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2003 DIGILAW 592 (CAL)

ALBERT DAVIT LIMITED v. ANURADHA CHOUDHURY

2003-11-27

ASIT KUMAR BISI, SAMARESH BANERJEE

body2003
ASIT KUMAR BISI, J. ( 1 ) THE instant appeal preferred by the appellant is directed against Order No. 16 dated september 9, 2003 by Shri. P. L. Dutta learned judge 11th Bench, City Civil Court, Calcutta in Title Suit No. 225 of 2003. By the order impugned the learned Judge allowed the application for temporary injunction under order No. 39 Rules 1 and 2 of the Code of Civil procedure filed by the plaintiff/respondent Ms. Anuradha Choudhury and restrained the defendants from proceeding with the departmental proceeding initiated by the defendants against the plaintiff by a letter dated november 9, 2002 issued by defendant No. 2 till disposal of the suit. ( 2 ) THE factual matrix leading to the instant appeal may briefly be stated thus. As per case of the plaintiff she has been working for gain in Albert Davit Ltd. , at 15, Chittaranjan avenue, Calcutta since September, 1990 and is holding the post of Junior Executive, Sales promotion Department of the said company. Defendant No. 3 has been engaged as Enquiry officer by defendant No. 2 to conduct a domestic Enquiry against the plaintiff on the false allegation of misconduct and the purported domestic enquiry is being conducted by defendant No. 3. The plaintiff joined the said company in the month of September, 1990, and rendered her service to full satisfaction of the authority throughout the tenure without any blemish. The plaintiff is a well educated lady having good academic background. Defendant no. 1 joined the said company as a Group product Manager in the month of September, 2001 and was provided with the sitting accommodation with the plaintiff in the same a. C. Chamber wherein the plaintiff has been sitting since 1997. Within a very short span of time the plaintiff felt that defendant No. 1 was frantically trying to develop personal and close relation with the plaintiff and taking advantage of loneliness inside the chamber defendant no. 1 intended to insult and outrage the modesty of the plaintiff and started using slang language by exhibiting gestures which badly hampered the privacy and security of the plaintiff. The language being used by defendant No. 1 was provocative and vulgar as a result of which the working environment in the chamber became unsafe. The plaintiff tried to restrain defendant no. The language being used by defendant No. 1 was provocative and vulgar as a result of which the working environment in the chamber became unsafe. The plaintiff tried to restrain defendant no. 1 by requesting the latter to amend his nature and not to use any vulgar language. In spite of that defendant No. 1 provoked the plaintiff with unwelcome sexual demands by words and gesture. The plaintiff was compelled to stay in the office even after 5 p. m. when all other employees of the company left the office and taking the said advantage defendant No. 1 extended his sexual advance which was refused by the plaintiff as a result of which defendant no. 1 became furious and threatened to oust the plaintiff from the A. C. Chamber. On december 18, 2001, the plaintiff was ousted from the chamber with the aid and assistance of defendant No. 2. Defendant No. 2 all along supported defendant No. 1 and started discussing his sexual life with some other ladies and the plaintiff was compelled to participate 5 in such obnoxious discussion. Defendant No. 2 also expressed his desire to the plaintiff to accompany him after office hours and to spend and drink with him for his mental pleasure. Being annoyed the plaintiff brought the matter to the notice of Mr. A. K. Kothari, Chairman of the Company by the letter dated June 21, 2002. Between August 8 and August 14, 2002 the Company had a meeting at Taj Bengal, calcutta. Defendant No. 1 made continuous 5 efforts to allure the plaintiff to satisfy his ill desire. The plaintiff had to attend the meeting in a conference hall at the behest of defendant no. 1. On August 12, 2002 the plaintiff requested defendant No. 1 to instruct the attendants to switch off the A. C. machine, but in reply defendant No. 1 said: "come close to me, you will start feeling hot. " On August 13, 2002 defendant No. 1 abused the plaintiff in presence of the senior Officers of the Company 5 for arriving at about 9 a. m. and not reaching at 8. 30 a. m. Since the highest authority of the company did not extend his help and co-operation, the plaintiff lodged a formal diary in Bowbazar P. S. on September 12, 2002. On September 27, 2002 a written complaint was filed in Bowbazar P. S. against defendant Nos. 30 a. m. Since the highest authority of the company did not extend his help and co-operation, the plaintiff lodged a formal diary in Bowbazar P. S. on September 12, 2002. On September 27, 2002 a written complaint was filed in Bowbazar P. S. against defendant Nos. 1 and 2. On receipt of the written complaint, the Bowbazar Police Station initiated a criminal case being Bowbazar P. S. 5 Case No. 335 dated October 30, 2002 under section 509 of the Indian Penal Code. In the meantime by a letter dated November 9, 2002 defendant No. 2 informed the plaintiff that defendant No. 3 has been engaged as Enquiry 9 Officer to conduct the Domestic enquiry and the date of enquiry was fixed on November 28, 2002. On November 26, 2002 defendant No. 2 wrote another letter to the plaintiff informing the latter that unconnected issue regarding modesty of a woman would not form part of the chargesheet. In reply to the said letter the plaintiff by a letter dated December 4, 2002 made it clear that if the background of the incident was not allowed to be brought on record the purport and object of the domestic enquiry would be frustrated and justice would be denied. It is not possible for the plaintiff to attend the departmental proceeding and disclose her defence in the departmental proceeding prior to hearing of the criminal proceeding and accordingly the plaintiff has prayed for an order of injunction restraining the defendants from deferring the disciplinary proceeding/domestic enquiry initiated against her till disposal of the suit. ( 3 ) IN the written objective defendant No. 1 has averred inter alia that the petition for temporary injunction is misconceived, not maintainable and is bad in law and it has been filed in gross suppression and misrepresentation of material facts. Further case of defendant No. 1 is that the allegations of gender/sexual harassment had been made, against him for the first time after his complaint dated August 17, 2002, against the plaintiff and as such the allegations are patently by way of after thought and made for the purpose of harming and damaging his career with the intention of wreaking vengeance against him for having complained against the plaintiff. The domestic enquiry concerns insubordination and misbehaviour of the plaintiff during the project launch at Taj Bengal and the said domestic enquiry is totally unconnected with the alleged gender harassment and in such circumstances the domestic enquiry ought not to be interfered with by the Court. It is denied that the domestic enquiry has been initiated on the basis of any false allegation as alleged. The material, allegations contained in the petition for temporary injunction have been denied by defendant No. 1. ( 4 ) DEFENDANT No. 2 has also filed written objection to the application for temporary injunction filed by the plaintiff denying the material allegations raised by the plaintiff. ( 5 ) THE learned Trial Judge has considered the materials on record and come to the finding that the plaintiff initiated the criminal proceedings over sexual harassment by her employer and the employer in turn retaliated by initiating departmental enquiry against her without taking notice of her complaint against them. The learned Trial Judge is of the view that both the issues and facts relate to the self-same affairs and the interest of the plaintiff would be hampered unless the departmental proceeding is stayed. According to the learned trial Judge the plaintiff is able to establish the prima facie case and balance of convenience is in her favour and if the departmental proceeding is not stayed the plaintiff will suffer irreparable loss. Consequently the learned trial Judge has allowed the application under order 39, Rules 1 and 2 of the Code of Civil procedure filed by the plaintiff and restrained the defendants from proceeding with the departmental proceeding initiated by the defendants against the plaintiff by a letter dated november 9, 2002 issued by defendant No. 2 till disposal of the suit. Consequently the learned trial Judge has allowed the application under order 39, Rules 1 and 2 of the Code of Civil procedure filed by the plaintiff and restrained the defendants from proceeding with the departmental proceeding initiated by the defendants against the plaintiff by a letter dated november 9, 2002 issued by defendant No. 2 till disposal of the suit. ( 6 ) AGGRIEVED, the defendant company albert Davit Limited has preferred the instant appeal alleging inter alia that the learned Trial judge erred in law and in fact passed the order on erroneous assumption and in exercise of the jurisdiction vested in him, and the error of law is apparent on the face of the record, that the learned Trial Judge erred in law and in fact and passed the order impugned without due adequate consideration of the fact that the entire allegation of the plaintiff respondent with regard to her sexual harassment has been made only after the complaint dated August 17, 2002 was made against her that the Jearned Trial judge erred in law and in fact in not holding that the scope of the domestic enquiry was i confined only to the incident which occurred at taj Bengal on August 13, 2002, that the learned trial Judge passed the impugned order without due and adequate consideration of the appellant's letter dated August 30, 2002 to the plaintiff respondent by which the plaintiff respondent was informed that all persons who were eye witnesses to the incident of August 13, 2002 were being informed of the domestic enquiry concerning her, that the learned Trial judge ought to have held that the criminal proceeding initiated by the plaintiff-respondent had no connection with the scope of domestic enquiry against her and that the learned Trial judge erred in law and in fact in holding that the balance of convenience was in favour of the plaintiff-respondent. ( 7 ) THE sole point arising for decision in the instant appeal is whether or not the impugned order for temporary injunction passed by the learned Trial Judge is sustainable in the face of the materials on record. ( 8 ) MR. ( 7 ) THE sole point arising for decision in the instant appeal is whether or not the impugned order for temporary injunction passed by the learned Trial Judge is sustainable in the face of the materials on record. ( 8 ) MR. Saptangsu Bose, learned advocate for the appellant has contended that the departmental proceeding, initiated against the plaintiff-respondent relates to the misconduct and insubordination whereas the criminal proceeding initiated by the plaintiff-respondent has been started on the basis of the written complaint lodged by the plaintiff-respondent in bowbazar P. S. on the allegation of sexual harassment and humiliation and since the departmental proceeding and the criminal proceeding do not relate to the same set of facts, the departmental proceeding against the plaintiff-respondent can well be proceeded with irrespective of pendency of the criminal proceeding initiated on the basis of the written complaint was lodged by the plaintiff respondent with the police. Mr. Bose has further contended that the written complaint was lodged by the plaintiff-respondent with the police as counterblast after the departmental proceeding was started against her. He has cited Capt. M. Paul Anthony v. Bharat Gold mines Ltd. , reported in AIR 1999 SC 1416 : 1999 (3) SCC 679 : 1999-I-LLJ-1094 wherein the Supreme Court has held that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas and whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be such as enforcement of: discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. He has further cited Vinod Behari Dixit v. United Commercial Bank reported in 1979 Lab ic 1239 (Cal) wherein it has been held that the pendency of a criminal trial is not an absolute prohibition for proceeding with the domestic enquiry on the same charges and such proceeding cannot be considered to be bad if conducted during the pendency of such criminal trial. Relaying on the aforesaid decisions Mr. Bose has argued that pendency of a criminal trial cannot stand in the way of proceeding with the disciplinary proceeding against the plaintiff-respondent for her alleged insubordination and misconduct. Relaying on the aforesaid decisions Mr. Bose has argued that pendency of a criminal trial cannot stand in the way of proceeding with the disciplinary proceeding against the plaintiff-respondent for her alleged insubordination and misconduct. ( 9 ) IT is no doubt settled principle of law that both departmental enquiry and the criminal proceeding can proceed simultaneously and no inflexible guidelines can be laid down in the matter of stay of the departmental proceeding in a case where the criminal trial is pending. Each case is to be considered in its own factual backdrop and circumstances. Reference may be made in this context to Depot Manager, A. P. State Road Transport Corporation v. Mohd. Yousufmiya, reported in AIR 1997 SC 2232 : 1997 (2) SCC 699 : 1997-II-LLJ-902 the supreme Court observed as follows at p. 905 of LLJ:"7. . . . . . . . The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are copducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. . . . . " ( 10 ) THE plaintiff, as it appears, has instituted the suit against the defendants seeking reliefs:" (A) A decree of declaration that the domestic Enquiry is illegal inasmuch as the domestic Enquiry has been initiated by the defendant Nos. . . . . " ( 10 ) THE plaintiff, as it appears, has instituted the suit against the defendants seeking reliefs:" (A) A decree of declaration that the domestic Enquiry is illegal inasmuch as the domestic Enquiry has been initiated by the defendant Nos. 1 and 2 as a measure of retaliation after becoming unsuccessful in fulfilling their ill-desire of sexual harassment: (b) A decree of declaration that in the absence of specific enumeration of misconduct in Employees Conduct, discipline and Appeal Rules, no penalty can be imposed for misconduct by initiating domestic enquiry; (c) A decree of declaration that the defence of the plaintiff shall be disclosed before the 3 domestic enquiry which will affect the criminal Case being Bowbazar P. S. Case no. 335 dated October 30, 2002 under section 509 of Indian Penal Code pending before the learned Metropolitan Magistrate 3 of the 3rd Court, Bankshall Court, and the defendants Nos. 1 and 2 being accused in the Criminal Case shall be exonerated; (d) A decree that the subject-matter of the domestic enquiry initiated against the plaintiff by the letter dated November 9, 2002 is the outcome after outraging modesty of the plaintiff which is equal to the subject-matter of the Criminal Case being bowbazar P. S. , Case No. 335 dated october 30, 2002 under Section 509 of indian Penal Code pending before the learned Metropolitan Magistrate of the 3rd court at Bankshall Court; (e) A decree for permanent injunction restraining the defendant No. 3 to defer the disciplinary Proceeding/domestic Enquiry initiated against the plaintiff by a letter dated november 9, 2002 issued by the defendant no. 2, until disposal of the Criminal Case being Bowbazar P. S. Case No. 335 dated october 30, 2002 under Section 509 of indian Penal Code pending before the i learned Metropolitan Magistrate of the 3rd court at Bankshall Court; (f) Temporary injunction in the manner aforesaid: (g) Costs of the suit; (h) Any other relief or reliefs the plaintiff entitled to, both in law or in equity. " ( 11 ) MR. Aloke Roy the learned advocate i for the plaintiff-respondent has contended that the written complaint was lodged by the plaintiff-respondent in Bowbazar P. S. on september 12, 2002 and the notice of domestic enquiry was issued against the plaintiff respondent on November 9, 2002. " ( 11 ) MR. Aloke Roy the learned advocate i for the plaintiff-respondent has contended that the written complaint was lodged by the plaintiff-respondent in Bowbazar P. S. on september 12, 2002 and the notice of domestic enquiry was issued against the plaintiff respondent on November 9, 2002. He has drawn our attention to copy of the written complaint marked as Annexure 't' and the notice of domestic enquiry as Annexure 'z' to the list of dates submitted by him. It is quite evident therefrom that the written complaint was lodged by the plaintiff-respondent with the police on September 12, 2002 whereas notice of domestic enquiry was issued by the appellant company to the plaintiff-respondent on november 9, 2002. It amply reveals that the said notice of domestic enquiry was issued after lodging of the written complaint by the plaintiff respondent with the Police. So the contention raised by Mr. Bose for the appellant that the written complaint was lodged after initiation of the departmental proceeding against the plaintiff cannot at all be countenanced. ( 12 ) IN Delhi Cloth and General Mills Ltd. v. Kushal Bhan, reported in AIR 1960 SC 806 : 1960-I-LLJ-520, the Supreme Court has held as under at p. 521 of LLJ:"it is true that very often employers stay enquiries pending the decision of the criminal trial Courts and that is fair; but we cannot say mat principles or natural justice require that an employer must wait for the decision at least of the criminal trial Court before taking action against an employee. In shri Bimal Kanta Mukherjee v. Newsman 's printing Works, 1956-I-LLJ-453 (L. A. T. I.)this was the view taken by the Labour appellate Tribunal. We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced. . . . . . " ( 13 ) IN Tata Oils Mills Co. Ltd. v. Workmen, reported in AIR 1965 SC 155 : 1964-II-LLJ-113, the principles of law laid down by the Supreme Court in the Delhi Cloth. . . . . . " ( 13 ) IN Tata Oils Mills Co. Ltd. v. Workmen, reported in AIR 1965 SC 155 : 1964-II-LLJ-113, the principles of law laid down by the Supreme Court in the Delhi Cloth. and General Mills Ltd. , (supra) has been relied on and the Supreme Court has held that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal Court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. ( 14 ) IN Kusheshwar Dubey v. Bharat coking Coal Ltd. , reported in AIR 1988 SC 2118 : 1988 (4) SCC 319 : 1988-II-LLJ- 470, the Supreme Court has held at p. 473 of LLJ:"7. The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent-employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, strait-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. . . . . . . " ( 15 ) AS mentioned hereinabove, the notice of domestic enquiry was issued by the appellant company to the plaintiff-respondent after lodging of the written complaint by the plaintiff-respondent with the Police. True, in the instant case the criminal proceeding and the disciplinary proceeding were not initiated on the same set of facts. . . . . . . " ( 15 ) AS mentioned hereinabove, the notice of domestic enquiry was issued by the appellant company to the plaintiff-respondent after lodging of the written complaint by the plaintiff-respondent with the Police. True, in the instant case the criminal proceeding and the disciplinary proceeding were not initiated on the same set of facts. But it cannot be lost sight of the fact that as per the case of the plaintiff-respondent the disciplinary proceeding was initiated against her out of grudge or ill-motive because of lodging of the written complaint by her with the Police on the basis of which the criminal proceeding was started. Such grudge or ill-feeling, as contended by the plaintiff-respondent, is the motive for initiation of the departmental proceeding against her and as such we find i considerable force in the contention raised by mr. Roy for the plaintiff-respondent that unless the defendants are restrained by an order of temporary injunction from proceeding with the departmental enquiry till disposal of the suit where the disciplinary proceeding has been challenged by seeking declarations and permanent injunction restraining the defendants from proceeding with the departmental proceeding till disposal of the i criminal proceeding, the plaintiff will suffer ' irreparable loss and injury. ( 16 ) THERE is another vital aspect of the matter. Right to work with dignity, is a basic human right universally recognized. As held by the Supreme Court in Vishaka v. State of rajasthan, reported in AIR 1997 SC 3011 : 1997 (6) SCC 241 , gender equality includes protection from sexual harassment and right to work with dignity which is universally recognized basic human right and the common minimum requirement of this right has received global acceptance. So far as protection of the working women from sexual harassment is concerned the Supreme Court in the case of vshaka (supra) has held on page 249 at para 8 that the power of the Supreme Court under article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. The supreme Court has further held that governance of the Society by the rule of law mandates this requirement as a logical concomitant of the constitutional scheme. The supreme Court has further held that governance of the Society by the rule of law mandates this requirement as a logical concomitant of the constitutional scheme. The supreme Court has formulated the guidelines in the case of Vishaka (supra) and in terms of the said guidelines an appropriate complaint mechanism is required to be created in the employer's organisation for redress of the complaint made by the victim and such complaint mechanism should ensure time-bound treatment of complaints. In terms of direction of the Supreme Court the complaint committee is required to be formed by the employer to look into the complaints of sexual harassment of working women at workplace. Mr. Bose the learned Advocate for the appellant has fairly conceded that no such complaint committee has been formed by the appellant company nor any appropriate complaint mechanism has been created in the said company for redress of the complaint made by the victim of the alleged sexual harassment. ( 17 ) ANOTHER startling feature emerging from the materials on record is that in reply to the letter dated December 4, 2002 of the plaintiff-respondent the Executive Director of the appellant company informed the plaintiff-respondent by the letter dated december 16, 2002 that the allegation of gender harassment besides being baseless is unrelated to the enquiry and is totally uncalled for. The Xerox copy of the said letter dated december 4, 2002 of the plaintiff-respondent and Xerox copy of the letter dated December 16, 2002 sent by the Executive Director of the appellant company to the plaintiff-respondent have been, marked as Annexures Z-4 and Z-5 respectively to the list of dates submitted on behalf of the plaintiff-respondent It is really surprising that without making any enquiry into allegations of gender harassment made by the plaintiff-respondent before the appropriate authority such allegations are said to be baseless and no reason whatsoever has been assigned to indicate why such allegations were i baseless. Thus in the face of the materials on record it appears that the allegations of sexual harassment made by the plaintiff-respondent were not gone into by the appropriate authority of the appellant company by causing an enquiry 0 into the matter and no opportunity of hearing appears to have been given by them to the plaintiff-respondent before coming to the conclusion that such allegations are baseless. Under the above circumstances we concur with- the learned Trial Judge in holding that the plaintiff is able to establish the prima facie case and balance of convenience is in her favour. In pur view if the order of temporary injunction in the manner as prayed for by the plaintiff-respondent is not granted, the plaintiff will suffer irreparable loss. Viewed in this perspective we find no infirmity in the impugned order and as such the same cannot be interfered with. We, however, make it clear that legality of the departmental proceeding challenged by the plaintiff-respondent is a vital issue involved in the suit and such question can only be decided at appropriate stage of trial on evidence. At this stage it is not at all desirable on our part to arrive at any finding, which will 0 prejudicially affect the merits of the suit. ( 18 ) FOR the foregoing reasons we find no merit in the appeal. The appeal is accordingly dismissed. The impugned order being Order no. 16 dated September 9, 2003 passed by Shri P. L. Dutta the learned Judge 11th Bench, City civil Court, Calcutta, in Title Suit No. 225 of 2003 is affirmed. No order as to costs. Be it noted that the findings arrived at by us at the time of disposal of the instant appeal must not 0 be taken to be findings on merits of the suit and it is for the trial Court to decide the issues involved in the suit at appropriate stage of trial after evidence is led by the parties. ( 19 ) XEROX certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible after observing the required formalities.