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2014 DIGILAW 92 (TRI)

Pankaj Kumar v. Union of India

2014-02-17

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- Both the interim prayers are taken up for hearing and disposal. Heard learned counsel, Mr. Somik Deb for the petitioner-applicant and learned Asstt. Solicitor General, Mr. P.K. Biswas, assisted by learned counsel Mr. A. Roy, for the respondent-O.Ps. 2. The petitioner filed the connected writ petition inter alia praying for setting aside/quashing the disagreement note dated 21.11.2012 (Annexure P/6 to the writ petition) and order of punishment dated 20.11.2013 (Annexure P/8 to the writ petition), passed by one Vivek Vaid, DIG (CR & VIG), whereunder the report submitted by the complaint committee has not been agreed by the DIG as a disciplinary authority and proposed for taking action against the petitioner and consequently passed the order of punishment. 3. Fact, in short, for the purpose of resolving these special petitions, is that the petitioner was working as Commandant of CRPF Battalion, posted at Lalgarh, West Bengal at the relevant point of time and Smt. Tulsi Dungriyal was working as Assistant Commandant under the petitioner. It has been alleged by Smt. Tulsi Dungriyal that the petitioner while working as her superior authority sexually harassed her in the workplace and that matter was, therefore, forwarded to the complaint committee constituted to look into the matters of sexual harassment at workplace in the CRPF Battalion. The committee consisted of a Chairperson namely Dr. (Ms) R. Naik, DIGP (Medical), CH, CRPF, Bhubaneswar, Member-1 Dr. (Prov) P. Yasodhara, NGO member (Co-opted member) and Member-2 Shri A.N. Bastia, Dy. Commandant (Ex-Officio member), GC, CRPF, Bhubaneswar. The committee after thorough inquiry submitted a report holding that the allegation does not come within the purview of sexual harassment but it creates doubt about the actual intention of the delinquent. DIG (CR & VIG) of CRPF disagreed with the finding of the complaint committee and accordingly, arrived at his impugned decision of disagreement dated 21.11.2012 which is annexed as annexure P/6 to the writ petition. 4. Challenging the said disagreement note of DIG and consequent punishment order, the writ petition is filed along with a separate application praying for stay of that disagreement note dated 21.11.2012 and punishment order dated 20.11.2013 which has been registered as CM Appl. No. 446 of 2013 and while it was taken up before this Court on 23.12.2013, an interim order was passed stipulating that learned ASG, Mr. No. 446 of 2013 and while it was taken up before this Court on 23.12.2013, an interim order was passed stipulating that learned ASG, Mr. P.K. Biswas assured the Court that no further action will be taken against the petitioner except what has already been taken till the returnable date. 5. The later CM Application No. 66 of 2014 is filed alleging that even after the assurance made by learned Sr. ASG, on 23.12.2013, the respondents issued order dated 23.12.2013 by signal dated 24.12.2013 and order dated 08.01.2014 by signal of same date (Annexure CMA-2 & Annexure CMA-3, both of CM application No. 66/2014). 6. In the CM Application No. 66 of 2014 it is alleged that even after assurance made by the learned Sr. ASG, those orders through signal have been passed by the respondent-O.Ps. and the petitioner prayed for staying those orders issued by signal pending final disposal of the writ petition. 7. Indisputably, the petitioner was working as the Commandant of the CRPF at Lalgarh at the relevant point of time when Smt. Tulsi Dungriyal was working as an Asstt. Commandant under the petitioner. Smt. Dungriyal made complaint making certain allegations against the petitioner of sexual harassment in the workplace and therefore, an inquiry was directed against the petitioner by the complaint committee constituted for the purpose of inquiry into the matters of sexual harassment in workplace in the institution of the CRPF Battalion. Annexure P/5 to the writ petition is the report of the complaint committee in details. The conclusion of the complaint committee reads as follows:- The committee has examined in detail the charges of Sexual Harassment leveled by Mrs. Tulsi Dungriyal A/C against Shri Pankaj Kumar, CO. The committee has examined all witnesses of the prosecution side and available evidences. But the committee could not examine defence witnesses since the enquiry was conducted Ex-parte. On close scrutiny and evaluation of all the witnesses and available evidences, it has been revealed that Shri Pankaj Kumar, Comdt. used to consume liquor. His behavior towards a lady officer was not proper and he used to call the complainant at odd hours in the name of briefing. The complainant Mrs. Tulsi Dungriyal A/C neither mentioned anything about Sexual Harassment in any of her complaints addressed to IGP ES, DG CRPF whereas in her complaint to NCW she had mentioned the word Sexual Harassment only on subject of complaint. The complainant Mrs. Tulsi Dungriyal A/C neither mentioned anything about Sexual Harassment in any of her complaints addressed to IGP ES, DG CRPF whereas in her complaint to NCW she had mentioned the word Sexual Harassment only on subject of complaint. But in the contents she has mentioned nothing about Sexual Harassment nor there is any mention about her verbal complaint on the subject to her senior officers as also evident from enquiry report of Shri B.R. Kamath (then DIGP CRPF Durgapur) and from letter of Sri M. Nageswar Rao (then IGP ES CRPF) further it is difficult to substantiate the charge of Sexual Harassment without listening to the defense side as normally in such type of offences there are no direct evidences and witnesses. In this case also, the lone eye witness Dr. B.V. Rao CMO (SG) has only stated about her harassment but nothing about Sexual Harassment. Therefore the Committee is of the opinion that though Mrs. Tulsi Dungriyal A/C was harassed and felt insecure by the uncalled for behavior of Shri Pankaj Kumar, Comdt. but it could not be termed as Sexual Harassment although it creates doubt about is actual intention. 8. As stated hereinbefore, DIG of CRPF did not agree with the conclusion of the complaint committee and has recorded a note of disagreement for punishment of the petitioner. 9. It is submitted by Mr. Deb, learned counsel for the petitioner that while the compliant committee found the petitioner not guilty of sexual harassment, it was totally uncalled-for for the DIG of CRPF to arrive at a contrary finding to that of the finding arrived at by the complaint committee. It is contended by Mr. Deb that the complaint committee was quite aware of the Supreme Court's direction in the case of Vishaka & Ors. v. State of Rajasthan & Ors. reported in (1997) 6 SCC 241 and in the case of Medha Kotwal Lele & Ors. v. Union of India & Ors. reported in (2013) 1 SCC 297 , which has been conspicuously reflected in the report of the complaint committee. It is submitted by Mr. Deb, learned counsel for the petitioner that the report submitted by the complaint committee should be treated as a finding/report in an inquiry into the misconduct of the delinquent in respect of alleged sexual harassment in work place is concerned. It is submitted by Mr. Deb, learned counsel for the petitioner that the report submitted by the complaint committee should be treated as a finding/report in an inquiry into the misconduct of the delinquent in respect of alleged sexual harassment in work place is concerned. DIG of CRPF had no authority to arrive at a contrary finding since the appointing authority of the petitioner is the President of India and DIG of CRPF having no authority at all to record the disagreement note and to slap punishment on the petitioner. It is further submitted that even after the assurance made by the learned ASG, the authority of CRPF has taken step to impose penalty on the petitioner which is required to be stayed pending final disposal of the connected writ petition for fair ends of justice. 10. Learned ASG has submitted that he gave assurance before this Court on 23.12.2013 but before that assurance was communicated to the authority of CRPF at New Delhi, the action through Annexure CMA-2 and CMA-3 of CM Application No. 66 of 2014 was initiated and consciously there was no disobedience on the part of the respondent authority of CRPF. Referring to various items of complaints made by Smt. Dungriyal mentioned in the report of the complaint committee and the findings thereof, learned ASG has submitted that it is conspicuously proved that the petitioner passed sexually coloured remarks to the complainant which has been rightly considered by the DIG in his disagreement note though the complaint committee arrived at a conclusion that those remarks or the conduct of the petitioner do not amount to sexual harassment. 11. What amounts to a sexual harassment in workplace has been defined by the Apex Court in the case of Vishaka & Ors. (supra) which we may reiterate as follows:- 2. Definition: For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as: a) physical contact and advances; b) a demand or request for sexual favours; c) sexually-coloured remarks; d) showing pornography; e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. (supra) which we may reiterate as follows:- 2. Definition: For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as: a) physical contact and advances; b) a demand or request for sexual favours; c) sexually-coloured remarks; d) showing pornography; e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. 12. The complaint committee submitted a detailed report presumably keeping in mind the observation of the Apex Court in the case of Bishaka & Ors. (supra) and in the case of Medha Kotwal Lele (supra) and arrived at a conscious conclusion that the act of alleged misconduct of the petitioner does not amount to sexual harassment of the complainant in the workplace. There is no dispute that the report submitted by the complaint committee should be treated as a finding/report in an inquiry into misconduct of the delinquent in a case of sexual harassment in workplace. 13. I have gone through the report submitted by the complaint committee which is annexed with the writ petition. It appears the complaint committee considered item wise complaints made by the complainant Smt. Dungriyal and ultimately arrived at a conclusion as stated hereinbefore. Prima facie we have to attach importance to the report submitted by the complaint committee and we need not go for word by word and line by line scrutiny of the report at this preliminary stage of disposing the interim petition. 14. Learned ASG has referred a decision of the Apex Court in the case of D.S. Grewal v. Vimmi Joshi & Ors. 14. Learned ASG has referred a decision of the Apex Court in the case of D.S. Grewal v. Vimmi Joshi & Ors. reported in 2009 AIR SCW 2123 and has submitted that in that case the report submitted by the complaint committee was disagreed since the allegation which was made by the complainant found to be sexually coloured which amounted to sexual harassment in workplace. In that reported case, report was submitted not by a complaint committee constituted as per direction of the Apex Court in Bishaka's (supra) case. So that case is clearly distinguishable to that of the fact of the present case. Here we may attach primary importance to the finding of the complaint committee which has held that the allegations made do not come under the purview of sexual harassment of the complainant in the workplace. Having regard to that finding I think it is a fit case where pending disposal of the connected writ petition, the impugned disagreement note and punishment order should be suspended. 15. Accordingly, it is ordered that disagreement note dated 21.11.2012 of DIG, CRPF (Annexure P/6 to the writ petition) and the punishment order dated 20.11.2013 (Annexure P/8 to the writ petition) shall remain suspended till disposal of the connected writ petition. 16. The impugned signal messages (Annexure CMA-2 and CMA-3 to the CM Application No. 66 of 2014) also shall remain suspended till disposal of the writ petition. Both the CM applications accordingly stand disposed of.