Sudeep.K.T v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944** **WP(C) NO. 2468 OF 2021** ## **PETITIONER:** SUDEEP.K.T AGED 44 YEARS S/O C.V.AMBU MASTER, PRATHEEKSHA, ONAKKUNNU, KARIVELLUR P.O.KANNUR-670 521, WORKING HOD (DEPARTMENT OF ENGINEERING AND MAINTENANCE) (UNDER SUSPENSION) MALABAR CANCER CENTRE P.O.MOOZHIKKARA, THALASSERY KANNUR-670 103. BY ADVS. K.P.PRADEEP SMT.T.THASMI ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY ITS HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUANANTHAPURAM-695 001. 2 MALABAR CANCER CENTRE, P.O. MOOZHIKKARA, THALASSERY, KANNUR-670 103, REPRESENTED BY ITS THE DIRECTOR. 3 INTERNAL COMPLAINT COMMITTEE, THE SEXUAL HARASSMENT OF WOMEN AT WORK PLACE, COMMITTEE, MALABAR CANCER CENTRE, THALASSERY, KANNUR670 103, REPRESENTED BY ITS THE CHAIRPERSON 4 REENA P.C ELECTRICAL SUPERVISOR, MALABAR CANCER CENTRE, P.O.MOOZHIKKARA, THALASSERY, KANNUR-670 103. BY ADVS. SHRI.P.SREEKUMAR, SC, MALABAR CANCER CENTRE TITUS MANI BINNY THOMAS P.A.JACOB BY SRI.V..K.SUNIL-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.2468 OF 2021 2 ## **JUDGMENT** ## **Dated this the 23[rd] day of November, 2022** This writ petition is filed challenging Ext.P4 report issued by the 3[rd] respondent and seeking interdiction of all further actions therein. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents 2 and 3 as well as the learned counsel for the 4[th] respondent. 3. It is submitted by the learned counsel for the petitioner that the petitioner is an Engineer holding the post of Head of the Department of Engineering & Maintenance in the 2[nd] respondent. It is submitted that on 18.01.2019, the 4[th] respondent who is the Supervisor (Electrical) in the petitioner’s department submitted Exhibit P1 complaint against the petitioner. It was alleged that on 23.10.2019, the 4[th] respondent had been molested by the petitioner. It is submitted that the W.P.(C)No.2468 OF 2021 3 petitioner had submitted Exhibit P3 detailed reply stating that there was no inspection of the medical gas work in the newly constructed Pediatric Block on 23.10.2019, as mentioned in the complaint and that the petitioner was attending the Administrative Committee meeting at the relevant time. In the hearing conducted by the Internal Complaints Committee, the 4[th] respondent had stated that the examination of the medical gas work had been completed and that she did not remember the exact date on which the alleged incident took place. It is contended by the learned counsel for the petitioner that the allegations made by the 4[th] respondent could not be proved before the 3[rd] respondent Committee. However, without such allegations being proved, a report has been submitted recommending disciplinary action against the petitioner which is under challenge in W.P.(C)No.2468 OF 2021 4 ## the writ petition. 4. The learned counsel for the petitioner would contend that since the specific allegation of sexual harassment that had been raised by the 4[th] respondent against the petitioner could not be proved, the Committee had no power to issue any recommendations, especially the recommendation directing the conduct of a disciplinary enquiry against the petitioner. Learned counsel would also place reliance on a decision of this Court in **K.P.Anil Rajagopal v. State of Kerala and Ors.** [2017 (5) KHC 217] to contend that where no sexual harassment complaint has been found by the Committee, there can be no recommendation by the Committee to take any action against the alleged offender. 5. A statement has been filed by the 2[nd] respondent, specifically stating that a reading of W.P.(C)No.2468 OF 2021 5 Exhibit P4 would show that the allegations of sexual harassment and creating a hostile atmosphere in the workplace had been specifically found by the Committee and it was on the basis of the said finding that the recommendations had been issued by the Committee. It is submitted that only the specific allegation raised about the molestation which occurred on 23.10.2019 could not be proved in the enquiry and that in the light of the other findings, the action of the 3[rd] respondent in having recommended action against the petitioner is perfectly justified. It is further contended that the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 contemplate disciplinary action in terms of the Rules and that such disciplinary action will be taken only after issuance of due notices to the petitioner and the W.P.(C)No.2468 OF 2021 6 petitioner will get a further opportunity to explain his conduct and to submit objections against the proposed action. 6. A counter affidavit has been placed on record by the 4[th] respondent as well. It is specifically stated that a reading of Exhibit P1 would show that the 4[th] respondent had raised specific allegations not only of an incident which occurred on 23.10.2019, but also of the molestation and bad behavior on the part of the petitioner from the very date of his joining the institution. It is submitted that 4 issues had been framed by the ICC as is evident from Exhibit P4 report as well and that 3 of such issues had been found against the petitioner. The ICC had found that there was behavior which amounted to sexual harassment in the workplace on the part of the petitioner and that the 4[th] respondent was unable W.P.(C)No.2468 OF 2021 7 to work peacefully in the office on account of the behaviour and attitude of the petitioner. It is submitted that it was on those findings that the recommendations as per Exhibit P4 are issued and that there is absolutely nothing illegal in the said report. It is further contended that an appeal is provided against such a report under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and that the contentions, if any, on merits cannot be considered by this Court under Article 226 of the Constitution of India. It is further submitted that the reliance placed on the decision of this Court in **K.P.Anil Rajagopal (supra)** is misconceived since the instant case is one where the allegations of sexual harassment raised by the 4[th] respondent has been specifically found to be true by the 3[rd] respondent after conduct of the W.P.(C)No.2468 OF 2021 8 enquiry. 7. Having considered the contentions advanced in detail, Exhibit P1 complaint submitted by the 4[th] respondent, refers not only to an incident which occurred on 23.10.2019, but specifically refers to the attitude and behaviour of the petitioner from 2010 onwards. The incident which occurred on 23.10.2019, is specifically referred to an as an instance of the behaviour of the petitioner towards the 4[th] respondent. Allegations have also been raised with regard the general attitude of the petitioner as against other employees as well. It is submitted that the petitioner had been put on notice and Exhibit P3 detailed reply had been submitted by the petitioner. The petitioner had raised specific contentions with regard to the allegations raised by the 4[th] respondent. The matter was considered by W.P.(C)No.2468 OF 2021 9 the 3[rd] respondent quite in extenso and all the allegations raised on both sides were considered. Evidence was taken by the Committee and the statements of the petitioner, the 4[th] respondent as well as other persons working in the Department and eye witnesses to the various instances of molestation alleged by the 4[th] respondent were recorded. Thereafter, 4 issues were raised, out of which one was with regard to the allegation of the incident which occurred on 23.10.2019. Thereafter, findings were rendered in issues raised and three of such issues were found against the petitioner. It is only with regard to the incident which occurred on 23.10.2019 that the Committee found that the 4[th] respondent was unable to prove the specific instance of molestation which occurred on the said date. 3 of the 4 issues raised were found against the petitioner that the employer was W.P.(C)No.2468 OF 2021 10 required to take disciplinary action against the petitioner in Exhibit P4. Provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, defines sexual harassment as follows: “ _S.2(n)'sexual harassment' includes any one or more of the following unwelcome acts or behaviour (whether directly or 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 nonverbal conduct of sexual nature.”_ In the above factual situation, I am of the opinion that since the complaint raised by the 4[th] respondent had been specifically considered by the Committee with notice to all concerned and findings had been rendered as against the petitioner, the contention that there was no finding of sexual harassment and therefore, no recommendation can be issued by the Committee, W.P.(C)No.2468 OF 2021 11 cannot be accepted. The decision of this Court in **K.P.Anil Rajagopal (supra)** was rendered in a case where the allegation of sexual harassment was found not proved, where the complaint raised by the 4[th] respondent contains specific allegations of sexual harassment and findings were returned that the petitioner had been guilty of such harassment against the 4[th] respondent and that he had created a hostile working atmosphere where the 4[th] respondent could not work in peace. In the above view of the matter, I am of the opinion that the challenge raised against Exhibit P4 has been failed and the writ petition is, accordingly, dismissed, leaving open the contentions on merits of the petitioner to be agitated in appropriate proceedings. **Sd/ANU SIVARAMAN JUDGE** SSK/23/11 W.P.(C)No.2468 OF 2021 12 ## **APPENDIX** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 18.1.2019 SUBMITTED BY THE 4TH RESPONDENT AGAINST THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P2 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 23.11.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P3 TRUE COPY OF THE REPLY DATED 7.3.2020 GIVEN BY THE PETITIONER WITH RESPECT TO EXT P1 COMPLAINT BEFORE THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF THE REPORT BY THE INTERNAL COMPLAINTS COMMITTEE DATED 6/11/2020 SSK //TRUE COPY// PA TO JUDGE