Vinukumar S. v. Kerala State Electricity Board

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944** ## **WP(C) NO. 28161 OF 2022** ## **PETITIONER:** VINUKUMAR S., AGED 51 YEARS S/O SREEKANTAN NAIR, SOWPARNIKA, KUNNIYODU, KAKKAVILA P.O., THIRUVANANTHAPURAM - 695506. NOW WORKING AS ASSISTANT ENGINEER, ELECTRICAL SECTION, UCHAKKADA, NEYYATTINKARA DIVISION, K.S.E.B. LTD. BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH ## **RESPONDENTS:** 1 KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN CUM MANAGING DIRECTOR, REGISTERED OFFICE: VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004. 2 CHAIRMAN CUM MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD LTD., REGISTERED OFFICE: VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004. 3 CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004. BY ADV SRI.K.S.ANIL, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28161 OF 2022 2 ## **JUDGMENT** Dated this the 5[th] day of December, 2022 This writ petition is filed seeking the following reliefs:- i. To issue a writ of certiorari or any other appropriate writ order or direction calling upon the records pertaining to Exhibits P1, P2, P6 and P8 and quash the same. ii. To issue a writ of mandamus or any other appropriate writ order or direction to the respondents to re-work his pay scale by extending the benefit of one increment which is cumulatively barred by Exhibits P6 and P8 and to pay the arrears of salary in this regard forthwith to petitioner. 2. Heard the learned counsel for the petitioner and the learned Standing counsel appearing for the respondents. 3. It is submitted by the learned counsel for the petitioner that the petitioner is employed as Shift Operator in the Kerala State Electricity Board. While so, on complaint submitted by certain women employees, the Internal Complaints Committee of the respondent conducted an enquiry against the petitioner as well as some other employees and Ext.P1 report was submitted. WP(C) NO. 28161 OF 2022 3 4. It is submitted by the learned counsel for the petitioner that the finding in Ext.P1 report as against the petitioner was only to the effect that he had behaved inappropriately towards lady employees. The recommendation by the Committee was specifically to transfer the petitioner out from the station where he was working as also to issue strict warning to him not to repeat such untoward behavior in other places, where he works. It is submitted that there were findings and recommendations in respect of other employees as well. Thereafter, the Committee also issued a recommendation to the employer to see that the proper arrangements are made to see that lady officers are able to work without any apprehension or fear, by taking appropriate steps including affixing of surveillance cameras. 5. The learned counsel for the petitioner submits that the recommendation of the Committee was specifically only to transfer out the petitioner and to issue a warning to him. However, treating the said report as a finding that the petitioner was guilty of sexual harassment, Ext.P2 memo of charges was WP(C) NO. 28161 OF 2022 4 issued to the petitioner and after considering his objections to the same, Ext.P4 show cause notice was issued and Ext.P6 order imposing punishment of barring of one increment without cumulative effect is also imposed on the petitioner. Though, the petitioner submitted Ext.P7 appeal before the Chairman and Managing Director, Ext.P8 order was passed upholding the punishment. 6. The learned counsel for the petitioner submits that in cases of allegations of sexual harassment in the work place, the authority to conduct the enquiry is admittedly the Internal Complaints Committee. The Committee has to conduct an inquiry into the complaint of sexual harassment as provided in Section 11 of the Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act, 2013 [for short, Act, 2013]. Once the enquiry as provided in Section 11 is complete, an inquiry report has to be submitted as provided in Section 13 of the Act, 2013. Section 13 of the Act reads as follows:- _13. Inquiry report - (1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer_ WP(C) NO. 28161 OF 2022 5 _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:_ _Provided 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._ WP(C) NO. 28161 OF 2022 6 7. It is a specific contention of the learned counsel for the petitioner that though the inquiry report of the Internal Complaints Committee can be treated as an enquiry report under the provisions of the Service Rules, the respondent cannot go against specific recommendations and inflict a larger punishment. The learned counsel relies on decisions of the Apex Court in _**Medha Kotwal Lele and others v. Union of India and others [2013(1)SCC 312]**_ and later decisions of the Apex court in support of the proposition that the inquiry under Sections 11 and 12 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a full enquiry which has to be given due credence, while taking appropriate follow up steps in accordance with law. 8. The respondents 1 to 3 has placed a counter affidavit on record. It is contended that by Ext.P1 report, the Internal Complaints Committee had submitted the report before the employer recommending the transfer of the petitioner from the 110 KV Sub Station Mattannur and recommending strict warning not to repeat such misconduct in future in other offices as well. WP(C) NO. 28161 OF 2022 7 It is contended that going by the definition of sexual harassment and the provisions of Sections 3(2) of the Act the allegations made by the complainant, which have been proved in the Section 11 inquiry amounts to sexual harassment as provided in the Act. It is submitted that the behavior which would amount to sexual harassment having been proved in the inquiry conducted by the Internal Complaints Committee, the employer, to whom the Committee submitted its report, was duty bound to treat the sexual harassment as a misconduct and to take further action on the same. 9. The learned Counsel would also rely on the decision of the Apex Court in _**Seema Lepcha v. State of Sikkim and Others [2013 (11) SCC 641]**_ to contend that where the Internal Complaints Committee has already conducted an inquiry, the said inquiry report is to be treated as a report generated after conduct of an inquiry under the provisions of the rules governing disciplinary action against the employees of the specific institution. After having considered the contentions advanced on either WP(C) NO. 28161 OF 2022 8 side, I notice that the Internal Complaints Committee is given the power Under Section 13 not only to consider the complaints against the employees but also to make recommendations with regard to the action to be taken against him. In the instant case, the Internal Complaints Committee found that the allegations against the petitioner are true, at least, in part. However, the Internal Complaints Committee recommended transfer of the petitioner and also issuance of strict warning against him not to repeat his conduct in future in any place where he is posted. Going by the provisions of Section 13, if the recommendation of the Committee is to take action for sexual harassment as a misconduct, then the power to take such action and to decide on the punishment to be imposed would definitely be with the disciplinary authority, who can proceed on the basis of the report of inquiry of the Internal Complaints Committee. However, in the instant case, the Internal Complaints Committee, which is given the power to recommend the action to be taken against the erring employee, has specifically recommended a transfer out as also a strict warning. The WP(C) NO. 28161 OF 2022 9 contention of the petitioner that the conduct of independent proceedings against the petitioner was not warranted appears to be sustainable in the light of the specific provisions and the language of Section 13. While it is perfectly true that a further enquiry in accordance with provisions of the Classification, Control and Appeal Rules or the applicable rules may not be called for, once the Internal Complaints Committee has conducted a full inquiry, the further contention that the recommendation of the Committee is not a final one and that further proceedings can be taken by the employer does not appear to be borne out in the light of the specific provisions contained in Section 13. Unlike an Enquiry Officer or authority under the Classification, Control and Appeal Rules, the Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 appears to have wider powers including recommendation of the nature of action to be taken against the petitioner. 9. In the above facts, I am of the opinion that since there is no challenge as against Ext.P1 by the complainant or in WP(C) NO. 28161 OF 2022 10 any other manner and since Ext.P1 inquiry report has become final, the action to be taken against the petitioner in terms of the service rules could only be for infliction of the punishment of awarding of strict censure/warning. In the above view of the matter, this writ petition is disposed of with the following directions:- The imposition of the penalty of bar of one increment with cumulative effect against the petitioner, on the basis of Ext.P1 shall stands set aside. However, Ext.P1 against which the petitioner could not raise any sustainable grounds is affirmed, the petitioner shall be inflicted with the penalty of strict censure/warning on the basis of Ext.P1. Sd/- ## **ANU SIVARAMAN** **JUDGE** ska WP(C) NO. 28161 OF 2022 11 ## **APPENDIX OF WP(C) 28161/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REPORT OF INTERNAL COMPLAINTS COMMITTEE, KANNUR DATED 27.4.2021. Exhibit P2 TRUE COPY OF THE MEMO OF CHARGES DATED 14.6.2021 SERVED ON PETITIONER. Exhibit P3 TRUE COPY OF THE EXPLANATION TO THE MEMO OF CHARGES DATED 14.7.2021. Exhibit P4 TRUE COPY OF THE NOTICE DATED 22.11.2021 BY 3RD RESPONDENT TO PETITIONER. Exhibit P5 TRUE COPY OF THE EXPLANATION WHICH IS NIL DATED BY PETITIONER TO 3RD RESPONDENT. Exhibit P6 TRUE COPY OF THE ORDER DATED 13.1.2022 BY WHICH PETITIONER IS IMPOSED WITH PENALTY BY 3RD RESPONDENT. Exhibit P7 TRUE COPY OF THE APPEAL DATED 11.2.2022 BEFORE THE 2ND RESPONDENT. Exhibit P8 TRUE COPY OF THE ORDER DATED 17.3.2022 BY 2ND RESPONDENT REJECTING THE APPEAL OF PETITIONER.