KERALA STATE ELECTRICITY BOARD LIMITED v. VINUKUMAR S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945** **WA NO. 1145 OF 2023** **AGAINST THE ORDER/JUDGMENT WP(C) 28161/2022 OF HIGH COURT OF** ## **KERALA** ## **APPELLANTS/RESPONDNET NOS.1 TO 3 IN WP(C):** 1 KERALA STATE ELECTRICITY BOARD LIMITED, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN - 695004 2 CHAIRMAN & MANAGING DIRECTOR KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695004 3 CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN - 695004 BY ADV ANTONY MUKKATH ## **RESPONDENT/PETITIONER IN WP(C):** VINUKUMAR S., AGED 51 YEARS S/O SREEKANTHAN NAIR, SOWPARNIKA, KUNNIYODU, KAKKAVILLA P.O, THIRUVANANTHAPURAM, 695506 NOW WORKING AS ASSISTANT ENGINEER, ELECTRICAL SECTION, UCHAKKADA, NEYYATINKARA DIVISION, KERALA STATE ELECTRICITY BOARD LTD., BY ADV R.T.PRADEEP THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WA NO. 1145 OF 2023** **2** ## JUDGMENT ## Amit Rawal, J. 1. The present writ appeal is directed against the judgment of the Single Bench dated 5.12.2022 rendered in W.P.(C) No.28161 of 2022 preferred by the respondent whereby the imposition of penalty of bar of one increment has been set aside by upholding the enquiry of internal committee, Ext.P1. 2. Respondent, petitioner while working as a shift operator was charged with an allegation by a fellow movement of inappropriate conduct. On the basis of the said allegation, an internal complaints committee was constituted under the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Act, 2013) (hereinafter called Act of 2013). The internal committee on the basis of the allegations recorded the statement of all the concerned, submitted a report dated 27.4.2021, Ext.P1 and recommended to the disciplinary authority for transfer and strict warning. On the basis of the committee memo of charges dated 14.6.2021, Ext.P2 were served which were duly replied vide reply dated 14.7.2021, Ext.P3. Without holding any further enquiry, respondent, petitioner was served with a notice dated 22.11.2021, Ext.P4 as to why the **WA NO. 1145 OF 2023** **3** punishment of penalty of barring one increment is not imposed upon him. An explanation was given but it entailed into dismissal and appeal preferred has also been dismissed. By relying upon the judgment rendered by the Supreme Court in Seema Lepcha v. State of Sikkim and Others (2013 KHC 3872 ) followed by the judgment of this Court in Sibu L.S v. Air India Ltd., New Delhi and Others (2016 (2) KHC 569 ), writ petition has been allowed. 3. Learned counsel appearing on behalf of the appellant respondent in the writ court- Kerala State Electricity Board raised the following submission: There is no bar in the service rules which are applicable to the employees prohibiting disciplinary authority to impose punishment than the one recommended by the internal committee. 4. Learned Single Bench despite holding that the enquiry by the internal committee has more force than the enquiry to be conducted by the disciplinary authority including the recommendation of the nature of action to be taken against the petitioner, has quashed the penalty. There was no need of holding a denovo enquiry against the delinquent employee as it would have substituted the opinion and the statement of the witnesses recorded by the internal committee. The recommendations are only to be considered at par with the preliminary enquiry but not final enquiry **WA NO. 1145 OF 2023** **4** as per the ratio decidendi culled out in Sibu L.S (supra). Recommendations of the internal committee cannot be mutatis mutandis applicable on the disciplinary authority. In other words, the disciplinary authority is not denuded from taking action in accordance with the service rules, ie., the disciplinary and punishment rules. 5. On the contrary, learned counsel appearing on behalf of the writ petitioner submitted that no doubt the disciplinary rules do not prevent the disciplinary authority to hold an enquiry over and above what the internal committee had recommended but it has to be in compliance with the principles of natural justice by examining the witnesses but cannot be substituted by serving the charge sheet. This is precisely what the learned Single Bench has observed. There is no error or illegality in the order of Single Bench and urged this Court for dismissal of the writ appeal. 6. We have heard the learned counsel for the parties and appraised the paper book. Concededly, the report dated 27.4.2021, Ext.P1 of the internal committee constituted under the provisions of the Act reveals the recommendation of transfer and strict warning. Section 13 of the 2013 Act defines the enquiry and report taken thereof, the same reads as under: **(1)** On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may **WA NO. 1145 OF 2023** **5** be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties. (2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter. (3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be— (i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed; (ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15: Provide that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman: Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or as, the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer. (4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him. 7. On perusal of the aforementioned provisions, particularly, sub Sections, it is evident that where the Internal **WA NO. 1145 OF 2023** **6** Committee arrives at a conclusion that the allegations against the delinquent were proved, it shall exercise the power of recommendation to the employer for taking action for sexual harassment as a misconduct in accordance with the provisions of the service rules, to deduct or notwithstanding anything in the service rules from the salary or wages such sum as it may consider appropriate or to be paid to the aggrieved women or legal heirs with the two provisos that in case the employer is unable to make such deduction from the salary due to the absence of the delinquent may direct the respondent to pay such amount to the aggrieved women or if he failed to do so, proceedings for recovery as per the arrears of land revenue could be initiated. Period prescribed for taking action upon the recommendation is 60 days. In the instant case, recommendation, Ext.P1 was only with regard to transfer and imposition of punishment. However as per the allegation of charge sheet and the show cause notice on receipt of the explanation from the respondent reveals that the disciplinary authority though accepted the recommendation of the internal committee but brought a case of misconduct by imposing higher punishment than the one recommended. The misconduct if exemplified, would entail into the acts provided under Section 2n of the Act. 2n: (n) “sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or **WA NO. 1145 OF 2023** **7** by implication) namely:— (i) physical contact and advances; or (ii) a demand or request for sexual favours; or (iii) making sexually coloured remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature; 8. On perusal of clause 2n of the Act would also include the conduct for which the respondent was charged with. Whether such conduct would entail into an imposition of penalty is the core question to be decided in the present appeal. Learned Single Judge by relying upon the ratio decidendi in Seema Lepcha (supra) found that enquiry of the internal committee is more probable than the one to be followed by the disciplinary authority under the service rules, same has to be accepted as it is. Since there was no recommendation for imposition of penalty of withholding of increment with cumulative effect, department erred in imposing such punishment though the other recommendations were duly followed. Single Bench of this Court in Sibu L.S (supra) considering all the provisions of the Act found that the recommendation of the internal committee would only be treated as a preliminary court. We have no doubt about the ratio but the fact remains if at all, the disciplinary authority had to actually take an action of misconduct were required to follow the principle of natural justice by holding an independent enquiry ie., over and above above what the internal committee had recommended. Since that procedure has not been **WA NO. 1145 OF 2023** **8** followed, the findings of the Single Bench in quashing the findings in our view is perfectly legal, justified and do not call for any interference. Writ appeal is accordingly, dismissed. SD/- AMIT RAWAL JUDGE sab SD/C.S. SUDHA JUDGE