Sri Vinay Kumar Rai vs The Union Of India
2021 Latest Caselaw 934 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA
                           WP(C) No.596/2019
Sri Vinay Kumar Rai, Son of Shri Brahmeshwar Nath Rai, holding the post
of DIG, CRPF, presently posted at North Eastern Sector Headquarters,
Shillong, Meghalaya - 793001.
                                                       ----Petitioner(s)
                                     Versus
1. The Union of India, represented by the Secretary, Ministry of Home
Affairs, having his office at South Block, New Delhi - 110001.
2. The Secretary, Ministry of Home Affairs, Government of India, having
his office at South Block, New Delhi - 110001.
3. The Director General, Central Reserve Police Force, having his office at
Block NO.1, CGO Complex, Lodhi Road, New Delhi - 110003.
4. The Inspector General, Central Reserve Police Force, having his office at
Central Reserve Police Force, Tripura Sector Headquarters, Usha Bazar,
Airport Road, Agartala - 799009.
5. The Deputy Inspector General, (CR & VIG.), Directorate General, CRPF,
Block No.1, CGO Complex, Lodhi Road, New Delhi - 110003.
6. The Inspector General, Central Reserve Police Force, Bihar Sector,
having his office at Digha Complex, PO - Ashiyana Nagar, PS - Rajeev
Nagar, Patna, Bihar - 800025.
7. The Commandant, Tripura Sector Headquarters, Central Reserve Police
Force, having office at Usha Bazar, Airport Road, Agartala, West Tripura -
799009.
8. The Deputy Commandant (Legal Officer), Tripura Sector Headquarters,
Central Reserve Police Force, having office at Usha Bazar, Airport Road,
Agartala, West Tripura - 799009.
9. The Deputy Commandant (Legal Officer), Manipur & Nagaland Sector
Headquarters, Central Reserve Police force, having office at Group Centre,
Central Reserve Police Force campus, Langjin, Imphal, Manipur - 795113.
10. Miss Charu Sinha, daughter of Shyam Mohan Sinha, resident of Plot No.
9, ICRISAT Colony, Phase - I, Akbar road, Tadbund, Secundrabad,
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Telengana - 500011, presently holding the post of the Inspector General,
Central Reserve Police Force, Bihar Sector, having office at Digha
Complex, PO - Ashiyana Nagar, PS - Rajeev Nagar, Patna, Bihar - 800025.
11. Smt. Madhubala, wife of Sri Rajesh Yadav, resident of H.N- 698,
Sector-14, Gurugram Haryana- 122001, presently holding the post of the
Commandant, Tripura Sector Headquarters, Central Reserve Police Force,
having office at Usha Bazar, Airport Road, Agartala, West Tripura -
799009.
12. Sri R.N Biroli, son of Sri Kumodiya Biroli, resident of village -
Tatanagar, PO - Tatanagar, District - West Singbhum, State - Jharkhand -
833201, presently holding the post of the Deputy Commandant (Legal
Officer), Tripura Sector Headquarters, Central Reserve Police Force, having
office at Usha Bazar, Airport Road, Agartala, West Tripura - 799009.
13. Sri Rakesh Chaudhary, son of Sri Patiram Chaudhary, resident of village
- Gorhi, PO - Gorhi, District - SantKabirnagar, State - Uttar Pradesh -
272175, presently holding the post of The Deputy Commandant (Legal
Officer), Manipur & Nagaland Sector Headquarters, Central Reserve Police
Force, having office at Group Centre, Central Reserve Police Force campus,
Langjin, Imphal, Manipur - 795113.
14. Smt. Manika Dutta Roy, Chairperson, Tripura Commission for Women,
having office at Melarmath, PO - Agartala, PS - West Agartala, Sub-
Division - Agartala, District - West Tripura.
15. Smt. Barnali Goswami, Chairperson, Tripura Commission for Women,
having office at Melarmath, PO - Agartala, PS - West Agartala Sub-Division
- Agartala, District - West Tripura.
16. Smt. Nisha Tiwari, wife of Sri Deep Shekhar Mohan, resident of Type -
4 Quarter, Adarani Tea Estate, Salbagan, holding the post of General Duty
Medical Officer Group Centre, CRPF, Agartala, West Tripura, Pin -
799012.
                                                       -----Respondent(s)

For Petitioner(s) : Mr. Somik Deb, Sr. Advocate, Ms. S. Chisim, Advocate.

For Respondent(s) : Mr. Biswanath Majumder, CGC.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

Date of hearing and judgment : 17th September, 2021.

      Whether fit for reporting         : YES.

                       JUDGMENT & ORDER (ORAL)

The petitioner has prayed for quashing the proceedings and

consequential orders passed thereon pertaining to a complaint of sexual

harassment made against him by the respondent No.16. Since a final

decision is yet to be taken by the department in connection with such a

complaint, I would not make any observations with respect to the factual

aspects. Nonetheless, a brief reference to some of the facts would be

inevitable.

2. The petitioner at the relevant time was working as Deputy

Inspector General in Central Reserve Police Force (CRPF, for short). The

respondent No.16 (hereinafter to be referred to as the complainant) was

serving as General Duty Medical Officer at the Group Centre of CRPF

where the petitioner was posted. She lodged a complaint before the Director

General of CRPF on 26.07.2018. In this complaint she had stated as under:

―To The DG CRPF, BLOCK NO1 CGO COMPLEX, LODHI ROAD NEW DELHI-110003

SUB: Complaint.

Dear sir/madam,

With due respect and humble submission I would like to state that I Dr. NISHA TIWARI, GDMO IRLA NO-

505488 of GC CRPF AGARTALA TRIPURA joined my service as GDMO on Dated 29 November 2017.

I would like to draw your kind attention on the above subject matter.

1. As above I joined GC crpf Agartala and at that time Shri Vinay Kumar Rai, took the charge of DIG, Range Agartala as well as he also had additional charge of Group Centre, CRPF Agartala. Being a DIG of GC and as a protocol I went to call on him in his office at morning 9.30 hrs and after that I went to joined my duty but at evening 17.00 hrs without any reason he ordered a called from the control room and asked me to meet him at 17.30 hrs in his offices chamber. For which I had to met him again in his office room there he had forcefully taken my personal mobile number which I was not willing to gave him.

2. Sh Vinay Kumar Rai, DIG started to send me messages and I replied him in a formal way, but after some messages he sent me some informal messages. I stopped replying him and blocked his number.

3. The above officer started calling me in my landline number and asked irrelevant matter. I strictly replied him to talked to my senior male counterpart doctor Dr. Babul Roy posted in GC Agartala. I tried to avoid his irrelevant calls but still he used to call me forcefully in my landline number in odd hrs.

4. Not only Sh. Vinay Kumar Rai but also his wife Smt. Shalini Rai always billingsgate and threaten me.

5. My husband DR D S Mohan, (CMO-OG) is recently posted in 71 BN, Khumlung, Agartala because of spouse posting special case and he is also allotted a quarter in GC Agartala. But as 71 bn is under DIG Range Agartala Sh Vinay

Kumar Rai. Being a DIG Range, Sh Vinay Kumar Rai strictly told Commandant 71 Bn not to give him out living permission and told him to make him stay in the unit campus only.

As above all this matter made me so much worried and mentally disturbed. I could not send this message to you but he should get a lesson so that he will not do such kind of behaviour with his Juniors wife. I request you madam to kindly keep this letter as confidential.

Yours sincerely NISHA TIWARI, GDMO GC AGARTALA.‖

3. On 20.08.2018 the DIG issued an order constituting a Sector

Level Complaints Committee (SLCC, for short) in terms of the provisions

contained in the Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act, 2013 (hereinafter to be referred to as the

Act of 2013). This committee consisted of one lady IPS Officer, as a

Chairperson, one more lady officer also from the department, one lady

member representing the NGO and a Legal Officer of the department.

4. The SLCC carried out the inquiry into the allegations of the

complainant and eventually submitted a report on 07.02.2019. The contents

of the report read as under:

―Please refer Directorate Order No.C.IV-03/2018-Vig dated 20/08/2019 and amendment issued vide order of even no. dtd 6/2/2019

2. Vide above mentioned order, a SLCC was constituted by the Directorate to look into the complaint filed by Dr.

Nisha Tiwari GDMO of GC Agartala against Shri Vinay Kumar Rai DIG.

Committee has taken stock of all the facts, examined necessary witnesses and collated all possible evidences.

The committee has gone into minute details of the entire environment at the GC, following the complaint. The committee found that the general environment has been vitiated by the Charged Official and his wife, by their behavior, bullying, threatening and constant character assassination of others who do not toe the line, through their vicious remarks and dirty, vulgar and obscene jokes. It is very clear that the Charged Official did make advances towards the complainant, in a way that made her uncomfortable and affected her negatively mentally and emotionally. His very presence here as a range DIG is probably preventing other witnesses, who have knowledge of the harassment, from coming forth and deposing against him. The constant threat of ―Spoiling ACR‖ by the DIG and his wife Mrs. Shalini Rai is a sword hanging on the heads of officers junior to him in the hierarchy. His presence is clearly intimidating the complainant too. She even refuses to come out of her residence for fear of coming in front of them by chance and has stopped socializing completely.

Therefore the committee is strongly of the opinion that Sh. Vinay Kumar Rai, DIG be transferred out of Agartala immediately, to protect the interest of the complainant and also to ease the intimidating and threatening environment. His wife may also be asked to leave with him. This will ease the intimidating environment in the interest of the complainant. It

will also ease the threat of an adverse ACR on the officers, who may want to depose against him.‖

5. At that stage, the petitioner approached the Court and has

prayed for quashing the very complaint and all consequential steps taken by

the department as well as the SLCC. Learned counsel for the petitioner has

raised following contentions:

(i) The complaint does not constitute sexual harassment by

the petitioner as defined in Section 2(n) of the Act of 2013.

(ii) Counsel contended that there was considerable delay in

filing the complaint. He pointed out that as per Section 9 of the Act a

complaint of sexual harassment should be made within a period of three

months from the date of the incident. In the present case, the complaint was

made after several months.

(iii) The counsel contended that the complaint was not filed

by the lady herself but was filed by her husband. Since she did not suffer

from any legal handicap, it was not open for someone else to file the

complaint on her behalf.

(iv) Counsel further contended that the petitioner was a high

level IPS Officer. No charge-sheet could have been issued to him without

the permission of the concerned Minister. In this respect, he relied on a

decision of Supreme Court in case of Union of India and others vrs. B.V.

Gopinath reported in (2014) 1 SCC 351.

(v) He drew my attention to sub-section (4) of Section 11 of

the Act of 2013 which provides that inquiry into such complaints of sexual

harassment should be completed within ninety days. According to him, since

in the present case the same was not completed, further proceedings of the

inquiry committee and the report submitted would be invalid.

(vi) He submitted that the copies of the depositions of

witnesses were not supplied to the petitioner before the committee submitted

the said report.

(vii) He lastly contended that Smt. Barnali Goswami was

appointed as Chairperson of the committee on 06.02.2019 whereas she has

signed the minutes of the meeting dated 04.02.2019, which is clearly a gross

irregularity which goes to the root of the matter.

6. I have also heard learned counsel for the official respondents

CRPF and perused the affidavit filed by the respondents. None of the

contentions raised by the counsel for the petitioner persuade me to accept the

prayers made in the petition. I shall deal with each contention separately.

7. The term ―sexual harassment‖ is defined in the Act of 2013

under Section 2(n) as under:

―(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;‖

8. As per this definition thus the term ―sexual harassment‖ would

include any one or more of the unwelcome acts or behaviour whether

directly or by implication such as, physical contact and advances, demand or

request for sexual favours, making sexually coloured remarks, showing

pornography or any other unwelcome physical, verbal or non-verbal conduct

of sexual nature. Two things emerge from this definition. This term is

defined in an inclusive manner and thus clearly is not meant to be

exhaustive. Secondly, when the definition refers to any of the acts or

behaviour described therein, it also provides that weather such act or

behaviour is committed directly or by implication, the same would be

included in the definition. Thus, the definition is meant to be expansive.

9. With this clarity we may refer to the complaint made against

the petitioner which is reproduced in the earlier portion of the judgment. In

this complaint the complainant had stated that she had joined CRPF at

Agartala at a time when the petitioner had taken charge as IT Range,

Agartala as well had additional charge of Group Centre CRPF. When she

went to meet him as a matter of protocol after joining the duty in the

morning, he called her for a meeting only at 5.30 in the evening in his

chamber. During the meeting the petitioner had forcibly taken her personal

mobile number though she was unwilling to share. On such number the

petitioner started sending messages which she would reply formally but

some of the messages the petitioner sent were informal and, therefore, she

stopped replying to such messages and blocked his number. The petitioner

thereafter started calling her on the landline and asked irrelevant questions.

She did not encourage him and in fact, spoke with her senior Dr. Babul Roy

also posted there. She tried to avoid his calls but he was persistent and

would insist on talking to her on the landline. Not only the petitioner but his

wife also acted with belligerence and threatened her. When her husband was

also posted at Agartala and was allotted a quarter, the petitioner instructed

that he should not be permitted to live there and asked him to make his

arrangement in the unit campus only. Such behaviour of the petitioner,

according to the complainant, left her worried and mentally disturbed. She,

therefore, requested that proper steps may be taken against him so that he

may not repeat such behaviour with other lady employees.

10. The allegations of the complainant thus were very serious and

narrated series of instances of pure harassment by the petitioner to a lady

member in a workplace where he was holding the highest position. The

complaint per se may not contain any instance of a demand of sexual favour

by the petitioner, nevertheless considering the wide amplitude of the

definition of term ―sexual harassment‖ contained in Section 2(n) of the Act,

it is not even necessary. Further, the complaint itself cannot be seen in

isolation. What must be borne in mind is that the petitioner had newly joined

at the workplace and her highest superior officer had straightway subjected

her to pressure tactics through different means. During the course of the

inquiry, the statement of the complainant was recorded in which she had

further revealed that on 11.12.2017 the petitioner called her on intercom and

asked her to come to his chamber after duty hours. When she went there, the

petitioner told her why was she so busy and that she is looking nice and her

dress suits her and sometimes she should also attend to him. The petitioner

then got up from his chair and tried to put his arms around her from behind

and before he could go any further she panicked and ran out of the room.

Thereafter she never went back to the office and tried to avoid him totally.

In my view whatever little doubt the counsel for the petitioner may carry

regarding explicit allegations of sexual harassment in the complaint, the

same must disappear from this further statement of the lady. It is not

possible to judge a complaint of sexual harassment like a criminal case

where unless the FIR on the face of it discloses commission of a cognizable

offence, investigation into the same would not be permitted. What would be

the effect of the further statement of the complainant on the ultimate

outcome of the inquiry is not my brief just now. What is of consequences is

that the complaint itself is sufficient to fall within the definition of the

complaint of sexual harassment as defined under Section 2(n). The further

allegation by the complainant before the inquiry committee more than

cements this position. The different means of harassment allegedly

employed by the petitioner as stated in the complaint, can at best be seen as

a buildup for further demands or harassment of sexual nature. First

contention of the counsel for the petitioner is, therefore, turned down. Before

going to the next issue, it is clarified that I have referred to the allegations

and materials on record only from the point of view of deciding whether the

allegations against the petitioner amount to a sexual harassment or not and

none of my observations should be seen as accepting any of the allegations.

11. Section 9 of the Act of 2013 pertains to complaint of sexual

harassment. Under sub-section (1) of Section 9 any aggrieved woman may

make in writing a complaint of sexual harassment at workplace to the

Internal Committee so constituted or the Local Committee in case it is not

constituted, within a period of three months from the date of incident and in

case of a series of incidents, within three months from the date of last

incident. Further proviso to sub-section (1) of Section 9, however, provides

that the Internal Committee or as the case may be Local Committee may for

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. Question of delay

is thus a matter to be considered by the Internal Committee and not by the

Court at an interim stage of the proceedings.

12. The contention that the complaint was not made by the

respondent No.16 but by her husband is factually incorrect. The petitioner

has produced a copy of the complaint at page 31 which carries the name of

the complainant and is addressed to the Director General of CRPF. It is only

the second page of this complaint which carries the name of the husband of

the complainant. The petitioner has also admitted in the petition that the

complaint was forwarded from the e-mail address of the complainant. It is,

therefore, not possible to accept that the complaint was filed by a person

other than the aggrieved woman. In that view of the matter, it is not

necessary to examine whether with the aid of sub-section (2) of Section 9

someone other than the aggrieved woman could have filed the complaint.

13. The contention that the inquiry was not completed within

ninety days as provided in sub-section (4) of Section 11, therefore, must be

set aside does not stand to logic at all. Section 11 of the Act pertains to

inquiry into complaint. Sub-section (1) of Section 11 provides that subject to

the provisions of Section10, the Internal Committee or the Local Committee,

as the case may be, proceed to make inquiry into the complaint in

accordance with the provisions of the service rules and if prima facie case

exists, forward the complaint to the police within seven days for registering

the case under Section 509 of the Indian Penal Code. Sub-section (4) of

Section 11 provides that the inquiry under sub-section (1) shall be completed

within a period of ninety days. Sub-section (4) of Section 11 nowhere

provides the consequences for not completing the inquiry within ninety

days. Ordinarily as per the principles of statutory interpretation when a

provision which provides for a time limit is not coupled with any penal or

adverse consequences in completing the task so envisaged under the statute,

is not considered mandatory. In any case, it would be wholly illogical that

for the inability of the committee to complete the inquiry into the complaint

of sexual harassment the aggrieved person would suffer the fate of the

complaint being terminated without conclusion. In plain terms, the

legislative intent is very clear namely that such complaint should be treated

with seriousness and should be completed as soon as possible so that if the

allegations are correct the aggrieved person may get justice and respite from

further harassment and if allegations are found to be untrue the person

against whom such complaint is made may get honourable exoneration.

However, this time limit provided in sub-section (4) of Section 11 cannot be

seen as a terminal point beyond which the inquiry cannot continue.

14. The question of supply or non-supply of the statements of some

of the witnesses cannot be a subject matter before the writ Court at this stage

when the proceedings are still not completed. Whether relevant material was

provided to the petitioner or not and if not, what would be the effect thereof

must be judged by the authority at the first instance.

15. The principle that no charge-sheet could have been issued

without the clearance by the concerned Minister also cannot be applied in

the present case since what the department has constituted is a SLCC and no

departmental charge-sheet has been issued. Fall out of the inquiry, does not

necessarily have to be on the service conditions of the petitioner. Such

inquiry has much wider scope and purport.

16. The allegation of the Chairperson of the committee acting

before her appointment has been denied by the respondents in the affidavit.

In this context, the respondents have stated as under:

―25. That, as regards the averment and statement made by the petitioner in Para-4.9 of the writ petition, I on behalf of the Respondents beg to state that the contention of the petitioner is not tenable. Due to administrative reasons, the NGO member viz., Smt. Barnali Goswami, Chairperson, State Women Commission, Tripura was approved in place of NGO member detailed earlier vide Order dated 20.08.2018 and she was associated with SLICC from the very beginning of the enquiry process. However, a formal amendment order was issued on 06.02.2019 to the effect of amendment in change of name of NGO Member which is in accordance to rules.‖

17. It can thus be seen that Smt. Barnali Goswami was already

appointed as the Chairperson under order dated 20.08.2018. Her

participation in the proceedings of 04.02.2019, therefore, was not

unauthorized. As per the department, it was only a formal amendment which

was issued on 06.02.2019 and that is how the dichotomy has been explained.

18. Learned counsel for the petitioner had lastly and rather

fleetingly and I would say feebly argued that the order dated 20.08.2018 of

constituting the SLCC was not passed in the name of the President. I do not

see where such a requirement flows from.

19. In the result, petition is dismissed.

Pending application(s), if any, also stands disposed of.

20. Interim relief stands vacated.

(AKIL KURESHI), CJ

Pulak