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Judgment
R.S. Ramanathan, J.—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 Vishaka and others Vs. State of Rajasthan and 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.
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.
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.
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.
Heard both sides.
In Vishaka and others Vs. State of Rajasthan and Others, , the Honourable Supreme Court has laid down the following guidelines has incorported in the said judgment in para 16.
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 Ors. v. State of Rajasthan and Ors. (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.
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 and Ors. v. 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 and others Vs. State of Rajasthan and Others, 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 Ors. v. State of Rajasthan and Ors. (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 Vs. State of Rajasthan and Others, at 253, will be deemed to be an inquiry authority for the purposes case 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 withtherules.
Similar amendments shall also be carried out in the Industrial Employment (Standing Order) Rules.
These judgments were interpreting by the Honourable Division Bench of this Court in the judgment reproted in The Chairman, Navodaya Vidyalaya Samiti, Ministry of HRD, The Commissioner, Navodaya Vidyalaya Samiti and Hazarika Vs. Dr. T. Murugesan, The Deputy Commissioner/Director Collector, The Additional Deputy Commissioner and The Registrar, Central Administrative Tribunal, , 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.
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.
With the above observations, this petition is disposed of consequently, connected M.P. is closed. No costs.