BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30/06/2011
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
W.P.(MD)No.8782 of 2009
and
M.P.(MD)No.1 of 2009
Dr.P.Samy B.V.Sc., ... Petitioner
Vs.
1.The Commissioner of Animal Husbandry and
Veterinary Service,
Central Office Buildings,
Block 2,
DMS Compound, Teynampet,
Chennai-600 006.
2.The Regional Joint Director,
Animal Husbandry,
Virudhungar. ... Respondents
Prayer
This writ petition filed under Article 226 of the Constitution of
India to call for the records pertaining to the impugned charge memo in
Na.Ka.No.43455/L2/2009, dated 11.08.2009 issued by the 1st respondent and quash
the same.
!For Petitioner ... Mrs.S.Srimathy
for SMS Johny Basha
^For respondents ... Mr.M.Rajarajan
Government Advocate
:ORDER
The petitioner challenges the charge memo issued against him on the ground
that without following the principles laid down by the Hon’ble Supreme Court in
the judgment reported in AIR 1997 SC 3011 in the case of Vishaka and others vs.
State of Rajasthan & others and without forming Complaints Committee as laid
down by the Honourable Supreme Court, the intiation of departmental proceedings
against the petitioner for having given sexual harassment to his subordinate is
not maintainable and therefore, the impugned charge memo is liable to be
quashed.
2.It is submitted by the learned counsel appearing for the petitioner,
Mrs.Srimathy that as per the law laid down by the Honourable Supreme Court in
the judgment referred to above, the Government has to constitute a Complaints
Committee, which has to enquire into the allegations of sexual harassment made
against any of the employees and after getting a report from the Complaints
Committee further action has to be taken and in this case, admittedly, no
Complaints Committee has been constituted and no enquiry was condcuted by the
Complaints Committee regarding the allegations of sexual harassment by the
petitioner and without conducting any proper enquiry, the 2nd respondent issued
the charge memo and therefore, that is liable to be quashed.
3.The respondents filed a detailed counter and the learned Government
Advocated contended that as per the judgment of the Honourable Supreme Court
referred to above, the Government of Tamilnadu has formulated the procedure for
conducting enquiry by the Complaints Committee, by its letter, dated 29.12.2000
issued by the Chief Secretary to Government and as per the said letter, in
annexure-I, procedure for conducting enquiry by the Complaints Committee was
stated and as per annexure-II, guideline for the employers has also been stated
and it has been specifically stated that where the conduct of an employee
amounts to miscondcut in employment as defined in the relevent rules, the
employer may also initiate appropriate disciplinary action, for good and
sufficient reasons, though no complaint is made to the Complaints Committee.
4.It is, therefore, conteneded by the learned Government Advocate,
Mr.M.Rajarajan that having regard to the guidelines given in annexure-II the
employer in addition to referring the matter to the Complaints Committee is also
entitled to initiate appropriate disciplinary action in accordance with the
relevent rules, when the condcut of an employee amounts to misconduct and in
this case, the condcut of the petitioner amounts to misconduct as per the
Tamilnadu Civil Service (Conduct) Rules and therefore, the charge memo was
issued agaisnt the petitioner and it was in order and it cannot be quaqshed.
5.Heard both sides.
6.In Vashaka and others vs. State of Rajasthan and others, reproted in
AIR 1997 SC 3011, the Honourable Supreme Court has laid down the following
guidelines has incorported in the said judgment in para 16.
7.After the judgment of Supreme Court most of the employers have
understood that the committee’s report are only recommendary and as done so as
to find out a prima facie case warranting further intimation of disciplinary
action separately under the relevant service rules. Because of this
understanding of law, women, who were sexually harassed, were made to appear
twice in two separate enquiries and this led to further harassment and
humiliation. Subsequently, the Supreme Court considered the complaints made by
various representations of the woman’s organisations and passed further order
clarifying Vishaka and Others vs. State of Rajasthan and Others (supra) case
where the Supreme Court directed Governments to strictly go by the report of the
Sexual Harassment Committee and made the enquiry report as the starting point of
further’, proceedings. The employers were directed to proceed from the stage of
the enquiry report and take appropriate action. In this regard, the Supreme
Court also directed for amendment of relevant Service Rules.
8.Further, the Honourable Court also clarified the law laid down in
Vishaka’s case in the judgment reported in (2009)16 SCC 624 in the matter of
Medha Kotwal Lele & others vs. Union of India and others and the order reads as
follows:-
“Several Petitions had been filed before this Court by Women Organisations
and on the basis of the note prepared by the Registrar General that in respect
of sexual harassment cases the Complaints Committees were not formed in
accordance with the guidelines issued by this Court in Vishaka v. State of
Rajasthan (1997)6 SCC 241 and that these petitions fell under Clause (6) of the
PIL Guidelines given by this Court i.e., “Atrocities on Women” and in any event
the Guide-lines setout in Vishaka and Others v.State of Rajasthan and Others
(supra) were not being followed. Thereupon, this Court treated the, petitions as
Writ Petitions filed in public interest.
Notice had been issued to several parties including the Government
concerned and on getting appropriate responses from them and now after hearing
Learned Attorney General for UOI and learned Counsel we direct as follows:-
‘Complaints Committee as envisaged by the Supreme Court in its Judgment in
Vishaka and Others v. State of Rajasthan and Others case(1997)6 SCC 241 at 253,
will be deemed to be an inquiry authority for the purposes case 1997(6)SCC 241
at 253 will bee deemed to be an inquiry authority for the purposes of Central
Civil Service (Conduct)Rules 1964 (hereinafter called CCS Rules) and the report
of the complaints Committee shall be deemed to be an inquiry report under the
CCS rules. Thereafter the disciplinary authority will act on the report in
accordance with the rules”.
Similar amendments shall also be carried out in the Industrial Employment
(Standing Order) Rules.”
9.These judgments were interpreting by the Honourable Division Bench of
this Court in the judgment reproted in (2008)5 MLJ 261 in the case of Chairman,
Navodaya Vidyalaya Samiti, Ministry of HRD, Shastri Bhavan, New Delhi and others
vs. Dr.T.Murugesan and others, held as follows:-
‘Therefore now the employers can have only one stage action. After the
Sexual Harassment Committee’s report, they must proceed to impose punishment on
an employee found guilty of sexual harassment. This order came to be passed by
the Supreme Court, as the Court had received complaints that the earlier
procedure led the woman being further harassed by attending before two separate
enquiries one by the Special Committee and the other before the Enquiry Officer
appointed in terms of Service Rules. In the light of the above, the question of
examining the victim girl in the presence of the first respondent does not
arise.”
Therefore, as per the law laid down by the Honourable Supreme Court, the report
of the Complaints Committee shall be the basis for taking disciplinary
proceedings and the authorities are entiteld to take further action on the basis
of the report of the Complaints Committee. Though the Government of Tamil Nadu
has issued a letter and formulated the guidelines for the formation of
Complaints Committee and also permitted the employer to take disciplinary
proceedings, if the condcut of the Government Servant amounts to misconduct as
per the relevant Rules as per law laid down by the Honourable Supreme Court as
stated above in the absence of any complaint given to the Complaints Committee
and in the absence of any report by the Complaints Committee, the employer
cannot take any action for sexual harassment.
10.Hence, the charge memo issued against the petitioenr is deferred for
the time being and the respondents are directed to constitute a Complaints
Committe if such Committee has not been constituted so far and the Complaints
Committee shall go into the allegations made against the petitioner and after
the receipt of the report of the Complaints Committee, the respondents are
entitled to take further action.
11.With the above observations, this petition is disposed of.
consequently, connected M.P. is closed. No costs.
er