Shri. Hiralal Rama Jadhav vs The Additional Chief Secretary ...
2017 Latest Caselaw 10007 Bom

 Shridhar Sutar                      1                           wp-8080.17.doc


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO. 8080 OF 2017

 Shri. Hiralal Rama Jadhav,
 Age: 53 years, Occupation:Service
 As a Superintendent of Prison, Thane
 Central Jail (Presently under suspension)
 Residing at B-1, 303, Ganga Orchard
 Society, Pinglewasti, Mundhwa Road,
 Pune - 36.                                                ...  Petitioner

             Versus

 1.          The Additional Chief Secretary,
             Home Department,
             Government of Maharashtra,
             Mantralaya, Mumbai

 2.          The Principal Secretary,
             Home Department (Prison),
             Government of Maharashtra,
             Mantralaya, Mumbai

 3.          Additional Director General of
             Police and Inspector General
             Prison (M.S.) having his office at
             Central Building, Pune-1                      ... Respondents 

                                        .....
 Mr. A. V. Anturkar, Senior Advocate i/b Mr. Prashant Bhavake for 
 the Petitioner.
 Mr.   S.   B.   Talekar   a/w   Ms.   Madhavi   Ayyappan   i/b   Talekar   & 
 Associates for Respondent No.1.
 Mr. O.M. Kulkarni, AAGP for State.
                                        .....




                                                                               1 of 28




::: Uploaded on - 22/12/2017                      ::: Downloaded on - 23/12/2017 02:40:59 :::
  Shridhar Sutar                          2                           wp-8080.17.doc



                    CORAM : SMT. V. K. TAHILRAMANI, Acting C.J. & 
                            M. S. KARNIK, J.

RESERVED ON : 07th DECEMBER, 2017 PRONOUNCED ON: 22nd DECEMBER, 2017

JUDGMENT : [PER M. S. KARNIK, J.]

1. Rule. Rule made returnable forthwith. By consent of the

parties, heard finally.

2. The petitioner by this petition under Article 226 of the

Constitution of India, challenges the order dated 10/07/2017

passed by the Maharashtra Administrative Tribunal ( for short, 'the

Tribunal') in Original Application No. 115 of 2017 thereby

dismissing the O.A. filed by the petitioner.

3. The facts in a nutshell are thus :-

The petitioner since 15/02/2016 was holding the post of

Superintendent of Prison, Thane Central Jail, Thane. On

29/08/2016 one lady Constable subordinate to the petitioner

approached the Deputy Inspector General of Prison (for short 'DIG

prison'), Maharashtra State, Pune and submitted a complaint in

2 of 28

Shridhar Sutar 3 wp-8080.17.doc

the form of a statement recorded before the DIG prison, Pune. It

is the contention of the petitioner that the said complaint was

made by the lady constable against him only because the

petitioner did not allot staff quarter to her out of turn. The

petitioner contends that instead of approaching her superior

officers at Mumbai, the lady constable directly approached Smt.

Swati Sathe, DIG (Prisons), Pune. According to the petitioner,

Smt. Swati Sathe in order to take revenge against him, called the

aggrieved woman at Pune and forced her to give statement

against the petitioner. Thereafter, the Inspector General of Police

(Prisons), Mumbai, transferred the aggrieved woman from Thane

Central Jail to Byculla District Jail. Thereafter, on 01/09/2016,

the Inspector General of Police (Prison), Mumbai recorded the

statement of aggrieved woman at Byculla office at Mumbai. The

respondent No.3 on the basis of report submitted by the Inspector

General of Police (Prison) suspended the petitioner on

02/09/2016 as per Rule 4(1)(a) of the Maharashtra Civil Services

(Discipline and Appeal) Rules, 1979 (for short 'the Rules of 1979')

pending departmental enquiry. The petitioner was served with a

charge-sheet on 15/11/2006 alleging misconduct of sexual

3 of 28

Shridhar Sutar 4 wp-8080.17.doc

harassment. It was alleged that the petitioner has committed

misconduct under Rule 3 and Rule 22(A)(1) of the Maharashtra

Civil Services (Conduct) Rules of 1979 ('Conduct Rules' for short).

4. By G. R. dated 23/12/2016, the respondents constituted a

committee headed by Smt. Ashwati Shering Dorje, Additional

Commissioner of Police, Mumbai for conducting a departmental

enquiry against the petitioner for the misconduct of sexual

harassment. By a corrigendum dated 28/02/2017, it was clarified

that the committee headed by Smt. Ashwati Shering Dorje

constituted vide Government Resolution dated 23/12/2016 would

conduct a detailed enquiry against the petitioner in respect of

sexual harassment and accordingly, the internal complaints

committee is constituted under the chairmanship of Smt. Ashwati

Shering Dorje. The respondents submit that the aspect of

disciplinary enquiry was separated thereby.

05. Learned Senior Counsel Shri. Anturkar invited out attention

to the provisions of the Sexual Harassment of Women at

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

short 'the Act of 2013). He has also invited our attention to the

4 of 28

Shridhar Sutar 5 wp-8080.17.doc

provisions of the said Rules of 1979 and the Maharashtra Civil

Services (Conduct) Rules, 1979 (for short 'the Conduct Rules').

06. With the assistance of learned Senior Counsel Shri Anturkar

for the petitioner and learned counsel Shri. Talekar, appearing for

the respondents, we have gone through the impugned Judgment

and order of the Tribunal.

07. Learned Senior Counsel Shri Anturkar assailing the order of

the Tribunal submitted that the committee constituted for holding

enquiry was not in accordance with the provisions of the Act of

2013 and the said committee is not having statutory power to

conduct enquiry against the petitioner. Learned Senior Counsel

submitted that the committee constituted for holding the enquiry,

cannot be an internal complaints committee within the meaning

of Section 5 of the Act of 2013 and therefore, the enquiry

proceeding itself is null and void. In his submission, the aggrieved

woman has not filed the complaint against the petitioner alleging

sexual harassment at the workplace to the Internal Complaint

Committee or the local committee as mandated by the said Act. It

is only on the basis of the statement recorded before Smt. Swati

5 of 28

Shridhar Sutar 6 wp-8080.17.doc

Sathe, the charge-sheet came to be served upon the petitioner and

the enquiry also started under the said Act. Shri. Anturkar, learned

Senior Counsel submits that this procedure is foreign to the said

Act of 2013. The complaint therefore cannot be said to be a

complaint within the meaning of Section 9(1) of the said Act.

Having regard to the definition of 'workplace' and 'employer', at

the workplace of the aggrieved woman i.e. Thane central jail, the

internal committee was very much in existence headed by the

jailor namely Smt. Wagh. Learned Senior Counsel would

therefore submit that entertaining a complaint bypassing the

statutory procedure would vitiate the enquiry which has been

instituted and consequently, the chargesheet issued against the

petitioner is unsustainable. Shri. Anturkar invited our attention to

the provisions of Sub Rule 1 of Rule 7, of the Sexual Harassment

of Women at Workplace (Prevention, Prohibition and Redressal)

Rules, 2013 ('Rules of 2013' or short), to contend that the

procedure laid down therein has not at all been followed.

08. In the submission of the learned Senior Counsel Shri

Anturkar, the Act of 2013 being a central legislation will override

the provisions of the Rules of 1979. In his submission, the Act of

6 of 28

Shridhar Sutar 7 wp-8080.17.doc

2013 provides for a detailed procedure right from the stage of

filing of complaint to the submission of report on the basis of

enquiry to be conducted as per the procedure laid down under the

Act of 2013 and therefore, once the field is occupied by the Act of

2013, the respondents are not justified in initiating disciplinary

enquiry and serving charge-sheet on the petitioner invoking the

provisions of the Rules of 1979. In the submission of learned

Senior Counsel Shri. Anturkar, even the committee constituted by

the G.R. dated 23/12/2016 under the chairmanship of Smt.

Ashwati Shering Dorje is not in accordance with the provisions of

the Act of 2013. He submits that the internal committee as well as

the local committee under the Act of 2013 were already in

existence and having regard to the mandate of the Act the

complaint can only be enquired into by in one of these two

committees.

09. Learned Senior Counsel Shri Anturkar submits that as the

petitioner himself is an employer within the meaning of the Act of

2013 and the allegations are in respect of the workplace of which

he is the employer, the enquiry at the highest could have been

conducted by the local committee constituted under Section 6 of

7 of 28

Shridhar Sutar 8 wp-8080.17.doc

the Act, as the complaint is against the petitioner who is employer

himself. He submits that the constitution of the committee is in

complete contravention of the provisions of the Act of 2013 and

he further submits that the provisions of the Act of 2013 are

mandatory. According to him, the committee has been constituted

in breach of the provisions of Sections 4 and 6. In his submission,

even the complaint has been entertained directly by the DIG

which is not permissible as the complaint has to be made to the

internal committee or the local committee constituted under the

Act.

10. Learned Senior Counsel Shri Anturkar further submits that

assuming that the internal committee constituted by the

corrigendum dated 28/02/2017 is in consonance with the

provisions of the Act of 2013, even in that case the disciplinary

enquiry cannot proceed as the field is occupied by the central

statute viz. the Act of 2013. Learned Senior Counsel would

submit that once the central statute is holding the field the general

provisions of Service Rules will not apply. In his submission, the

corrigendum dated 28th February, 2017 is very clear as the same

specifically refers to the constitution of the committee for

8 of 28

Shridhar Sutar 9 wp-8080.17.doc

conducting detailed inquiry under the Act of 2013. In his

submission, a detailed procedure is provided under the Act for

holding an inquiry and the committees have already been

constituted for holding the inquiry under the said Act. Learned

Senior Counsel would, therefore, submit that the inquiry into the

complaint has to be conducted in consonance with the procedure

laid down under the said Act. He would submit that the "Rules of

2013" provide for an inbuilt safeguard as regards the other relief

to be granted to the complainant during the pendency of the

inquiry. This according to the learned Senior Counsel would go to

show that the Act which is a central legislation will prevail over

the service rules which are framed under Article 309 of the

Constitution of India.

11. Learned Senior Counsel Shri. Anturkar submits that the

issuance of the charge-sheet dated 15/11/2016 is illegal, as the

disciplinary enquiry itself cannot proceed during the pendency of

the enquiry under the said Act. In any case he would submit that

the Constitution of the committee itself is not in consonance with

the provisions of the said Act and therefore also the Tribunal

ought to have allowed the O.A.

                                                                                9 of 28





  Shridhar Sutar                       10                             wp-8080.17.doc

12. Per contra, learned Counsel Shri Talekar appearing on behalf

of the respondents has contended that there is no conflict between

the said Act and the said Rules. Relying on Section 28 of the Act,

he contends that the provisions of the Act do not override the

Service Rules. In his submission, provisions of the Act of 2013 do

not supplement the service rules, but are merely supplementary

which is evident from the reading of Section 28. He further

submits that the provisions of the Act are in addition to and not in

derogation of the provisions of any other law for the time being in

force, which is clear from the language of the Section 28 of the

Act. The rules framed under Article 309 of the Constitution of

India are 'Law' within the meaning of Article 13 of the

Constitution of India and are not contrary to any of the provisions

of the Act.

13. In the submission of learned Counsel, the said Act does not

repeal or abrogate the service rules and in fact reading of the

relevant provisions of Section 13(3)(i) makes it clear that the

provisions of the Act requires the employer or the District officer,

as the case may be to take action for sexual harassment as a

10 of 28

Shridhar Sutar 11 wp-8080.17.doc

misconduct, in accordance with the provisions of the service rules

as applicable.

14. Learned counsel further submits that section 6 of the Act

does not bar the employer to reconstitute internal complaints

committee so as to deal with complaints of sexual harassment

against its officers who themselves are 'employer' within the

meaning of the said Act. Learned counsel submits that the internal

complaints committee has to be constituted by the employer

whereas the local complaints committee is constituted by the

District officer as notified by the appropriate Government under

section 5 of the said Act. In his submission as the State

Government is the 'appropriate Government' within the meaning

of section 2(b) of the Act, it is prerogative of the 'appropriate

Government' to constitute and reconstitute internal complaints

committee under section 4 of the Act so as to achieve the object of

the Act and make the provisions meaningful and workable.

15. Learned counsel further pointed out that as the petitioner

has made allegations against Smt. Swati Sathe, the Government

had to nominate Smt. Ashwati Shering Dorje, who is working as

11 of 28

Shridhar Sutar 12 wp-8080.17.doc

Additional Commissioner of Police, thereby reconstituting the

existing internal complaints committee. In the submission of

learned counsel, as the allegations of sexual harassment are made

against the petitioner who is of the rank of Senior Superintendent,

Central Jail, the committee had to comprise of an officer senior in

rank than him. Learned counsel submitted that as the provisions

of the Act and the service rules operate in distinct and different

spheres altogether, the petitioner is not justified in contending that

the disciplinary proceedings initiated under the service rules stand

vitiated and cannot be proceeded with.

16. We now proceed to analyze the submissions advanced

by the learned Counsel. To appreciate the controversy it would be

material to quote the relevant provisions of the Act of 2013, the

Preamble of which reads thus :-

" An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto."

Definition Clause 2(a) defines "aggrieved woman"

means - (i) in relation to a workplace, a woman, of any age

12 of 28

Shridhar Sutar 13 wp-8080.17.doc

whether employed or not, who alleges to have been subjected to

any act of sexual harassment by the respondent ;

(ii) in relation to a dwelling place or house, a woman of any age

who is employed in such a dwelling place or house ;

2(b) - "appropriate Government" means - (i) in

relation to a workplace which is established, owned, controlled or

wholly or substantially financed by funds provided directly or

indirectly -

(A) by the Central Government or the Union territory

administration, the Central Government ;

                  (B)      by   the   State   Government,   the   State 

 Government ;

(ii) in relation to any workplace not covered under

sub-clause (i) and falling within its territory, the State Government

;

2(f) "employee" means a person employed at a

workplace for any work on regular, temporary, ad-hoc or daily

wage basis, either directly or through an agent, including a

contractor, with or, without the knowledge of the principal

employer, whether for remuneration or not, or working on a

13 of 28

Shridhar Sutar 14 wp-8080.17.doc

voluntary basis or otherwise, whether the terms of employment

are express or implied and includes a co-worker, a contract

worker, probationer, trainee, apprentice or called by any other

such name ;

2(g) "employer" means -

(i) in relation to any department, organization,

undertaking, establishment, enterprise, institution, office, branch

or unit of the appropriate Government or a local authority, the

head of that department, the head of that department,

organization, undertaking, establishment, enterprise, institution,

office, branch or unit or such other officer as the appropriate

Government or the local authority, as the case may be, may by an

order specify in this behalf;

(ii) in any workplace not covered under sub-clause

(i), any person responsible for the management, supervision and

control of the workplace.

Explanation :- For the purposes of this sub-clause "management"

includes the person or board or committee responsible for

formulation and administration of polices for such organization ;

14 of 28

Shridhar Sutar 15 wp-8080.17.doc

(iii) in relation to workplace covered under sub-

clauses (i) and (ii), the person discharging contractual obligations

with respect to his or her employees ;

(iv) in relation to a dwelling place or house, a person

or a household who employs or benefits from the employment of

domestic worker, irrespective of the number, time period or type

of such worker employed, or the nature of the employment or

activities performed by the domestic worker ;

2(h) "Internal Committee" means an Internal

Complaints Committee constituted under section 4 ;

2(i) "Local Committee" means the Local Complaints

Committee constituted under section 6 ;

2(n) "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.

                                                                             15 of 28





  Shridhar Sutar                              16                               wp-8080.17.doc

17. Section 4 provides for "Constitution of Internal

Complaints Committee". Section 6 provides for constitution of

local committee. Section 9 of the said Act provides for "Complaint

of sexual harassment", the relevant provision for Section 9(1)

reads thus :-

"9. Complaint of sexual harassment - (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 with the said period."

                                                                                         16 of 28





  Shridhar Sutar                             17                               wp-8080.17.doc

18. Section 11 makes provision for inquiry into the

complaint. The relevant provision for Section 11(1) reads thus :-

"11. Inquiry into complaint - (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 ot 1860), and any other relevant provisions of the said Code where applicable."

19. Section 13 provides for "Inquiry report". The relevant

portion of which reads thus :-

"13. Inquiry report - (1) On the completion of an inquiry under this Act, the Internal committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.

(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer

17 of 28

Shridhar Sutar 18 wp-8080.17.doc

that no action is required to be taken in the matter.

(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be -

(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed ;

(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:"

20. Chapter VI which provides for "Duties of employer".

One of the duties of the employer provided by Section 19 is every

employer shall (i) treat sexual harassment as a misconduct under

the service rules and initiate action for such misconduct.

21. Section 28 provides for the act to be not in derogation

of any other law. Section 28 reads thus :-

"28. Act not in derogation of any other law. - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."

18 of 28

Shridhar Sutar 19 wp-8080.17.doc

22. In exercise of powers conferred by Section 29 of the

Act, the Central Government has made the Rules of 2013. Rule 7

and 8 which are relevant for determination of the present

controversy read thus :-

"Rule 7. Manner of inquiry into complaint - (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 :

19 of 28

Shridhar Sutar 20 wp-8080.17.doc

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.

Rule 8. Other relief to complainant during pendency of inquiry - The Complaints Committee at the written request of the aggrieved woman may recommend to the employer to -

(a) restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, and assign the same to another officer ;

(b) restrain the respondent in case of an educational institution from supervising any academic activity of the aggrieved woman."

23. In exercise of the powers conferred by proviso to

Article 309 of the Constitution of India, the Government of

Maharashtra has made the Conduct Rules of 1979. The relevant

portion of Rule 3 is as under :-

"3. Duty of Government servant to maintain integrity, devotion to duty, etc. - (1) Every Government servant

20 of 28

Shridhar Sutar 21 wp-8080.17.doc

shall at all times -

(i) maintain absolute integrity ;

(ii) maintain devotion to duty ; and

(iii) do nothing which is unbecoming of a Government servant."

24. Rule 22-A of the said Conduct Rules provides for

prevention of sexual harassment of working woman. Rule 22-A

reads thus :-

"22-A - Prevention of sexual harassment of working woman - (1) No Government servant shall indulge in any Act of sexual harassment of any women at her work place. (2) Every Government servant who is in charge of a work place shall take necessary steps to prevent sexual harassment to any workmen at such work place. Explanation - For the purpose of this rule,

(a) "sexual harassment" includes any one or more of the following 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, non-verbal conduct of a sexual nature.

(b) the following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment -

21 of 28

Shridhar Sutar 22 wp-8080.17.doc

(i) implied or explicit promise of preferential treatment in her employment ; or

(ii) implied or explicit threat of detrimental treatment in her employment ; or

(iii) implied or explicit threat about her present or future employment status ; or

(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her ; or

(v) humiliating treatment likely to affect her health or safety.

(c) "workplace" includes, -

(i) any, department, organization, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the Government ;

(ii) hospitals or nursing homes ;

(iii) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto ;

(iv) any place visited by the employee arising out of or during the court of employment including transportation provided by the employer for undertaking such journey.

(v) a dwelling place or a house."

25. In the present case, pursuant to suspending the petitioner

pending enquiry, even the charge-sheet has been issued for the

misconduct of sexual harassment as contemplated by Rule 3 and

Rule 22A (1) of the conduct rules. The respondents have

22 of 28

Shridhar Sutar 23 wp-8080.17.doc

constituted a committee headed by Smt. Ashwati Shering Dorje

who is of the rank of Additional Commissioner of Police thereby

separating the issue of disciplinary enquiry and the committee is

constituted only to inquire into the allegation of sexual

harassment. As is evident from the provisions of the Act, the

purpose of enacting the Act of 2013 is to enquire into the

complaint of sexual harassment by committee duly constituted

and if the allegation so made is proved then the recommendation

is to be made to the employer to take action of sexual harassment

as a misconduct in accordance with the provisions of the service

rules applicable. The respondents have already initiated the

disciplinary proceedings against the petitioner and even the

charge-sheet has been issued. Insofar as the disciplinary

proceedings under the Rules of 1979 are concerned, Rule 22A of

the conduct rules itself provides for sexual harassment as a

misconduct. The said act of 2013 on one hand and the conduct

rules as well as the Rules of 1979 on the other hand clearly

operates in different and distinct fields. Section 28 of the said Act

clearly provides the provisions of the Act shall be in addition to

and not in derogation of the provisions of any other law for the

23 of 28

Shridhar Sutar 24 wp-8080.17.doc

time being in force. The Rules of 1979 and the conduct rules

which are framed under the proviso of Article 309 of the

Constitution are 'law' for the time being in force within the

contemplation of Section 28 of the Act of 2013.

26. We do not find that the provisions of the service rules are in

any manner in derogation of the provisions of the Act. Sub-Section

3 of Section 13 of the said Act clearly provides that when the

internal committee or local committee as the case may be, arrives

at the conclusion that the allegation has been proved, the

committee shall recommend to the employer and the District

officer, as the case may be to take action for sexual harassment as

a misconduct in accordance with the provisions of the service

rules applicable. The provisions of the Act, therefore make it

abundantly clear that it is on the conclusion reached by the

committee that the allegation of sexual harassment is proved that

it has to recommend to the employer for taking action under the

service rules for the misconduct of sexual harassment. It would

also be pertinent to note that Chapter 6 which provides for duties

of employer, one of the duty of the employer provided under

Section 19 is that every employer shall treat sexual harassment as

24 of 28

Shridhar Sutar 25 wp-8080.17.doc

a misconduct under the service rules and initiate action against

such misconduct.

27. We therefore, find that the provisions of the said act do not

in any manner override the provisions of the service rules. On the

contrary, it is the employer's duty under the said Act of 2013 to

treat sexual harassment as a misconduct under the service rules

and initiate action for such misconduct. In this light of the matter,

there is no manner of doubt that the said Act is in addition to the

Service Rules and there is no conflict between them.

28. In our opinion, the provisions of the Act and the service

Rules clearly operate in different and distinct fields. A provision

has already been incorporated viz. Rule 22-A in the conduct rules

treating sexual harassment as misconduct. On the basis of the

complaint made, the respondents have already proceeded against

the petitioner by initiating disciplinary enquiry under the service

rules and also issued a charge-sheet. The respondents have kept

the disciplinary proceedings in abeyance awaiting report of the

committee constituted vide G.R. dated 23/12/2016 and

corrigendum dated 28/02/2017.

                                                                                    25 of 28





  Shridhar Sutar                     26                            wp-8080.17.doc

29. The respondents have reconstituted the internal complaints

committee to be headed by Smt. Ashwati Shering Dorje,

Additional Commissioner of Police who is superior in rank to the

petitioner who himself is working as Superintendent of Police Jails

an 'employer' under the Act of 2013. To further the object of the

Act, it necessitated the State of Maharashtra, being the

appropriate authority to reconstitute the internal complaints

committee to be headed by Smt. Ashwati Shering Dorje,

Additional Commissioner of Police. This reconstitution was

necessitated in view of the allegations made by the petitioner

against Smt. Swati Sathe who was heading the committee prior to

the appointment of Smt. Ashwati Shering Dorje.

30. We do not find any substance in the submission of learned

Senior Counsel Shri Anturkar that as the complaint made by the

aggrieved woman is not made to the internal committee or the

local committee, the enquiry under the Act of 2013 must fail.

Based on the complaint made by the aggrieved woman to superior

authorities, the State of Maharashtra has reconstituted the

internal complaints committee to enquire into the complaint. The

26 of 28

Shridhar Sutar 27 wp-8080.17.doc

said committee as indicated earlier is headed by an officer

superior in rank to the petitioner. We find that there has been a

substantial compliance with the provisions of the Act of 2013.

31. The argument of learned Senior Counsel for the petitioner

that as the internal complaints committee under section 4 and the

local committee under section 6 are already in existence and

therefore the respondents are not justified in reconstituting the

internal compliance committee, is an argument which can only be

stated to be rejected. Under the provisions of the Act, the entire

object of constituting the internal complaint committee is to

inquire into the complaints made by the aggrieved woman and if

it arrives at the conclusion that the allegation is proved, it shall

recommend to the employer to take action for sexual harassment

of misconduct in accordance with the provisions of the service

rules applicable. The misconduct of sexual harassment is already

incorporated in the conduct Rules. We do not find any illegality in

the initiation of the disciplinary enquiry.

32. In this view of the matter, in our opinion, constitution of the

committee as per the G.R. dated 23/12/2016 and corrigendum

27 of 28

Shridhar Sutar 28 wp-8080.17.doc

dated 28/02/2017 cannot be said to be dehors the provisions of

the Act of 2013. Therefore, we do not find any merit in the

contention of the petitioner that the disciplinary enquiry would

stand vitiated in view of the complaint being inquired under the

Act of 2013.

33. We, therefore, do not find any reason to interfere with the

impugned judgment and order of the Tribunal. The petition is

therefore dismissed with no order as to costs. Rule is discharged.

( M. S. KARNIK, J. ) ( ACTING CHIEF JUSTICE )

After pronouncement of the judgment, learned

Counsel for the petitioner prays for continuation of the interim

relief.

Prayer is rejected.

   ( M. S. KARNIK, J. )                      (ACTING CHIEF JUSTICE )




                                                                                28 of 28