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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