Rajasthan High Court - Jodhpur

Vishvas Shankar Raval vs Indian Oil Corporation Ltd. ... on 19 April, 2023

Bench: Dinesh Mehta

[2023/RJJD/010932]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9078/2021

Vishvas Shankar Raval S/o Shri Shankar Raval, Aged About 45 Years, Senior Engineer Assistant (Mech.), Western Region Pipeline, Abu Road, District Sirohi.

----Petitioner Versus

1. Indian Oil Corporation Ltd., Western Region Pipelines, Gauridad, Rajkot (Gujarat) Through Executive Director.

2. General Manager, Western Region Pipelines, Viramgram.

3. Senior Human Resources Manager, Indian Corporation Ltd. Western Region Pipelines, Abu Road District Sirohi.

4. Presiding Officer, Internal Committee (Icc), Western Region Pipelines (Wrpl), Indian Oil Corporation Ltd. Abu Road District Sirohi.

5. Ms. Akansha Likhar, Engineering Assistant (T And I), Western Region Pipelines, Indian Oil Corporation Ltd. Abu Road, District Sirohi.

                                                                 ----Respondents


For Petitioner(s)         :     Mr. R.S. Saluja with
                                Mr. Sheetal Kumbhat
For Respondent(s)         :     Mr. Sandeep Shah, AAG with
                                Ms. Akshiti Singh



                      JUSTICE DINESH MEHTA

                                     Order

19/04/2023

I.A. No. 01/2021

1. The respondent - Indian Oil Corporation Ltd. (hereinafter

referred to as 'Corporation') has preferred the present application

under Article 226(3) of the Constitution of India and prayed that

the interim order passed by this Court on 19.07.2021 be vacated.

[2023/RJJD/010932] (2 of 10) [CW-9078/2021]

2. Apropos to the present application, some facts are necessary

to be narrated, which are:- the petitioner is working on the post of

Senior Engineer Assistant (Mech) with the respondent -

Corporation; a complaint came to be filed by the respondent no.5

to the Officer of the respondent - Corporation on 13/14.04.2021,

reporting that someone came at around 1:00 am on 13.04.2021

and knocked at the door of her residence and when she saw from

the door lens, she found that the petitioner was standing in front

of the door.

3. The said complaint was followed by subsequent email dated

28.04.2021 and 01.05.2021, more or less narrating the same

incident with some additions thereto.

4. Be that as it may. Acting on the complaint(s) so filed, the

respondent-Corporation issued a show cause notice dated

30.04.2021 to the petitioner asking him why disciplinary action

should not be initiated against him as the incident reported by the

complainant - respondent no.5 constituted a misconduct.

5. The petitioner filed his reply to the said notice on

06.05.2021.

6. In the meantime, the Internal Complaints Committee

constituted by the respondent - Corporation took cognizance of

the incident and complaint was registered on 05.05.2021

whereafter a report dated 08.06.2021 was prepared, ofcourse

after providing opportunity of hearing to the petitioner. Said report

dated 08.06.2021 was forwarded to the petitioner alongwith a

letter dated 18.06.2021.

[2023/RJJD/010932] (3 of 10) [CW-9078/2021]

7. On 24.06.2021 respondent - Corporation placed the

petitioner under suspension and on the day next, a charge-sheet

came to be issued to the petitioner.

8. Impugning the order of suspension, charge-sheet dated

25.06.2021 and order dated 13.07.2021 (appointing the inquiry

officer), the present writ petition has been preferred inter-alia on

the ground that neither did the incident reported by the

complainant constitute any misconduct under the Sexual

Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013 (hereinafter referred to as the 'Act of 2013')

nor could the place where the incident occurred be treated to be a

'work place'. Other arguments were also advanced and finding the

case worth consideration, per-viam order dated 19.07.2021, this

Court has stayed the suspension order so also the proceedings in

furtherance of the memorandum of charges dated 25.06.2021 and

order dated 13.07.2021.

9. An amendment application dated 23.03.2022 came to be

filed by the petitioner (I.A. No. 02/2022) seeking leave to

challenge the report dated 08.06.2021 on the ground that the

same is violative of second proviso to Section 11 of the Act of

2013, inasmuch as, the petitioner was not afforded opportunity to

file his objection/representation qua the report dated 08.06.2021.

10. Mr. Sandeep Shah, learned Senior Counsel appearing for the

respondent - Corporation opposed the amendment application

tooth and nail by contending that the petitioner having filed the

writ petition and being aware of the report dated 08.06.2021

cannot be permitted to lay challenge to the report at a belated

[2023/RJJD/010932] (4 of 10) [CW-9078/2021]

stage, particularly when respondents are pursuing their

application for vacation of interim order.

11. So far as amendment application is concerned, this Court is

of the view that the petitioner has raised purely a legal argument,

factual foundation whereof is already on record. Whether the

inquiry report or the proceedings initiated by the respondents are

illegal or without jurisdiction in the teeth of second proviso to

Section 11 of the Act of 2013 is concerned, the same is

jurisdictional question and a neat question of law. Such question

can be raised at any stage, even without bringing a formal

amendment in the writ petition.

12. The amendment application is pending for more than a year

and detailed reply to the application has been filed. According to

this Court, the interest of justice demands that the petitioner be

permitted to raise such plea as the same goes to the root of the

matter and hits at the very competence of the recommendations

due to non observance of statutory mandate (if any).

13. Hence, without getting into the formality of allowing the

amendment application and permitting the incorporation of such

ground in the memo of writ petition and calling for amended reply

and wasting judicial time on such ceremonies, the petitioner is

permitted to advance such arguments with a corresponding liberty

to the respondents to respond to such arguments. The application

(I.A. No. 02/2022) stands disposed of accordingly.

14. Moving on to the application for vacating ex-parte interim

order, the first contention of Mr. Shah, learned Senior Counsel has

been, that the entire petition is misconceived and the inquiry

report and respondents' action being violative of second proviso to

[2023/RJJD/010932] (5 of 10) [CW-9078/2021]

Section 11 of the Act of 2013, need not be gone into because,

neither the petitioner's suspension nor the charge-sheet are in

pursuance of the proceedings under the Act of 2013.

15. He clarified that maybe the suspension order dated

24.06.2021 which makes a reference of the report dated

08.06.2021 at first flush appears to be a consequence of

proceedings under the Act of 2013, but a closer scrutiny of the

record unravels that the disciplinary proceeding which the

respondent - Corporation has initiated vide memorandum of

charge-sheet dated 25.06.2021 is completely independent of the

report dated 08.06.2021. He contended that the respondent -

Corporation is proceeding against the petitioner in furtherance of a

complaint dated 28.04.2021 submitted by the respondent no.5.

While highlighting that no reliance has been placed on the inquiry

report dated 08.06.2021 furnished by Internal Complaints

Committee under Section 11 of the Act of 2013, he argued that

the interim order deserves to be vacated.

16. Mr. Saluja, learned counsel for the petitioner argued that the

respondents are proceeding against the petitioner solely in

furtherance of the report dated 08.06.2021 furnished by the

Internal Complaints Committee, which is evident from the

suspension order so also the memorandum of charges, which

make clear reference of the report dated 08.06.2021. Learned

counsel submitted that a simple look at second proviso to Section

11 of the Act of 2013 makes it abundantly clear that Internal

Complaints Committee is required to furnish a copy of the report

to the parties (petitioner and complainant) and then, give them an

[2023/RJJD/010932] (6 of 10) [CW-9078/2021]

opportunity to make representation before making any

recommendation under Section 13 of the Act of 2013.

17. Learned counsel argued that since opportunity of making

representation has not been given to the petitioner, the

recommendation made by the Internal Complaints Committee in

its report dated 08.06.2021 cannot be acted upon. In support of

his contention aforesaid, learned counsel relied upon Division

Bench judgment of this Court in the case of Vijay Dhaker vs.

Nuclear Power Corporation of India Ltd. (NPCIL) & Ors

(D.B. Special Appeal (Writ) No. 705/2022).

18. It was also argued by Mr. Saluja, learned counsel for the

petitioner that according to the provisions contained in Section 13

of the Act of 2013, the recommendations of the Internal

Complaints Committee can be acted upon only after following the

procedure provided under the relevant statute or standing orders.

He argued that the respondents are proceeding against the

petitioner, in a bid to comply with the recommendations. He

apprehend that the respondents are going to act upon the

recommendations made in the inquiry report dated 08.06.2021

and are likely to pass an order under the provisions of the Act of

2013.

19. Heard the learned counsel for the petitioner and respondent

- Corporation on the application filed under Article 226(3) of the

Constitution of India.

20. Despite service of notice, nobody appears on behalf of the

respondent no.5.

21. In view of the stand taken by the respondent - Corporation

in Para - 9 of the reply, and what has been submitted by Mr.

[2023/RJJD/010932] (7 of 10) [CW-9078/2021]

Sandeep Shah, learned Senior Counsel appearing for the

respondent - Corporation, it is apparent that the impugned

proceedings initiated by the charge-sheet dated 25.06.2021 are

unconnected with the recommendation made by Internal

Complaints Committee on 08.06.2021.

22. Apart from Mr. Shah's categorical stand, a perusal of the

charge-sheet, the list of document (Annexure-I) and list of

witnesses (Annexure-II) with the charge-sheet shows that the

inquiry report dated 08.06.2021, furnished by the Internal

Complaints Committee is not even a document relied upon.

Though there is a reference of said report dated 08.06.2021 in the

order of suspension, but the same has been taken or narrated as

a fact simplicitor in order to show the necessity of placing the

petitioner under suspension and with a view to show that a prima-

facie case of misconduct or disorderly behaviour is made out

against the petitioner. But such passing reference of the report

dated 08.06.2021 in the manner made, cannot convert disciplinary

proceedings under the relevant standing orders to be one under

the Act of 2013.

23. Furthermore, a simple look at the recommendations made in

the report dated 08.06.2021 shows that as many as four

recommendations were made by the Committee, out of which

three have admittedly not been acted upon so far.

24. First recommendation regarding taking proceedings for

major penalty seems to have been given effect to as the same is

reflected in the recommendation dated 08.06.2021, but the

charge-sheet dated 25.06.2021 does not hinge upon the report or

the recommendation dated 08.06.2021. The articles of

[2023/RJJD/010932] (8 of 10) [CW-9078/2021]

allegations / charge-sheet and the documents relied upon in the

charge-sheet are starkly different.

25. It is noteworthy that even before the Internal Complaints

Committee came into action, the petitioner was served with a

notice dated 30.04.2021 asking him as to why disciplinary

proceedings be not initiated against him. Hence, this Court has no

hesitation in accepting the stand of the Corporation that the

proceedings under challenge are other than the proceeding under

the Act of 2013.

26. In view of what has been noticed herein above and in the

face of the stand of the respondent - Corporation that the

impugned proceedings are not in furtherance of the

recommendations, all the arguments advanced by learned counsel

for the petitioner relating to non-compliance of second proviso to

Section 11 of the Act of 2013; the proceedings which have been

initiated, so also the ground that the alleged incident neither

amounted to sexual offence nor did the place of incident come

within the ambit of 'work place' need not detain this Court at this

stage.

27. Since the impugned disciplinary proceedings has no nexus

with the inquiry conducted under the Act of 2013 and the charges

levelled against the petitioner are likely to fall within the ambit of

disorderly behaviour, if not sexual offence, this Court finds no

reason to stall the proceeding oppugned in the present petition.

28. Maybe, the incident or petitioner's alleged conduct does not

fall foul to the provisions of Act of 2013 but nevertheless the same

cannot be countenanced and hence, suspension and the

[2023/RJJD/010932] (9 of 10) [CW-9078/2021]

disciplinary proceedings per se cannot be said to be arbitrary,

vindictive, without jurisdiction or illegal.

29. As a necessary corollary of what has been discussed afore,

the interim order dated 19.07.2021 deserves to be and is hereby

vacated.

30. Application (I.A. No.01/2021) is allowed; petitioner's

suspension is revived. The respondent - Corporation will be free to

proceed against the petitioner in furtherance of suspension order

dated 24.06.2021 and memorandum of charges dated

25.06.2021.

31. While keeping the writ petition pending, it is enjoined upon

the respondent - Corporation and Internal Complaints Committee

to hear petitioner's representation pursuant to report dated

08.06.2021 in accordance with law in order to observe the

mandate of second proviso to Section 11 of the Act of 2013, which

has been interpreted by the Division Bench in the case of Vijay

Dhaker (supra) in following terms:

"A conjoint reading of Section 11 and 13 of the Act of 2013 shows that the ICC shall submit final report to the employer only after examining the representations, if any, made against findings recorded by it. Section 11 of the Act of 2013 ensures that an employee does not suffer undue hardship on account of false/frivolous complaints made against him and at the same time, it also ensures that unwelcoming acts/behavior do not go unpunished because of faulty analysis or gathering of information during investigation/inquiry conducted by the ICC.

32. It is hereby ordered that in case the respondents wish to

proceed against the petitioner under the Act of 2013 and act upon

[2023/RJJD/010932] (10 of 10) [CW-9078/2021]

the recommendations made by the Internal Complaints Committee

in its report dated 08.06.2021, they shall do so only after decision

of petitioner's representation by the Internal Complaints

Committee.

33. The petitioner may file his objection / representation qua the

report dated 08.06.2021 on or before 28.04.2023. In case, the

representation is so filed, the Internal Complaints Committee shall

consider the same in accordance with law and then, take a fresh

decision as to whether any recommendation(s) are required to be