting

the employee with the misconduct in question. The court cannot

act as if it is an appellate forum de hors the power of judicial

review. The Court or the Tribunal must consider each case on its

own facts and no general law or formula of universal application

can be laid down in this regard. Each case must be considered

depending on the nature of the allegations, gravity of the situation

and the indelible impact it creates on the service for the

continuance of the delinquent employee in service pending inquiry

2 (2013) 16 SCC 147 MSM,J WP.No.24885 of 2020

or contemplated inquiry or investigation. The authority should also

keep in mind the public interest of the impact of the delinquent's

continuance in office while facing departmental inquiry or trial of a

criminal charge.

Even if the present case is examined based on the law

referred above, the Court must be slow in interfering with such

suspension orders. When the competent authority recorded its

satisfaction based on the material placed before him along with the

complaint that itself suffice to place a Government servant under

suspension. Though the effect of suspension is serious on the

career of the employee but debarring him from discharging his

duties temporarily is only to avoid his interference or continuously

indulging in such activities prejudicial to the interest of the state.

Normally, an appointing authority or disciplinary authority seeks

to suspend an employee pending inquiry or contemplated inquiry

or pending investigation into grave charges of misconduct or

defalcation of funds or serious acts of omission and commission.

The order of suspension would be passed after taking into

consideration of the gravity of the misconduct sought to be

enquired into or investigated and the nature of evidence placed

before the appointing authority and on application of mind by the

disciplinary authority. Appointing authority or disciplinary

authority should consider the above aspects and decide whether it

is expedient to keep an employee under suspension pending

aforesaid action. It would not be an administrative routine or an

automatic order to suspend an employee. It should be on

consideration of the gravity of the alleged misconduct or the nature

of the allegations imputed to the delinquent employee. The Court MSM,J WP.No.24885 of 2020

or the Tribunal must consider each case on its own facts and no

general law could be laid down in that behalf. Suspension is not a

punishment but is only one of forbidding or disabling an employee

to discharge the duties of office or post held by him. In other

words, it is to refrain him to avail further opportunity to perpetrate

the alleged misconduct or to remove the impression among the

members of service that dereliction of duty would pay fruits and

the offending employee could get away even pending inquiry

without any impediment or to prevent an opportunity to the

delinquent officer to scuttle the inquiry or investigation or to win

over the witnesses or the delinquent having had the opportunity in

office to impede the progress of the investigation or inquiry etc.

But, each case must be considered depending on the nature of the

allegations, gravity of the situation and the indelible impact it

creates on the service for the continuance of the delinquent

employee in service pending inquiry or contemplated inquiry or

investigation. It would be another thing if the action is actuated by

mala fides, arbitrary or for ulterior purpose, the suspension must

be a step in aid to the ultimate result of the investigation or

inquiry. The authority also should keep in mind public interest of

the impact of the delinquent's continuance in office while facing

departmental inquiry or trial of a criminal charge.

In view of the law declared by the Apex Court in various

judgments referred supra, the Court can interfere with such order

of suspension when the order of suspension is tainted by malafides

and contrary to the principles prescribed under law. Here, it is

evident that the impugned order is vitiated by serious irregularities

which I pointed out in the earlier paragraphs. But, so far as MSM,J WP.No.24885 of 2020

malafides are concerned, it is a question of fact to be decided.

However, it is tainted by malice in law, though not malice in fact.

Therefore, the order impugned in the writ petition is liable to be

set-aside. However, this order will not preclude Respondent Nos. 1

and 2 to take appropriate action against the petitioner, strictly

adhering to the provisions of the Act and Rules framed therein,

coupled with APCS (CCA) Rules.

In the result, writ petition is allowed, setting aside

G.O.Rt.No.1567 General Administration (SEB.I) Department dated

12.10.2020. No costs.

Consequently, miscellaneous applications pending if any,

shall stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:23.03.2021

SP