Dr.Salma Khatoon vs Secretary, Govt. Of India, ...
2010 Latest Caselaw 2636 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                WP(C) No.9144/2009

%                            Date of Decision: 18.05.2010

Dr.Salma Khatoon                                                .... Petitioner
                          Through Mr.Arun Bhardwaj, Advocate.

                                     Versus

Secretary, Govt. of India, Department of Ayush          .... Respondents
& others
                   Through     Ms.Meera Bhatia, Advocate for
                               respondent No.1/UOI.
                               Mr.Suman Chatterjee, Under Secretary
                               Department of Ayush, in person.
                               Mr.C.Hari Shankar, Advocate for
                               respondent Nos.2 & 3.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be               YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                    NO
3.    Whether the judgment should be reported                   NO
      in the Digest?


ANIL KUMAR, J.

*

The petitioner has challenged the order dated 29th September,

2008 passed by the Central Administrative Tribunal, Principal Bench,

New Delhi in O.A.No.2059 of 2008, titled as 'Dr.Salma Khatoon v.

Secretary of Government of India, Department of Ayush & others',

whereby the original application of the petitioner seeking various reliefs,

inter-alia, that the respondents be directed to constitute a proper sexual

harassment committee to enquire into sexual harassment complaints

made by the petitioner in accordance with the guidelines made by

Hon'ble Supreme Court in 'Vishakha v. State of Rajasthan & others'

1997 SCC (Crl.) 932, and to direct the said committee to enquire into

the conduct of respondent No.2 was dismissed.

The petitioner had filed an original application before the Central

Administrative Tribunal, Principal Bench, New Delhi contending, inter-

alia that she was appointed as Research Assistant (Unani Medicine) at

Bhadrok (Orissa) in CCRUM, Department of Ayush, Ministry of Health,

and was transferred from Bhadrok to Patna in 1989. In 1996, she was

promoted as Research Officer.

The allegation of the petitioner is that on 13th June, 2000, one

Sh.KHm Mohmad, the then Deputy Director, in charge caused sexual

harassment to co-employee, and an enquiry was initiated and he was

placed under suspension. The petitioner's allegation is that on 5th

September, 2007 she was transferred from RRIM, Delhi under an officer

who was junior in seniority to her. She was threatened on telephone of

her husband either to settle all the disputes and mend her ways or face

action.

In connection with the threats given to her, the petitioner

contended that she visited the Director/accused, Sh.M.K.Siddiqui in his

Chamber and during conversation, the Director/respondent No.3

molested and harassed her and stated that if she wants posting of her

choice, she had to either pay money or please him. Consequently,

thereto made a written complaint of sexual harassment to the

Commissioner of Police and also to Secretary, Government of India,

Ministry of Health.

Pursuant to the complaint made by the petitioner, she was

informed that a Committee of Sexual Harassment has been formed and

she was advised to appear on 30th April, 2008. The petitioner raised

objections against the constitution of the Committee and it's

functioning as according to her, even her statement was not recorded

properly. The objections raised by the petitioner were not accepted and

decided entailing filing of petition under Section 19 of the Central

Administrative Tribunal Act, 1985 being O.A.No.2059 of 2008, which

was dismissed by the order dated 29th September, 2008 holding that

the matter regarding constitution of the Sexual Harassment Committee

and the objections raised by the petitioner will not fall under any of the

Clause of Section 14 of the said Act.

It was further held that the ordering constitution of fresh Sexual

Harassment Committee would not be a matter in relation to

recruitment, and matters concerning recruitment, to any service or post

in connection with the affairs of such local or other authority or

corporation. It was also held that it will also not be a service matters

concerning a person appointed to any service or post other than a

person referred to in Clause (b) of Sub Section (1) of this Section. The

Tribunal further held that apart from the cause of action will accrue to

the petitioner only when some action is actually initiated against her on

the basis of the report.

The petitioner filed the present petition challenging the order of

the Tribunal dated 29th September, 2008 contending, inter-alia that the

Tribunal will have jurisdiction under Section 14 to consider of this

matter and grant her relief prayed by her in her original application

before the Tribunal.

Besides the relief for re-constitution of the Sexual Harassment

Committee, the petitioner had also sought a direction to transfer

respondent No.3 out of the present Department or to place under

suspension; quash and set aside the report dated 6th May, 2008 of the

Committee for Sexual Harassment at work place CCRUM, Department

of Ayush, Ministry of Health and to restrain respondent No.3 to

threaten the witnesses directly or indirectly, or through agents,

nominees, friends and restrain him from tampering with the evidence

were also prayed before the Tribunal.

Learned counsel for the petitioner on instructions does not press

his reliefs in respect of transfer of respondent No.3 out of the present

department or to quash & set aside the report dated 6th May, 2008 of

the Committee as this report has been withdrawn and also does not

press to restrain against respondent No.3.

Learned counsel for the petitioner only seeks relief in respect of

constitution of the Sexual Harassment Committee. After the writ

petition was filed by the petitioner, the Second Sexual Harassment

Committee was re-constituted by the respondents, however, the

Members of the Committee are the same who were in Sexual

Harassment Committee which was constituted pursuant to order dated

1/2.07.2008.

The main objection of the learned counsel for the petitioner is

about the Chairperson of the Committee being Ms.Meenakshi Negi, the

Director who is not a Joint Secretary on the ground that she is junior to

the accused who is the Director General.

Without going into the contentions of the petitioner that the

Tribunal will have jurisdiction under Section 14 of the Act to direct the

respondents regarding constitution of fresh Sexual Harassment

Committee and in respect of the matters relating to the constitution of

Sexual Harassment Committee and any directions given in this regard,

since the Committee has been reconstituted and as no person senior to

the accused is available in the department except the Secretary of the

Department of Ayush, the petition can be disposed of because even the

Tribunal had taken into consideration the fact that the objection raised

by the petitioner with regard to constitution of proper Sexual

Harassment Committee had indeed been considered and new committee

had been constituted, with the direction to have secretary in the sexual

harassment committee as its Chairperson.

Even if the Tribunal does not have jurisdiction, as has been

contended by the counsel for respondent Nos.2 & 3, this Court is not

powerless to issue direction for the compliance of the order passed by

the Supreme Court in the case of Vishakha (Supra). If the Tribunal does

not have jurisdiction, it does not leave petitioner without any remedy

and she would be entitled to invoke the extraordinary jurisdiction of

this Court under Article 226 of the Constitution of India. In the

circumstances, it will be appropriate to direct the respondents to have

Secretary Department of Ayush as Chairperson of sexual harassment

committee in place of Ms.Meenakshi Negi as she is junior to the

accused against whom allegation of sexual harassment has been made.

The learned counsel for the respondents have also not been able

to show any cogent grounds against making the secretary of the

Department of Ayush as the Chairperson of the sexual harassment

committee in respect of the complaint of the petitioner.

In the circumstances, this Court directs the respondents to

appoint Secretary, Government of India, Department of Ayush as the

Chairperson of reconstituted sexual harassment committee in the

matter of complaint made by the petitioner. The said committee will

consider the complaint of the petitioner in accordance with the

guidelines and law laid down in the case of Vishakha (Supra).

With these directions the petition is disposed of and the parties

are left to bear their own costs. It is however, clarified that this will not

be precedent and this Court has not decided whether the Tribunal will

have jurisdiction under Section 14 of the Central Administrative

Tribunal Act, 1985 in the matter of constitution of the Sexual

Harassment Committee.

With these directions, the present writ petition is disposed of.

ANIL KUMAR, J.

MAY 18, 2010                                      MOOL CHAND GARG, J.
'VK'