Gujarat High Court
Dipakkumar Dineshbhai Luhar vs State Of Gujarat on 12 April, 2023
Bench: Mauna M. Bhatt
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2164 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DIPAKKUMAR DINESHBHAI LUHAR
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR CHINTAN N DESAI(9940) for the Petitioner(s) No. 1
MR ADITYA PATHAK ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 12/04/2023
ORAL JUDGMENT
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
1. This petition is filed challenging the departmental
proceedings initiated against the petitioner pursuant to the
charge-sheet dated 19.4.2022, which culminated into
Departmental Case No.198 of 2022.
2. Rule returnable forthwith. Mr. Aditya Pathak, learned
Asst. Government Pleader waives service of rule on behalf of
respondent-State.
3. The facts in brief are that, the petitioner herein pursuant
to the advertisement issued by the State for the post of Class-II
(Accounts Officer) applied and after selection was appointed in
the year 2011. Thereafter, he was promoted and transferred at
various places and lastly posted at Gandhinagar on 17.6.2022
as Accounts Officer in the office of Commissioner Rural
Development, Gandhinagar and at present working there. It is
case of the petitioner that pursuant to an anonymous
complaint, a preliminary inquiry came to be initiated against
him on 13.6.2019 and upon allegations being held proved, a
show cause notice dated 22.1.2021, was issued by respondent
No.2 calling for response of the petitioner. Petitioner
responded to the said show cause notice by reply dated
28.1.2021. Thereafter, charge-sheet was issued on 19.4.2022
by respondent No.1, aggrieved by which, present petition is
filed.
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
4. Mr. Chintan Desai, learned advocate for the petitioner
submitted that the charge-sheet dated 19.4.2022, issued to the
petitioner is bad in law because of the following reasons:
(i) That in response to the charge-sheet dated
19.4.2022, petitioner addressed a communication
dated 4.5.2022, requesting to provide copy of the
anonymous complaint as also the additional
documents, basis which departmental proceedings
were sought to be initiated against him. The same
has been denied vide communication dated 31.5.2022.
(ii) That based on anonymous complaint,
preliminary inquiry was conducted wherein, the
statements of lady employees were recorded. As per
the government resolution dated 16.10.2015, no
action can be initiated relying on anonymous
complaint, and there for the initiation itself is
contrary to G.R and therefore consequential
proceedings are bad.
(iii) That the statement recorded of lady employees
in preliminary inquiry cannot be stated to be fulfilling
any of the ingredients of Rule 3-B of the Gujarat Civil
Services (Conduct) Rules, 1971 ("the Rule 1971" for
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
short). As per Rule 9 of the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 ("the 2013 Act" for short), any
aggrieved woman is to make a complaint before the
Committee constituted under the said Act. In the
present case, there is no such written complaint to
such committee and on this ground the proceedings
initiated deserves to be quashed and set aside.
(iii) That the preliminary inquiry came to be
initiated in the year 2019 and the charge-sheet is
issued in the year 2022 and therefore, on the ground
of delay the proceedings initiated deserve to be
quashed and set aside.
(iv) That even otherwise, the ingredients of Rule
3-B of the Rules are not fulfilled and, therefore,
initiation is bad in law. Further, work of the
petitioner has been appreciated and acknowledged by
the department ignoring which the present
proceedings are initiated.
(v) That the discipline maintained by the
petitioner in the office has been adversely taken. The
complaint being offshoot of that, deserves to be
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
ignored.
(vi) That under Sections 9, 10 and 11 of the Act 2013,
special procedure has been laid down to meet with the
aim and object of the Sexual Harassment Act 2013. In
this case the provisions of 2013 Act are not followed
and, therefore, the proceedings initiated under provisions
of GCS Rules are bad and deserve to be quashed and set-
aside. Further the charge sheet does not refer to the
misconduct as specified under rule 3(1) read with 3-B of
the Rules, 1971 and therefore, the same is bad in law.
4.1. He relied upon the decision of this Court in the case of
Girishkumar Rameshchandra Soni v/s State of Gujarat,
reported in 2018 (1) GLR 673 and submitted that as observed
by this Court, if any complaint is to be made with regard to
sexual harassment at work place, it is to be made in writing
before the committee constituted for the same. In the present
case there is no such committee and in absence of any written
complaint, initiation of disciplinary proceedings pursuant to the
oral representation would run contrary to the circular issued.
He relied upon following paragraphs of the above judgment.
"8. Having heard the learned counsels appearing
for the parties, we have carefully perused the
entire material on record, as the disciplinary
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
proceedings are initiated on the allegation of
sexual harassment, against a judicial officer. In
this case, it is not in dispute that the petitioner
was initially appointed as Civil Judge (Junior
Division) and J.M.F.C. in the year 2005 and
thereafter, he was promoted to the cadre of
Senior Civil Judge on 05.01.2012 and worked as
such at Rajkot upto 21.06.2012. The alleged
incident is of 22.03.2012, but undisputedly, there
was no complaint from any lady member of the
Bar. However, only when the then Hon'ble Chief
Justice visited Rajkot District on 28.5.2012, it
appears that there was an oral representation
from a lady advocate about the alleged sexual
harassment by the petitioner. Thereafter, remarks
were called for from the Principal District Judge,
Rajkot, by confidential letter dated 05.09.2012
addressed by this Court. Only after reminder was
sent by this Court on 21.11.2013, remarks were
sent by the Principal District Judge, Rajkot, on
30.11.2013 by recording the statements of three
lady advocates. Thereafter, matter was placed
before the Standing Committee and decision was
taken in the Standing Committee meeting held on
10.2.2014 to initiate regular inquiry. Immediately
thereafter, no steps have been taken, but by
further recording the statements on 22.07.2016,
charge sheet was issued in departmental inquiry
proceedings only on 21.01.2017. Prior to the
enactment of Act 14 of 2013 i.e. the Sexual
Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013, Regulations
namely, the Gender Sensitisation & Sexual
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Regulations, 2013 were
framed in view of the judgments of the Hon'ble
Supreme Court in the case of Vishaka v. State of
Rajasthan reported in (1997)6 Supreme Court
Cases page 241and in the case of Binu Tamta and
Another v. High Court of Delhi and Others
reported in (2014)13 Supreme Court Cases 257.
The said Regulations provide mechanism for
lodging of complaint and inquiry into the
complaint. As per the Regulations, the complaint
can be made by any aggrieved woman in writing,
of sexual harassment to the Competent Authority
in accordance with law in the form which was
notified. Regulations also provide that in cases
where an aggrieved woman is unable to make a
complaint on account of her physical or mental
incapacity or death or for any other reason, her
legal heir or such other person directly concerned
with her interest can also make a complaint. So,
it is clear from the aforesaid Regulations that if
any complaint is to be lodged of sexual
harassment, it is to be made in writing. Even
under the provisions of the Act 14 of 2013,
procedure for lodging the complaint is provided
under section 9 in Chapter IV. Section 9 of the
Act reads as under:
"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,
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
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
within the said period.
(2) Where the aggrieved woman is unable to
make a complaint on account of her physical or
mental incapacity or death or otherwise, her legal
heir or such other person as may be prescribed
may make a complaint under this section."
9. From a perusal of the procedure contemplated
under Regulations, as well as under section 9 of
the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013,
it is clear that if any complaint is to be made
with regard to sexual harassment at workplace, it
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
is to be made in writing. In the case on hand, it
is not in dispute that there was no complaint in
writing by any member of the Bar against the
petitioner. Though alleged incident, as per the
statements recorded of the witnesses, is on
22.03.2012, no complaint was made in writing.
The only basis for initiation of proceedings,
appears to be that of oral representation made to
the then Hon'ble Chief Justice during his visit to
the Rajkot District on 28.05.2012. Thereafter,
remarks were called for by addressing confidential
letter to the Principal District Judge of Rajkot
District. However, the Principal District Judge has
sent the report belatedly to this Court on
30.11.2013. Even thereafter, no departmental
inquiry was initiated against the petitioner and
departmental inquiry came to be initiated by
issuing a charge memo in the departmental
proceedings only on 21.01.2017. Though the said
delay is sought to be explained by stating that
during the relevant time, there were number of
complaints in the Vigilance Department, but after
perusing the explanation offered in the affidavit-
in-reply filed on behalf of the respondent No.3,
we are not convinced with the explanation for
such abnormal and inordinate delay, in initiating
proceedings. It is fairly well settled that in
departmental inquiry, proceedings are to be
initiated within a reasonable time and initiation of
inquiry belatedly after several years, itself is a
ground to quash the inquiry proceedings. Having
regard to the alleged incident of 2012,
departmental inquiry is initiated by issuing charge
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
sheet only on 21.01.2017. Same is the ground for
quashing the proceedings, in absence of proper
and reasonable explanation to explain such delay.
Apart from the fact that there is no complaint
within the meaning of the Regulations and the
Act, so as to proceed with the inquiry on the
allegation of sexual harassment, there is also
abnormal and inordinate delay in initiation of
proceedings. It is to be noticed that except the
statements of three advocates recorded on
13.07.2012 and thereafter further statements of
the very same advocates on 22.07.2016, no other
material is placed to substantiate the charge
levelled against the petitioner."
5. On the other hand, learned Assistant Government Pleader
Mr. Aditya Pathak for the respondent- State submitted that the
aim and object of The Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 is
to protect the interest of women. With the same intent and
object Rule 3-B, has been inserted. As the conduct of the
petitioner was falling within the meaning of misconduct as
specified under Rule 3(1) read with Rule 3-B of the Rules
1971, a decision was taken to initiate proceedings envisaged
under the Rules 1971. Further as per rule 9(2) of the rules
1971, in case of complaint of sexual harassment the
disciplinary authority is free to cause an inquiry in to the
matter. In this case, in the preliminary inquiry held, the
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
allegations prima facie was held to be true and therefore,
charge-sheet dated 19.04.2022 was issued to the petitioner.
Moreover, the Act, 2013 does not prohibit initiation of
departmental proceedings. Statement of female employees were
recorded, wherein, the ingredient of misconduct under Rule 3
(1) and Rule 3-B of the Gujarat Civil Service (Conduct) Rules,
1971 are fulfilled.
5.1. He further submitted that upon receipt of the letter dated
03.06.2019, by respondent No.2, regarding misbehavior of the
petitioner with female employees, to keep the confidentiality of
the complainant, respondent No.2 appointed Ms.Nisha U.
Raval, District Assistant Examiner (Class-I) to undertake
preliminary inquiry. Preliminary Inquiry Officer prima facie
found the allegations made against the present petitioner true.
Thereafter, report dated 27.06.2019 of Preliminary Inquiry
Officer was sent to respondent No.1 for taking appropriate
action. Respondent No.1 after going through report dated
27.06.2019 after due perusal of the report, deemed it fit to
issue Show Cause Notice and therefore, respondent No.1
directed respondent No.2 to issue Show Cause Notice. The
respondent No.2 vide communication dated 22.01.2021 issued
Show Cause Notice to the petitioner and the same was replied
by the petitioner on 28.01.2021. Reply of the petitioner dated
28.01.2021 to the Show Cause Notice was forwarded to
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
respondent No.1 for taking necessary action. Respondent No.1
did not find the reply satisfactory and decided to initiate
departmental inquiry and deemed it fit to issue charge-sheet.
Thus, charge-sheet dated 19.04.2022 was issued to the
petitioner for misbehavior / misconduct as provided under Rule
3(1)(iii) and Rule 3-B of Gujarat Civil Service (Conduct)
Rules,1971. Thus, at the cost of repetition, he submitted that
principal of natural justice is fully complied with and there is
no lacuna in the procedure adopted and judicial interference is
not warranted. He therefore submitted that departmental
inquiry is initiated against the petitioner in accordance with
Rule 9 and 10 of the Gujarat Civil Services (Discipline and
Appeal) Rules, 1971. He further submitted that this petition is
filed at a premature stage and defence available to the
petitioner can be raised before inquiry authority and therefore,
this petition deserves to be dismissed.
5.2. In relation to Government Resolution dated 16.10.2015,
on anonymous complaints, he submitted that on perusal of
Clause (2) and (8) of the said Government Resolution it is clear
that if any doubt is created with regard to any complaint/
application and if the complainant/ applicant is able to
produce evidence on record in support of the said complaint/
application, the same is required to be inquired into. In this
case proceeding are initiated under Rule 3-B of the Gujarat
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
Civil Services (Conduct) Rule,1971 and therefore, submission
that no proceeding can be initiated in relation to allegation of
sexual harassment is not correct. In relation to non-supply of
document, he submitted that along with charge-sheet dated
19.04.2022, statement of all female employees has been
provided to the petitioner. He therefore submitted that
provisions of the Gujarat Civil Service (Conduct) Rules have
been duly complied with and departmental proceedings are
rightly initiated against the petitioner. The present petition is
devoid merits and the same deserves to be rejected.
6. Learned AGP for the State relied upon the decision in the
case of Union of India & Anr. vs. Kunisetty Satyanarayana
reported in (2006) 12 SCC 28. He submitted that as settled by
series of decisions , no right would lie against a charge-sheet
or show cause notice in relation to departmental proceedings.
He relied upon the following paragraphs.
"13. It is well settled by a series of
decisions of this Court that ordinarily no writ
lies against a charge sheet or show-cause
notice vide Executive Engineer, Bihar State
Housing Board vs. Ramdesh Kumar Singh and
others JT 1995 (8) SC 331, Special Director
and another vs. Mohd. Ghulam Ghouse and
another AIR 2004 SC 1467, Ulagappa and
others vs. Divisional Commissioner, Mysore and
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
others 2001(10) SCC 639, State of U.P. vs.
Brahm Datt Sharma and another AIR 1987 SC
943 etc.
14. The reason why ordinarily a writ
petition should not be entertained against a
mere show-cause notice or charge-sheet is that
at that stage the writ petition may be held to
be premature. A mere charge-sheet or show-
cause notice does not give rise to any cause of
action, because it does not amount to an
adverse order which affects the rights of any
party unless the same has been issued by a
person having no jurisdiction to do so. It is
quite possible that after considering the reply
to the show-cause notice or after holding an
enquiry the authority concerned may drop the
proceedings and/or hold that the charges are
not established. It is well settled that a writ
lies when some right of any party is infringed.
A mere show-cause notice or charge-sheet does
not infringe the right of anyone. It is only
when a final order imposing some punishment
or otherwise adversely affecting a party is
passed, that the said party can be said to have
any grievance.
15. Writ jurisdiction is discretionary
jurisdiction and hence such discretion under
Article 226 should not ordinarily be exercised
by quashing a show-cause notice or charge
sheet."
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
7. Heard learned advocates appearing for the respective
parties. The issue for consideration is "Whether initiation of
departmental proceedings under Rule 3(1) read with Rule 3-B
of the Gujarat Civil Services (Conduct) Rules, 1971 is
appropriate or in such type of cases proceedings under Sexual
Harassment Act 2013, can only be initiated?
8. Following chronology would be necessary:
(i) On the complaint/ representation dated 3.6.2019, by
the female employees of Pension Payment Office, Vadodara,
a decision was taken by respondent no 2 to inquire in to the
matter. Therefore, respondent no 2 appointed Ms.Nisha U.
Raval, District Assistant Examiner (Class-I) to cause
preliminary inquiry.
(ii) The inquiry authority after causing preliminary
inquiry gave report dated 27.06.2019. In the preliminary
inquiry statements of female employees were recorded. In
preliminary inquiry report the allegations made against
petitioner were found to be true.
(iii) Thereafter, a decision was taken to issue show
cause notice to the petitioner and, therefore, respondent
No.1 directed respondent No.2 to issue show cause notice.
C/SCA/2164/2023 JUDGMENT DATED: 12/04/2023
To the show cause notice, a reply of the petitioner was
called for. After receiving reply of the petitioner, the same
was forwarded to respondent No.1 for taking necessary
action. The respondent No.1 after due application of mind
on the preliminary inquiry report as well as reply dated
28.1.2021 of the petitioner decided to initiate departmental
inquiry and issued charge-sheet.
(iv) Along with the charge-sheet, statements recorded of
the female employees during preliminary inquiry were
provided to the petitioner.
Thus, the due procedure contemplated under the
provisions of the Rules has been followed.
9. For the contention of the petitioner that no
action/departmental proceedings can be initiated taking
cognizance of an anonymous complaint, it is noticed that in
the Government Resolution dated 16.10.2015, a reference has
been made to the anonymous complaint in relation to
corruption, honesty, misuse of powers and like other
misconducts. It is further observed that generally due
cognizance is not to be taken on an anonymous complaint and
no action is to be taken based on anonymous complaint,
however there is no absolute bar. In the present case, the
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facts on record suggests that the complaint/representation was
made not by any anonymous person/outsider but by the
employees of Pension Payment Office, Vadodara, where the
petitioner is working and during preliminary inquiry,
statement of all the female employees were recorded. The
statement of female employees was provided to the petitioner
along with the charge-sheet. The decision relied upon by the
learned advocate of the petitioner in the case of Girishkumar
Rameshchandra Soni (supra) is not applicable in facts of the
present case. Therefore, the contention that departmental
proceedings cannot be initiated based on anonymous
complaint, in my opinion is not correct in the facts of this
case as referred herein above.
10. In relation to the contention that in case of complaint of
sexual harassment, action under Act 2013, can only be
initiated, reproduction of Rule 3-B of the Rules,1971 would be
appropriate.
"3-B Prohibition of sexual harassment of
working women
(1) No Government servant shall indulge in
any act of sexual harassment of any woman at
her work place.
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(2) Every Government servant who is in
charge of a work place shall take appropriate
steps to prevent sexual harassment to any
woman at such work place.
Explanation:-
For the purpose of this rule "Sexual
harassment" includes such unwelcome sexually
determined behaviour, whether directly or
otherwise such as-
(a) Physical contact and advances;
(b) demand or request for sexual favours;
(c) sexually coloured remarks;
(d) showing any pornography; or
(e) any other unwelcome physical, verbal
or non-verbal conduct of a sexual nature.
**[Inserted vide Govt. Notification No.GS/99/9/
CDR/1098/171/Inquiry Cell, dated 24.3.1999]
$ [Renumbered vide Govt. Notification
No.GS/2005(8)CDR/112005/U.O.248/Inq.Cell,
dated 1.6.2005]"
11. Thus Rule 3-B of the Rule 1971, refers to misconduct for
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which disciplinary proceedings as contemplated under the
provisions of the Rules can be initiated. Rule 3B of the Rules
is inserted with a view to avoid/prohibit sexual harassment to
working woman at workplace and, therefore, proceedings
against the petitioner are rightly initiated under the Rules,
after following due procedure as envisaged under Rules 9, 10
and 11 of the Gujarat Civil Service (Discipline and Appeal)
Rules, 1971. The Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 is one of the
mechanisms to safeguard the work place for women and that
would not prohibit to initiate proceedings under Rule 3 (1) (iii)
read with 3-B of the Rules. Accepting the contention of the
petitioner that in view of provisions of Act of 2013, action
under Rules of 1971, cannot be taken, in my opinion would
make Rule 3-B, redundant. Moreover, in the present case,
only charge-sheet has been initiated and scope of judicial
review in relation to challenge to the issuance of charge-sheet
being very minimal, I do not find any merit in the petition
and therefore, the same is dismissed.
12. Rule is discharged. No costs.
(MAUNA M. BHATT,J)
NAIR SMITA V.
