Sukalyan Haldar vs State Of West Bengal And Others
2023 Latest Caselaw 6016 Cal

                      In the High Court at Calcutta
                     Constitutional Writ Jurisdiction
                              Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                          W.P.A.NO. 18829 of 2023

                        SUKALYAN HALDAR
                               VS.
                STATE OF WEST BENGAL AND OTHERS

     For the petitioner            :     Mr. Protik Dhar,
                                         Mr. Siddharth Banerjee,
                                         Mr. S. Dasgupta,
                                         Mr. Ananth Nath Naskar

     For the State                  :    Sk. Md. Galib,
                                         Mr. S. Dewan

     For the respondent

     nos.10 to 14                   :    Mr. Rahul Karmakar,
                                         Mr. Arkadeb Biswas,
                                         Mr. Sutirtha Nayek

     For the respondent no.15       :    Mr. Debashis Banerjee,
                                         Mr. Rakesh Jana

     Hearing concluded on          :     04.09.2023

     Judgment on                   :     08.09.2023



     Sabyasachi Bhattacharyya, J:-

1. The petitioner is a honourary Secretary of the Managing Committee in

the St. Stephen‟s School, Dum Dum governed by the Barrackpore

Diocesan Education Society, functioning within the Diocese of

Barrackpore under the Church of North India.

2. By the impugned order, the Local Complaints Committee (LCC),

District- North 24 Parganas has recommended, on the ground of

alleged sexual harassment, that the petitioner be removed from the

post of Secretary of the said School with immediate effect and should

not be a member of the Executive Committee of the School in future.

Certain other directions were also given regarding an Internal

Complaints Committee (ICC) being made functional in the School.

3. Learned senior counsel appearing for the petitioner submits that the

LCC acted without jurisdiction in making the said recommendation.

4. It is submitted that under the relevant statute, that is, the Sexual

Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013 (hereinafter referred to as, "the 2013 Act"), it is

the ICC which is to deal with allegations of the nature as made against

the petitioner. Hence, the LCC usurped jurisdiction. Learned senior

counsel places Section 4 of the 2013 Act which pertains to

constitution of ICC as well as Section 6, relating to constitution and

jurisdiction of LCC.

5. It is contended that the LCC proceeded to assume jurisdiction on the

premise that there was no proper constitution of ICC in the concerned

School. However, nothing in the Act confers jurisdiction on the LCC

to decide complaints of sexual harassment if there is an ICC in place.

In support of such proposition, learned senior counsel cites Section 9

of the 2013 Act, which provides that any aggrieved woman may make

in writing a complaint of sexual harassment at workplace to the ICC, if

so constituted, or the Local Committee, in case it is not so constituted.

Even if the LCC was of the opinion that the ICC was not "properly"

constituted, the same did not confer an authority on the LCC to decide

the issue.

6. In any event, it is argued that the LCC does not have jurisdiction to

adjudicate on the propriety of formation of the ICC. Section 26 of the

2013 Act provides for penalty for non-compliance of the provisions of

the Act and envisages penalty to be imposed on the concerned

employer if he fails to constitute an ICC under Section 4(1).

7. It is next argued that Section 2(g) of the 2013 Act contemplates an

employer to mean, within sub-clause (i), in relation to any institution,

the head of that institution or such other officer as the appropriate

government or the local authority, as the case may be, may by order

specify in this behalf.

8. Sub-section (ii) of Section 2(g) provides that in any workplace not

covered under sub-section (i), any person responsible for the

management, supervision and control of the workplace, is the

employer. Section 6(1) of the 2013 Act, it is argued, provides that the

LCC shall receive complaints of sexual harassment from

establishments where the ICC has not been constituted due to having

less than 10 workers or if the complaint is against the employer

himself.

9. As per the hierarchy of the Diocese, the Bishop is the head, thus,

being the employer. There are several rungs in hierarchy under the

Bishop. The Bishop, as the President, has under him the Vice

President, under whom the Managing Committee functions, of which

the petitioner is the Secretary. Hence, the petitioner cannot be said to

be the „employer‟ for the purpose of invoking Section 6 and hearing by

the LCC. Insofar as the direction of removal of the petitioner is

concerned, the same, it is argued, is also de hors the law.

10. In Section 13 of the 2013 Act, it is provided under sub-section (3) that

where the ICC or the LCC 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, inter alia to take

action on sexual harassment as a misconduct in accordance with the

provisions of the Service Rules applicable to the respondent or, where

no Service Rules have been made, in such manner as may be

prescribed. The work „prescribed‟ has been defined in Section 2(k) to

mean prescribed by Rules made under the Act.

11. Section 29 of the 2013 Act confers power on the appropriate

government to make rules. The term "appropriate government" within

Section 2(b), it is contended, in sub-clause (i) is the Central

Government or the Union Territory Administration or the State

Government, depending on who provides the funds to finance the

workplace. Under sub-clause (ii), in relation to any workplace not

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

Government is the appropriate government.

12. The only Rules framed under Section 29 of the 2013 Act are the Rules

of 2013. Rule 9 of the said Rules contemplates termination of the

respondent from service as one of the penalties for sexual

harrassment. However, learned senior counsel for the petitioner

argues that as the 2013 Rules have been framed by the Central

Government, but the appropriate government in the present context is

the State Government, by application of Section 2(b)(ii), the said Rules

are not applicable in the present case and, as such, the punishment of

termination from service does not apply to the present petitioner.

13. On merits, learned senior counsel argues that the expression "faltu

meye" has been construed to be "cheap woman" and as a lewd

remark, whereas under the dictionary meaning in the well accepted

Bengali dictionary of A.T. Dev, the expression "faltu" has been defined

as extra, spare, excessive, much, unnecessary, useless. Hence, there

is no lewd context to the same.

14. It is argued that the petitioner was not given access to the documents

relied on by the LCC and, as such, its findings are vitiated by the

violation of principles of natural justice.

15. Learned counsel appearing for the alleged victim, that is, respondent

no.15, argues that irrespective of existence of an ICC, proper or

improper, the LCC rightly assumed jurisdiction, since the allegation

was against the employer himself.

16. Under Section 6(1), if the complaint is against the employer, it is the

LCC and not the ICC which has to decide.

17. By exploring the concept of "employer" in Section 2(g) of the 2013 Act,

it is submitted that sub-clause (ii) and not (i) applies. As per the

same, employer means in any workplace any person responsible for

the management, supervision and control of the workplace. The

explanation provides that it includes the person responsible for

formulation and administration of policies for the organization.

18. Learned counsel for the respondent no.15 places reliance on several

documents annexed to the writ petition to argue that the petitioner,

being the Secretary, is an employer for all practical purposes. Learned

counsel places reliance on a document annexed at page 148 of the

writ petition, to argue that the letter of appointment of the present

respondent no.15/victim was also signed by the Secretary/petitioner.

From the document annexed at page 163, it is also clear that the

designation of the respondent no.15 was changed by the petitioner.

19. At page 164, it is argued, a file note shows that transfer of the

respondent no.15 is also in the hands of the petitioner. Thus, it is

argued that the LCC had exclusive jurisdiction to hear the matter.

20. Learned counsel also places reliance on the enquiry report annexed at

page 76 to show that there was a long antecedent of incidents

preceding the actual verbal abuse which was cited in the impugned

decision, which chain of events goes on to show that each and every

allegation made by the respondent no.15 was correct and the remarks

by the respondent no.15 were indeed in a lewd context.

21. Learned counsel also places reliance on the actual complaint of the

respondent no.15 annexed to the writ petition.

22. Learned counsel appearing for the School Authority submits that the

victim/respondent no.15 herself approached the ICC first and made

her complaint before the said Authority, thereby submitting to its

jurisdiction. Subsequently, the victim thereafter challenged the

jurisdiction of the ICC and moved the LCC.

23. Thus, such afterthought on the part of the respondent no.15 ought to

be deprecated and, in view of the prior submission of the respondent

no.15 herself to the jurisdiction of the ICC, it should be construed that

the ICC and not the LCC had jurisdiction.

24. It is further submitted that the school was never given any

opportunity of hearing. Hence, the recommendation against the

school on the premise that there was no properly constituted ICC

ought to be struck down. It is further argued that as per the

provisions in the 2013 Act, failure of an institution to constitute the

ICC may be visited by penalty under Section 26 of the said Act which,

however, cannot be imposed by the LCC. Hence, the directions

against the school are palpably de hors the law.

25. Upon hearing learned counsel for the parties, the primary basis of the

arguments of the parties is the 2013 Act.

26. The act of sexual harassment alleged and taken note of by the LCC is

the passing of a particular remark within the hearing of the victim

which may, at best, come within the broad purview of Section 2(n)(iii)

that is making sexually coloured remarks. Whether the remark was

lewd or not has to be determined totally in the context in which it was

made, since the expression "faltu" may have different shades of

connotations in the colloquial usage of the Bengali language and may

not always be restricted to its dictionary meanings. The interpretation

applicable in the present case would entirely depend on the backdrop.

27. However, the jurisdictional issues are to be decided first.

28. The scope of functioning of the ICC and the LCC respectively, as well

as their constitution, has been clearly delineated in Sections 4 and 6

of the 2013 Act. The LCC, in the present case, has proceeded to make

certain observations to the effect that the ICC has not been properly

constituted in the concerned school.

29. However, the broader question is whether the LCC had jurisdiction in

law at all to take up the complaint of the victim.

30. Section 6(1) of the 2013 Act clearly provides that the LCC shall receive

complaints of sexual harassment in two cases - where the ICC has not

been constituted due to having less than 10 workers or if the

complaint is against the employer himself.

31. The petitioner has argued that the employer of the Diocese is the

Bishop, and not the Secretary of the Managing Committee.

32. However, a „Diocese‟ is a territorial division based on ecclesiastical

lines under the Church of North India. The concept of „Diocese‟ has

nothing to do with the idea of "workplace" in the 2013 Act.

33. In Section 2(o), various institutions have been defined as workplace.

The most apt is provided in sub-clause (ii) thereof, which includes „any

private sector institution carrying on educational services‟ to be

included within the definition of "workplace". It is the concerned

school, and not the entire Diocese, which is the „workplace‟ under the

2013 Act vis-à-vis the alleged victim.

34. Seen in such context, the Secretary of the Managing Committee of the

school can undoubtedly be classified as "employer". Section 2(g)(ii)

defines "employer" as any person responsible for the management,

supervision and control of the workplace. The explanation is inclusive

and contemplates the person responsible for formulation and

administration of policies for the organization

35. It cannot be in doubt that, by definition, the Secretary of the

Managing Committee is responsible for "management". Supervision

and control obviously lies with the petitioner as well, as evident from

the documents annexed to the writ petition itself. As rightly pointed

out by the respondent no.15, it is the Secretary (petitioner) who was a

signatory authority of the letter of appointment to the petitioner along

with the Principal.

36. Again, it is the petitioner who has the power to change designation of

the employees and did so in case of the victim in the present case vide

communication dated June 27, 2016, annexed to the writ petition as

well.

37. In the file note dated June 27, 2016 signed by the petitioner, the

victim was designated as a primary teacher of the particular

department as mentioned therein.

38. Again, at page 168 it is seen that the Secretary of the Managing

Committee is one of the signatories in the contractual appointment of

the victim. There are several documents galore, annexed to the writ

petition, to show the supervision and control exercised by the

petitioner as the Secretary of the Managing Committee in the

workplace, that is, the school.

39. Hence, the respondent no.15 is justified that it is not the ICC but the

LCC which exercises jurisdiction to receive and decide on complaints

of sexual harassment against the petitioner, who is the employer

himself vis-a-vis the school, under Section 6 of the said Act.

40. The respondents have cited an unreported coordinate Bench judgment

in Sumana Bhowmick Vs. Union of India and others and Balmer Lawrie

& Co. Ltd. Vs. The Deputy Chief Labour Commissioner (Central) and

Ors. [WPO 177 of 2019 and WPA 11842 of

2019][MANU/WB/0152/2023], where the learned Single Judge

observed that whether or not a particular respondent was an employer

within the meaning of the Act would require a fact-finding exercise in

terms of the victim and the accused person‟s nature of duty, the role

of the accused in the management of the company and control over

the members of the ICC. Such a fact-finding exercise, it was held,

cannot be done by the writ court.

41. However, the context of the present circumstances is different insofar

as the said ascertainment does not require any fact-finding enquiry

necessitating evidence to be taken. The admitted documents annexed

to the writ petition are sufficient.

42. Hence, the LCC had the jurisdiction, on such score, to take up the

complaint against the petitioner/Secretary who is the employer.

43. Moving on to the next issue, it been argued by the respondent no.15

that there is a provision for appeal under Section 18 of the 2013 Act

against recommendations made under Section 13 of the said Act.

44. The appellate authority as provided under the Rules of 2013 (Rule 11)

provides that the appellate authority notified under Clause (a) of

Section 2 of the Industrial Employment (Standing Orders) Act, 1946

shall function as the appellate authority under Section 18. Section

18(1) stipulates that the person aggrieved may prefer an appeal in

such manner as may be prescribed.

45. "Prescribed", as defined in Section 2(k), is prescribed by Rules under

the Act.

46. Since the State Government has not made any Rules, the 2013 Rules

shall prevail within the definition of "prescribed" under Section 2(k) of

the 2013 Act, since those are Rules made "under the Act", as defined

in Section 2 (k). The distinction sought to be made by learned senior

counsel for the petitioner regarding "appropriate government" is not

strictly applicable to Section 2(k), since the said provision does not

mention that the Rules are to be made by the „appropriate

government‟, but merely provides that the Rules are to be made under

the Act. Hence, the requirement of law is fulfilled by the appellate

forum as stipulated in Rule 13 of the 2013 Act.

47. Yet, despite the availability of an alternative remedy by way of an

appeal, the petitioner challenges the decision of the LCC on various

jurisdictional issues which go to the root of the assailed exercise.

Hence, it cannot be said that the writ court‟s jurisdiction is barred.

48. Insofar as the merits of the case are concerned, the LCC proceeded

only on the basis of a particular comment allegedly made by the

petitioner, the context of which was not discussed at all by the LCC.

The expression "faltu meye" can be used in various contexts. The

backdrop of the usage would lend colour and texture to the comment,

thus making it necessary for the adjudicatory authority to explore the

antecedents and backdrop of such usage.

49. I find nothing in the impugned order to indicate that the appropriate

context and backdrop in which the said expression was used by the

petitioner, if at all, was discussed by the LCC.

50. That apart, the LCC failed to take into consideration the entire gamut

of the complaints made in detail by the victim against the present

petitioner.

51. Moreover, an opportunity ought to have been given to the parties to

peruse the documents, if any, relied on by the LCC in passing the

impugned order.

52. Such conditions having not been satisfied, it cannot be said that the

tenets of Natural Justice have been duly complied with by the LCC.

There are ingredients of perversity and lack of opportunity of informed

hearing to the parties, particularly the petitioner, in the decision of the

LCC, which vitiates the impugned decision on the ground of violation

of principles of Natural Justice.

53. The third aspect of the matter is the LCC‟s directions to the

respondent-school regarding formation of the ICC.

54. The observations and directions of the LCC regarding the allegedly

improper constitution of the ICC in the concerned institution were

passed by the LCC patently without jurisdiction. Under the 2013 Act,

penalty can be imposed under Section 26 for non-compliance with the

provisions of the Act. Sub-section 1(a) of Section 26 also

contemplates the failure of the employer to constitute an internal

committee under sub-section (1) of Section 4, to attract punishment

with fine which may extend to 50 thousand rupees.

55. However, nothing in the statute confers jurisdiction on the LCC to

adjudicate upon the propriety and legality of the constitution of the

ICC and/or pass directions on the institution to take steps regarding

constitution of the ICC. At best, the LCC or any concerned person or

employee of the institution may approach the appropriate authorities

for imposition of penalty under Section 26 to enforce the mandate of

the statute.

56. Moreover, the interplay between the qualifications of members of the

ICC and the requirement of their being neutral persons, who are not

employed in the institution, are required to be considered on a case-

to-case basis. The mere fact that the fourth member as contemplated

in Section 4(2)(c) of the 2013 Act is also an employee of the

institution-in-question or the concerned Diocese per se does not

vitiate his credentials to be a member of the ICC if he is otherwise

eligible for the post. The statute does not stipulate in so many words

that the members of the ICC cannot be employees of the institution as

well.

57. As such, the impugned order cannot be sustained on the grounds as

indicated above.

58. Accordingly, WPA No.18829 of 2023 is partially allowed, thereby

setting aside the impugned decision/recommendation of the Local

Complaints Committee, North 24 Parganas. The LCC is directed to

rehear the complaint of the respondent no.15 against the petitioner in

accordance with law. While doing so, the LCC shall give adequate

opportunity of hearing to the parties and shall serve prior copies of all

documents which are relied on by the parties to their respective

opponents before hearing the matter.

59. While considering the issues afresh, the LCC shall advert to all the

components of the written complaint made by the respondent no.15

and give ample opportunity to the petitioner/accused to present his

version of the case with relevant documents, if necessary. Upon such

adjudication afresh, the LCC shall come to a reasoned decision and

communicate the same to all concerned. If the LCC‟s decision refers to

or is based on any expression, the entire context and backdrop of the

usage of such expression shall be considered on the basis of the

materials on record to ascertain whether there was any sexual

overtone to such usage.

60. Upon arriving at its decision, the LCC shall communicate the same in

writing to the complainant as well as the accused within a week

thereafter.

61. The entire exercise shall be concluded by the LCC within two months

from date.

62. It is made clear that depending on the outcome of the said exercise, it

will be open to the LCC to take all necessary steps and measures

consequential to its decision and commensurate with the alleged

offence in accordance with law.

63. Till the complaint is so decided, the petitioner will be entitled to

pursue his profession in the institution-in-question. However, the

petitioner shall not influence or seek to influence the fresh

adjudication by the LCC or the concerned witnesses and/or tamper

with the relevant documents in any manner whatsoever. The

petitioner shall also not have any interaction with the petitioner

and/or be a part of any major decision regarding the alleged

victim/respondent no. 15 during the entire tenure of the adjudication.

64. It will be open to the LCC and/or the respondent no.15 and/or any

other employee of the institution-in-question, if they so feel, to

approach the State Government for imposition of penalty for non-

compliance with the provisions of the Act regarding proper formation

of an ICC, if any. Upon such complaint being lodged, the State

Government shall decide such question in accordance with law upon

giving adequate opportunity of representation and/or hearing to all

concerned and pass appropriate orders in that regard.

65. There will be no order as to costs.

66. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )