Nagaram Balakrishna vs The State Of Andhra Pradesh
2021 Latest Caselaw 4430 AP

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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

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

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

Civil Appeal No.5153 of 2021

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

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

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

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.

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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