Dr. Arshad Kalliath Vara v. Kamala (Junior Consultant), Chest Disease Hospital, Pulayanarkotta; The Chairperson and Superintendent Chest Disease Hospital, Pulayanarkotta; The Director Directorate of Health Services; State of Kerala represented by the Secretary to Government, Health and Family Welfare Department

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940** ## **WP(C).No. 31132 of 2015** ## **PETITIONER/S:** **DR.ARSHAD KALLIATH VARA 309, HILL VIEW LANE, ARAPPURA ROAD, VATTIYOORKAVU, THIRUVANANTHAPURAM.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENT/S:** - **1 DR.KAMALA JUNIOR CONSULTANT, CHEST DISEASE HOSPITAL, PULAYANARKOTTA, THIRUVANANTHAPURAM, PIN-695573.** - **2 THE CHAIRPERSON AND SUPERINTENDENT CHEST DISEASE HOSPITAL, PULAYANARKOTTA, THIRUVANANTHAPURAM, PIN-695573.** - **3 THE DIRECTOR DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM, PIN-695001.** - **4 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** **BY ADVS. SRI.M.G.KARTHIKEYAN SMT.MARY BEENA JOSEPH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 31132 of 2015** **2** ## **JUDGMENT** **The petitioner challenges Exts.P7 and** **P8 proceedings initiated against him under the provisions of Sexual Harassment of Women at Workplace Act, 2013 (hereinafter in short 'the Act, 2013) on the ground that he was already proceeded against and was transferred to another hospital.** **2. Petitioner and the 1[st] respondent were working in the Chest Diseases Hospital. Petitioner was a Consultant and the 1[st] respondent was a Junior Consultant. The 1[st] respondent filed Ext.P1 complaint alleging that she was harassed by the petitioner mentally and physically. She had also filed a complaint before the police. Ext.P2 notice was issued thereafter and petitioner appeared before the Complaints Committee on Sexual Harassment at Workplace in a meeting held on 27.02.2013. The Committee took the statement of the petitioner** **WP(C).No. 31132 of 2015** **3** **as well as the 1[st] respondent and others and thereafter submitted Ext.P4 report, in which both of them were found to have been having close relationship but occasionally they were found quarrelling also. It was also found that there was serious lapse from the 1[st] respondent that the matter was not reported to the Higher Authorities earlier, to avoid worsening of the situation further. The 1[st] respondent had stated that she had to suffer even physical assault from the petitioner.** **3. On the basis of the report of the Complaints Committee, the Director of Health Services issued Ext.P5 letter to the Secretary to Government requesting to transfer the petitioner to General Hospital, Thiruvananthapuram as Consultant in Respiratory Medicine. Thereafter as there was a request from another Consultant from TB Hospital for a posting there, petitioner was posted at TB Hospital as per Ext.P6 order dated 16.04.2013.** **WP(C).No. 31132 of 2015** **4** **4. Thereafter on 01.06.2015 petitioner received a letter from the Superintendent of Chest Hospital requesting him to report for an enquiry scheduled to be held on 04.06.2015 in connection with a complaint of the 1[st ] respondent submitted on 25.05.2015.** **5. Ext.P8 charge sheet was issued to the petitioner thereafter, in which various allegations were raised with respect to the harassment alleged to have been meted out by the 1[st] respondent, physically as well as mentally. Petitioner thereupon submitted Ext.P9 reply dated 21.09.2015. The enquiry was again fixed on 09.10.2015 stating that his reply was not satisfactory.** **6. The petitioner has filed this writ petition at this stage mainly on the ground that under Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 a complaint shall be given within a period of three months from the** **WP(C).No. 31132 of 2015** **5** **date of the incident. According to the petitioner, the proceedings Exts.P7 and P8 are initiated on the basis of a complaint submitted by the 1[st] respondent in the year 2015 whereas the incident relating to the complaint occurred in February, 2013. It is also pointed out that at the time when the incident happened, the Act was not in force as it came into force only on 09.12.2013 and therefore the petitioner cannot be proceeded against under the provisions of the Act, 2013.** **7. The 1[st] respondent as well as the 4[th] respondent have filed separate counter affidavits. According to the 1[st] respondent, she had filed an appeal as against the enquiry report submitted by the Complaints Committee. It is stated that the Committee was not constituted in accordance with the guidelines issued by the Apex Court in** _**Visakha and Others v. State of Rajastan**_ **: 1997 (6) SCC 241 and she has produced Ext.R1(a) order dated 28.03.2015,** **WP(C).No. 31132 of 2015** **6** **by which the Director, Health in-charge ordered that the report of the Committee on the complaint of the 1[st] respondent submitted in the year 2014 was not in accordance with law and therefore it was cancelled. It was ordered that a fresh Committee can be constituted in accordance with law to consider the complaint. Thereafter Ext.R1(b) letter was issued by the Director of Health Service to Superintendent referring to the appeal submitted by the 1[st] respondent on 25.05.2015 informing that a fresh Anti Sexual Harassment Committee can be constituted in accordance with rules with a female member as Head of the Committee and that 50% of the members shall be female including a N.G.O. The 1[st] respondent had stated that the committee constituted based on her appeal dated 25.05.2015 had met on 04.06.2015, in which it was found that the 1[st] respondent was harassed by the petitioner. It was also found that several criminal cases were pending** **WP(C).No. 31132 of 2015** **7** **between the 1[st] respondent and the petitioner.** **8. The 4[th] respondent has filed a counter affidavit stating that the originally constituted Committee was not in accordance with the guidelines of the Apex Court and therefore a fresh Committee was constituted in accordance with rules.** **9. The contention of the learned counsel for the petitioner that fresh proceedings cannot be initiated, once the petitioner was already transferred on the basis of the complaint of the 1[st] respondent and that too under the provisions of the Act, 2013, cannot be accepted because the enquiry which was held originally was not in accordance with the guidelines. The Apex Court had issued the guidelines seeing that there are no rules which govern the enquiry to be conducted in cases of Sexual Harassment of Women at Workplace. Though subsequent to that enquiry the petitioner was transferred, it is seen that the** **WP(C).No. 31132 of 2015** **8** **said transfer was to a nearby hospital and it was not stated whether that transfer was on the basis of the enquiry conducted. The limitation prescribed in Section 9 of the Act would not apply in a case where the proceedings were already initiated on the basis of a complaint and the subsequent proceedings are issued, seeing that the earlier enquiry was not in accordance with rules. However the contention of the petitioner that he did not receive the copy of the appeal requires consideration.** **10. At any rate there was no N.G.O in the first Committee constituted to hear the complaint submitted by the 1[st] respondent against the petitioner. Even assuming that petitioner was given notice that would not have been served any purpose though it was necessary to serve a copy of the appeal to the petitioner and to hear his version on the same.** **In the above circumstances, I do not find any reason to interfere with the** **WP(C).No. 31132 of 2015** **9** **proceedings Exts.P7 or P8. The petitioner had already submitted his explanation and the Committee would be free to proceed with the same, in accordance with law.** **Accordingly, this writ petition is** ## **dismissed.** **Sd/-** **P.V.ASHA, JUDGE.** **ww** **WP(C).No. 31132 of 2015** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SAID COMPLAINT GIVEN BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT DATED 19-2-2013.** **EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 23-2-2013.** **EXHIBIT P3 TRUE COPY OF THE STATEMENT FILED BY THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE REPORT DATED 11-3-2013 OF THE ENQUIRY COMMITTEE.** **EXHIBIT P5 TRUE COPY OF THE LETTER SENT BY 3RD RESPONDENT TO THE 4TH RESPONDENT DATED 153-2013. EXHIBIT P6 TRUE COPY OF THE ORDER DT.16-4-2013. EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 1-6-2015. EXHIBIT P8 TRUE COPY OF THE CHARGE SHEET DATED 16-92015. EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 21-9-2015. EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 28-9-2015. RESPONDENT'S/S EXHIBITS: EXHIBIT R1(A) COPY OF THE ORDER DATED 28-3-2015 PASSED BY THE 3RD RESPONDENT. EXHIBIT R1(B) COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT R1(C) COPY OF THE MEMO OF CHARGES. EXHIBIT R1(D) COPY OF FIR IN CRIME NO.332/2013 OF MEDICAL COLLEGE POLICE STATION. EXHIBIT R1(E) COPY OF FIR IN CRIME NO.234/2013 OF MUSEUM POLICE STATION.** **WP(C).No. 31132 of 2015** **11** **EXHIBIT R1(F) COPY OF THE ORDER IN CMP NO.1805/2013 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM DATED 26-4-2013. EXHIBIT R1(G) COPY OF THE REPORT DATED 13-5-2013 SUBMITTED BY MUSEUM POLICE STATION. EXHIBIT R4(A) A TRUE COPY OF THE LETTER NO. EC427524/13/DHS DATED 11.06.2015. EXHIBIT R4(B) TRUE COPY OF THE LETTER NO.E1847/2012/CDHP DATED 13.03.2013.**