The State Of Maharashtra, Through ... vs Shri. Hiralal Rama Jadhav
2017 Latest Caselaw 10008 Bom

                                                               Civil WP 11384-17.doc

DDR

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                              CIVIL APPELLATE JURISDICTION

                            WRIT PETITION NO. 11384 OF 2017

       1. The State of Maharashtra
       2. Dr. Bhushan K. Upadhyay
       3. Smt. Swati Sathe
       4. Shri N.B. Vaichal                                  ...Petitioners
             vs.
       Shri Hiralal Rama Jadhav                              ...Respondent 

                                         ...........
       Mr.   A.Y.   Sakhare,   Senior   Advocate   along   with   Mr.   Rohan   S. 
       Mirpury & Mr. O.M. Kulkarni, AAGP for the State/Petitioner in 
       Writ Petition No.11384/2017.


       Mr. A.V. Anturkar, Senior Advocate i/by Mr. Prashant Bhavake, 
       Advocate for the respondents in Writ Petition No.11384/2017.
                                        ...........

                        CORAM : SMT. V.K. TAHILRAMANI ACTING C.J.  
                                       AND M.S.KARNIK, J.

RESERVED ON : 7th DECEMBER, 2017.

PRONOUNCED ON : 22nd DECEMBER, 2017.

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JUDGMENT (PER : M.S. KARNIK, J.) :-

Rule. Rule heard forthwith by consent of parties.

2. The challenge in this petition filed under Article 226

of the Constitution of India by the petitioner - State of

Maharashtra is to an order passed by the Maharashtra

Administrative Tribunal, Mumbai ('Tribunal' for short) in

O.A.No. 919 of 2016. The Tribunal interfered with the order of

suspension dated 2/9/2016 and directed the petitioners to

reinstate the respondent within a period of four weeks and give

him an appropriate posting in the post of Superintendent of Jails

or equivalent post.

3. The facts in a nutshell are thus :-

The petitioner was posted as Superintendent of Jails,

Central Jail, Thane. One lady employee subordinate to the

petitioner, made a complaint against him levelling allegations of

sexual harassment. The complaint was initially made to the

petitioner No.3 who at that relevant point of time was DIG,

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Prisons at Pune. Thereafter, the order of suspension dated

2/9/2016 was issued against the respondent by petitioner No.2.

The order of suspension was passed under provisions of Rule 4

of the Maharashtra Civil Services (Discipline and Appeal) Rules,

1979 (hereinafter called as "D & A Rules"). Having regard to the

nature of the complaint, the provisions of the "Sexual

Harassment of Women at Workplace (Prevention, Prohibition

and Redressal) Act, 2013 (hereinafter referred to as "the said

Act" for short) were also invoked.

4. The record indicates that by an order dated 2 nd

September, 2016, the petitioner came to be suspended invoking

the power conferred by Rule 4 (1)(a) of D & A Rules. The

charge-sheet was issued on 15th November, 2016 and

accordingly for the alleged incident of sexual harassment the

petitioner was charged for committing misconduct under Rule 3

and Rule 22 (A) (1) of the Maharashtra Civil Services (Conduct)

Rules, 1979 (hereinafter referred to as "the conduct rules" for

short).

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5. It is a matter of record that initially internal

committee was to be chaired by the petitioner No.3, later on

however the constitution of the committee was changed and it

was ordered to be chaired by Mrs. Ashwati Dorje, Additional

Commissioner of Police, Mumbai. In so far as the present

petition is concerned, the issue as regards the legality of the

suspension order dated 2/9/2016 arises for consideration.

6. To decide the controversy the admitted facts are

these :-

(a) On the alleged complaint of sexual harassment, by

an order dated 2nd September, 2016, the respondent was

suspended as the inquiry against him was contemplated. By

memorandum dated 15th November, 2016 an inquiry was

initiated against the respondent in exercise of the powers

conferred by Rule 8 of D & A rules.

(b) In respect of the allegations of the sexual

harassment, the respondent was charge-sheeted for violating

Rule 3 and Rule 22 (A)(1) of the Conduct Rules.

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(c) For conducting a departmental inquiry against the

respondent, by a Government Resolution dated 23 rd December,

2016 a committee was constituted under the chairmanship of

Smt. Ashwati Dorje, Additional Commissioner of Police, Mumbai

to hold a departmental inquiry.

(d) By a corrigendum dated 28th February, 2017 to the

Government Resolution dated 23rd December, 2016, it was

clarified that the Internal Complaints Committee is formed to

inquire into the allegations of sexual harassment under the

chairmanship of Smt. Ashwati Dorje. The Committee thus was

only to inquire into the allegations of sexual harassment under

the said Act and the issue of disciplinary enquiry was separated.

The respondents have taken a stand that the disciplinary enquiry

is kept in abeyance awaiting the report of the Internal

Complaints Committee so constituted.

7. It is thus seen that by the corrigendum dated 28 th

February, 2017, Government Resolution dated 23 rd December,

2016 came to be modified. Thus, Internal Complaints

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Committee was constituted to conduct detailed inquiry into the

allegations of the sexual harassment against the respondent.

8. Nothing has been brought on record to indicate that

the respondents have revoked the charge-sheet dated 15 th

November, 2016.

9. Learned Senior Counsel Shri Sakhare appearing for

the petitioners assailed the order of the Tribunal. In his

submission, after placing the respondent under suspension by an

order dated 2nd September, 2016, the departmental inquiry was

initiated by an order dated 19th November, 2016 and charge-

sheet was thereby issued against the respondent. Learned Senior

Counsel Shri Sakhare relying upon the relevant provisions of the

D & A Rules and the Conduct Rules pointed out that the

petitioners invoked the provisions of Section 4 of the D & A

Rules for suspending the respondent. In his submission, the

provisions of the said Act and the provisions of the D & A Rules

as well as the Conduct Rules operate in distinct and different

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fields. He submits that a charge-sheet has been issued against

the respondent for alleged misconduct under Rule 3 and 22 (A)

of the Conduct Rules. Relying upon the Section 28 of the said

Act, Shri Sakhare contended that the provisions of the said Act

shall be in addition to and not in derogation of the provisions of

any other law for the time being in force. In his submission, the

D & A Rules framed under Article 309 of the Constitution of

India is "law" for the time being in force. In his submission, the

provisions of the said Act do not override the provisions of the

Rules. He therefore submits that the power of suspension is in

addition to the interim measures provided under the said Act.

10. Per contra, the learned Senior Counsel Shri Anturkar

appearing on behalf of the respondent invited our attention to

the order passed by the Tribunal and advanced his submissions

in support of the said order. In his submission, once by the

corrigendum dated 28th February, 2017, the Government having

taken a decision to constitute the internal committee as per

Section 4 of the said Act, then in respect of the inquiry into the

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alleged sexual harassment, the field is occupied by the central

statute viz. the said Act. In his submission, the departmental

inquiry itself cannot proceed with. Learned Senior Counsel

would submit that once the central statute is holding the field

the general provisions of D & A 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 conducting detailed inquiry under the said Act. In

his submission, a detailed procedure is provided under the Act

for holding an inquiry and the committee has thereby 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. Relying upon the

provisions of the said Act, learned Senior Counsel submits that if

detailed provisions are made for interim arrangements during

the pendency of the inquiry conducted under the said Act then

the powers under the D & A Rules cannot be invoked. According

to him, during the pendency of the inquiry under the said Act

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only the interim measures provided under the said Act can be

resorted to. The order of suspension would thereby loose its

efficacy and the same would render itself inconsequential and

inoperative. He would submit that the rules framed under

"Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Rules, 2013 (hereinafter referred to

as "Rules of 2013" for short) 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 rules which are framed under

Article 309 of the Constitution of India.

11. Learned Senior Counsel would, therefore, submit

that the Tribunal upon considering the relevant provisions of the

Act has rightly come to the conclusion that the order of

suspension has to be set aside. Learned Senior Counsel submits

that suspension is not one of the measures contemplated by

Section 12 of the said Act and therefore, so long of the inquiry is

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conducted under the provisions of the said Act, the suspension

made under D & A Rules cannot continue.

12. We may 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 said

Act, 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

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

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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

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,

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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 ;

(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,

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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.

13. Section 4 provides for "Constitution of Internal

Complaints Committee". Section 9 of the said Act provides for

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"Complaint of sexual harassment", the relevant provision of

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."

14. Section 11 makes provision for inquiry into the

complaint. The relevant provision of 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

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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."

15. Section 12 provides for "action during pendency of

inquiry" which reads thus :

"12. Action during pendency of inquiry - (1) During the pendency of an inquiry on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to -

(a) transfer the aggrieved woman or the respondent to any other workplace ; or

(b) grant leave to the aggrieved woman up to a period of three months ; or

(c) grant such other relief to the aggrieved woman as may be prescribed.

(2) The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.

(3) On the recommendation of the Internal Committee or the Local Committee, as the case may be, under sub-section

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(1), the employer shall implement, the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be."

16. 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 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 ;

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(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:"

17. Chapter VI 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.

18. 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."

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

said Act, the Central Government has made "The Sexual

Harassment of Women at Workplace (Prevention, Prohibition

and Redressal) Rules, 2013. Rule 7 and 8 which are relevant for

determination of the present controversy read thus :-

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"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 : 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

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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."

20. In exercise of the powers conferred in proviso of

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 shall at all times -

(i) maintain absolute integrity ;

(ii) maintain devotion to duty ; and

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

21. 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 -

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

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(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."

22. It would also be material to refer to Rule 4 of the D

& A Rules which provides for suspension of a Government

servant where a disciplinary proceeding against him is

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contemplated or is pending. The relevant portion of Rule 4 (1)

reads thus :-

"4. Suspension - (1) The appointing authority or any authority to which the appointing authority is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Governor by general or special order may place a Government servant under suspension -

(a) where a disciplinary proceeding against him is [contemplated] or is pending, or

(b) where in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State, or

(c) where a case against him in respect of any criminal offence is under investigation, inquiry or trial : Provided that, where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority, the circumstances in which the order was made."

23. Rule 8 of the D & A Rules provides the procedure for

imposing major penalties. Rule 8 reads as under :-

"Rule 8. Procedure for imposing major penalties - (1) No order imposing any of the major penalties shall be

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made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 9, or where such inquiry is held under the Public Servants (Inquiries) Act 1850 (37 of 1850), in the manner provided in that Act. (2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. [Provided that, where there is a compliant of sexual harassment within the meaning of rule 22A of Maharashtra Civil Service (Conduct) Rules, 1979, the Complaints Committee established in each Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules.]"

24. Placing reliance on the above mentioned provisions,

it is the contention of the learned Senior Counsel Shri Anturkar

that as the respondents have constituted a committee to

examine the complaint as provided under the said Act and as a

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decision has been taken to conduct an inquiry under the said

Act, the respondents can resort to only the interim measures as

provided under Section 12 of the said Act. In his submission, as

the Central legislation viz. the said Act holds the field,

continuing the suspension under Rule 4 of D & A Rules is not at

all permissible and sustainable.

25. In our opinion, the view taken by the Tribunal that

resort to the provisions of D&A Rules can be taken at only after

the inquiry under the said Act results in the conclusion that the

allegations against the respondent are proved, is unsustainable.

The D & A rules and the Conduct Rules which are framed under

the proviso to Article 309 of the Constitution of India is "law" for

the time being in force within the contemplation of Section 28 of

the said Act. Section 28 of the said Act clearly provides the

provisions of the said Act shall be in addition to and not in

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

in force.

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26. We do not find Rule 4 of the D & A rules is in any

manner in derogation of the provisions of the said Act. It is not

in dispute that the charge-sheet has already been issued and the

disciplinary inquiry into said charge for violating the rule 3 and

rule 22(A)(1) of the Conduct Rules is pending. By way of

corrigendum dated 28/2/2017 the issue of disciplinary inquiry

came to be separated from the complaint of sexual harassment

under the said Act. The disciplinary inquiry was kept in

abeyance by the petitioners awaiting the report of the

committee.

27. A reading of Section 12 of the said Act would go to

show that it is upon the written request made by the aggrieved

woman that the local committee may recommend to the

employer to adopt one of the interim measures mentioned

therein. Even Rule 8 of the said Rules of 2013 provides for the

interim recommendations to be made during the pendency of

the inquiry upon written request of the aggrieved woman. Sub-

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section (i) of Section 19 provides that every employer shall (i)

treat sexual harassment as a misconduct under the service rules

and initiate action for such misconduct. In fact sub-section (3) of

Section 13 clearly provides that when the internal committee or

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 and the District Officer, as the

case may be to take action for sexual harassment as a

misconduct in accordance with the provisions of Service Rules

applicable to the respondent.

28. The provisions of the said Act, therefore, make it

abundantly clear that it is upon a conclusion reached by the

committee that the allegation of the 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.

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29. Insofar as the provisions of D & A Rules are

concerned, Rule 22-A of the Conduct Rules itself provides for

sexual harassment as a misconduct for which action has already

been initiated under the D & A Rules. The said Act of 2013 on

one hand and the Conduct Rules as well as the D & A Rules on

the other hand clearly operate in different and distinct fields. In

our opinion, the petitioners can always proceed under the D & A

Rules independent of a complaint made under the said Act of

2013. The power of suspension under Rule 4 of the D & A Rules

or the power to proceed with the inquiry under the said Rules

cannot in any manner be restricted only because a complaint of

sexual harassment is being inquired into by the committee under

the said Act of 2013. The interim measures provided under

Section 12 of the said Act and Rule 8 of the said Rules of 2013

enure to the benefit of the complainant and it is only upon the

written request made by the aggrieved woman that the interim

measures can be resorted to.

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30. The power under Rule 4 of the D & A Rules is a

power to be exercised by the appointing authority to place the

Government servant under suspension where the disciplinary

proceeding is contemplated or is pending. The exercise of this

power under Rule 4 of the D & A rules is not dependent on the

complaint that is being inquired into under the 'said Act'. Any

restraint put on this power under Rule 4 as a result of pendency

of complaint under the 'said Act' would completely defeat

Section 28 of the said Act. In our opinion, the provisions of the

'said Act' are in addition to or not in derogation of the provisions

of the D & A Rules.

31. As is evident from the provisions of the said Act, the

purpose of the said Act is to inquire into the complaint of sexual

harassment by a committee duly constituted and if the

allegation so made is proved then the recommendation is to be

made to the employer to take action for sexual harassment as a

misconduct in accordance with the provisions of the Service

Rules applicable to the respondent.

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32. In the present case, the petitioners have already

initiated the disciplinary proceedings against the respondent and

even the charge-sheet has been issued for the misconduct of

sexual harassment. The petitioners have invoked the power of

suspension under Rule 4 of the D & A Rules pending inquiry. The

petitioners have taken a decision to keep the disciplinary inquiry

in abeyance awaiting the report of the committee on the

complaint made under the said Act. The order of suspension

made under the D & A Rules is not open to challenge on the

ground that the disciplinary authority is awaiting the report of

the committee in the inquiry conducted under the said Act.

33. In our opinion, the Tribunal was in error in coming

to the conclusion that the order of the suspension was

premature. The impugned order passed by the Tribunal,

therefore, calls for interference. The order of the Tribunal is

quashed and set aside. The Writ Petition is allowed.

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34. We make it clear that it would be open to the

respondent to challenge the order of suspension on any other

ground as permissible in law as we have only dealt with the

legality of the suspension order on the ground raised in this

petition. If the order of suspension is challenged before the

Tribunal on any other grounds, the same will obviously be

considered by the Tribunal on its own merits.

35. Rule made absolute in terms of prayer clause (a) and

(b) with no order as to costs.

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