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PoSH: Sexual Harassment: Gauhati HC Stays disciplinary proceedings where the complaint before ICC was not established

 

 

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THE GAUHATI HIGH COURT

HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)

 

Praveen vs The Airport Authority Of India And ... others

on 24 February, 2023

                                                                                     

WP(C)/949/2023

 

         PRAVEEN V S

        

         VERSUS

 

         THE AIRPORT AUTHORITY OF INDIA AND 6 ORS.

       

         ASSAM- 781015

 

           

REP BY THE CHAIRPERSON

 

            7:MS. PHIBAHUNLANG SWER

            ASSTT. MANAGER (COMMERCIAL)

 

            AIRPORTS AUTHORITY OF INDIA

            IMPHAL AIRPOR

 

Advocate for the Petitioner   : MR. S BANIK

 

Advocate for the Respondent : SC, A A I

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH 24.02.2023

Heard Mr. S. Banik, the learned counsel for the petitioner and Mr. R. Dubey, the learned counsel appearing on behalf of the respondent No.1 to 6.

2. Issue notice making it returnable on 24.03.2023.

3. As Mr. R. Dubey, the learned counsel appears on behalf of the respondent Nos.1 to 6, extra copies of the writ petition be served upon Page No.# 3/5 him by Monday, i.e. on 27.02.2023.

4. In respect to the respondent No.7, steps be taken by way of registered post with A/D as well as usual within 3 (three) days.

5. Further to that, the petitioner is also directed to take steps upon the respondent No.7 by way of dasti to be routed through the Registry of this Court and file an affidavit of service through the person who has effect the service upon the respondent No.7.

6. The issue involved herein is that the respondent No.7 had lodged a complaint under the Provisions of the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 (for short, the Act of 2013) against the petitioner. The said complaint was filed before the Internal Complaints Committee, i.e. the respondent No.6 herein. During the said proceedings, there was a conciliation between the petitioner and the respondent No.7 and on the basis of that a statement was recorded from both the parties that both of them have forgotten all the past bitterness and shall maintain a good official relationship to each other and no such situation would arise in future. It was also declared by the petitioner as well as the respondent No.7 that no further follow up shall be made in the matter from their sides.

7. Pursuant to the said statement given by the petitioner and the respondent No.7, the said complaint proceedings was closed with a conclusion arrived at to the effect that no conclusion could be made regarding the complaint dated 24.01.2020 due to lack of evidence/proof/witness and the petitioner having totally denied the incident. On the basis of the said conclusion reached, the enquiry report was forwarded for acceptance. Subsequent thereto, the matter stood settled between the petitioner and the respondent No.7. However, on 25.02.2021, the respondent No.7 being aggrieved with the conclusion reached to the effect that the complaint dated 24.01.2020 did not have evidence/proof/witness for which it was closed had submitted a communication dated 25.02.2021 to the General Manager (HR) of the Airport Authority of India. In the said communication, it was mentioned that the fact that there was no evidence is incorrect and in that regard had forwarded certain objectionable materials to the addressee. However, it has also been mentioned in the said communication that the said communication dated 25.02.2021 was only issued for modifying the statement of closing the case and also with a request that she may never to be put to work under the petitioner in future. On the basis of the said communication dated 25.02.2021, the respondent authorities, instead of referring the matter back to the respondent No.6, have initiated the Departmental Proceedings as per Sub- Regulation 5 (xxxvii) of the AAIE (CDA) Regulations.

8. The instant writ petition has been filed by the petitioner challenging the said Departmental Proceedings so initiated before this Court.

9. The learned counsel for the petitioner has submitted that the Act of 2013 is a special Act in respect to special field. He, therefore, submits that unless and until there is a recommendation so made by the respondent No.6, which however, has not been done in the instant case, the initiation of the Departmental Proceedings by the respondent authorities is on the face of it, not tenable for which the entire proceedings needs to be set aside and quashed. Referring to Section 13 of the Act of 2013, the learned Page No.# 5/5 counsel for the petitioner has submitted that the Internal Complaints Committee which is the respondent No.6 herein, upon a complaint being filed, has to either make a recommendation that no action is required to be taken or make a recommendation that action needs to be taken and it is only in pursuant to the later recommendation that action can be taken for sexual harassment of as a misconduct in accordance with the provisions of the Service Rules.

10. This Court has also heard Mr. R. Dubey, the learned counsel appearing on behalf of the respondent Nos.1 to 6. Upon a specific query being made upon him as to whether any recommendation has been made by the respondent No.6 for initiating any action for sexual harassment as a misconduct in accordance with the provisions of the Service Rules, the learned counsel for the respondent Nos.1 to 6 with all fairness submits that as per his instructions there is no such recommendation.

11. Taking into account the same, this Court, therefore, is of the opinion that in the interest of justice, the Departmental Proceedings initiated against the petitioner on the basis of the Memorandum dated 25/31.10.2022 is stayed till the next returnable date.

12. List accordingly.

JUDGE Comparing Assistant

 

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