Tejinder Kaur Vs. Union of India and Ors. - (High Court of Delhi) (12 Dec 2017)

An inquiry would commence only when Disciplinary Authority is of the opinion that there are grounds to enquire into the matter

MANU/DE/5184/2017

Service

The Petitioner has filed the present petition, impugning a "status report" prepared by Respondent No. 5, holding that, the complaint of sexual harassment made by one Ms. X (the real name is not mentioned to avoid any ignominy to the person concerned) was time barred. The Petitioner - who is the Presiding Officer of the Internal Complaints Committee ('ICC') of Respondent No. 2 at Headquarters at Delhi - claims that, the impugned report is wholly contrary to the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. According to her, said report could only have been generated by ICC constituted under Section 4 of the Act.

It is also Petitioner's grievance that, the provisions of the Act are not being followed by Respondent No. 2 as Respondent No. 2 has consistently failed to display at a conspicuous place the forms and the penal consequences of sexual harassment as well as the order(s) constituting the ICC. The Petitioner also claims that, act of Respondent No. 5 in submitting impugned report rejecting complaint of Ms. X as time barred is mala fide and was submitted with the sole object of protecting the officer (who was at the material time holding the post of Regional Director at Indore) accused of harassing Ms. X.

Section 9(1) of the Act, provides for making a complaint of sexual harassment at workplace to the ICC or the Local Committee. Section 10(1) of the Act empowers the ICC or the Local Committee to take steps to settle the matter between the aggrieved woman and the respondent through conciliation prior to commencing an inquiry. Admittedly, in present case, no complaint was made to the ICC by Ms. X. There is also no dispute that ICC would be the inquiring authority in cases of complaints of sexual harassment.

The complaints of sexual harassment and disciplinary proceedings pursuant thereto have to be conducted in the manner as specified under the CCS (CCA) Rules, 1965. Insofar as the Inquiring Authority is concerned, there is no dispute that, the inquiry has to be conducted by the ICC. However, there is no specific provision in the CCS (CCA) Rules, 1965 that indicates the manner as to how the Disciplinary Authority has to proceed on receipt of the complaint. The opening sentence of Rule 14(2) of the CCS(CCA) Rules, 1965 makes it clear that an inquiry would commence only when the Disciplinary Authority is of the opinion that there are grounds to enquire into the matter. Thus, if the Disciplinary Authority is of the opinion that, no inquiry is warranted, the question of referring the matter to the ICC for inquiry would not arise.

In order to form an opinion whether there are grounds to inquire into the matter, the Disciplinary Authority would necessarily have to examine the material produced and may also require to conduct a preliminary investigation. The limited controversy is whether it is necessary for the Disciplinary Authority to seek assistance of the ICC for forming such opinion. ICC has a dual role. It has to act as an investigation agency in the first stage and as an Inquiring Authority, if the Disciplinary Authority is of the opinion that disciplinary proceedings be initiated against the officer accused. However, it is also necessary to bear in mind that the above steps are only to serve as a guide and does not replace the statutory provisions of the Act or the CCS(CCA) Rules, 1965. ICC having been specifically set up for examining the complaints of sexual harassment, it would have been apposite to refer the complaint of Ms. X to the concerned ICC for a preliminary investigation rather than Respondent No. 5.

Ms. X. stated that, she was associated with the accused officer since, 2012 and he had made her apply for various posts that were advertised and had assured her that she would be selected. She alleges that "Slowly he started getting personal and exclaimed how much he cares for me. As is apparent, the complaint does not contain any specifics. Ms. X has also not made any grievance of her complaint not being entertained; she has taken no steps to pursue the matter. Apparently, Ms. X was last hired as a resource person at the Regional Centre of the Institute at Indore in 2012. The officer accused has also unequivocally stated that, Ms. X last visited the centre in 2013. Thus, indisputably, the complaint made by Ms. X would be highly belated.

On terms of the second proviso to Section 9(1) of the Act, the ICC or the Local Committee may for the reasons recorded in writing, extend the time limit, if it is satisfied that there were circumstances, which prevented the woman from filing a complaint. However, such period can only be extended for a further period of three months. Thus, notwithstanding that, complaint ought to have been forwarded to the concerned ICC, there does not appear to be any infirmity with the view that, the complaint was belated. There is no provision under the Act which would entitle the Petitioner to pursue the complaint on behalf of Ms. X. No interference with the impugned report would be warranted at this stage.

The Petitioner cannot claim any right to continue in Delhi only because the complaint of Ms. X was not referred to the ICC. Even if, it is assumed that, the Institute has not been following the provisions of the Act in its letter and spirit, the Petitioner cannot insist on being continued to be posted in Delhi. This Court is refraining from making any further observations with regard to the averments made by the petitioner in this regard and it would be open for the petitioner to pursue her remedies with regard to the service matter with the Central Administrative Tribunal. The petition is accordingly dismissed.

Tags : COMPLAINT SEXUAL HARASSMENT TIME BARRED