Biplab Kumar Das S/o Girin Chandra Das v. IDBI Bank Ltd.
2017-06-05
AJIT SINGH, MANOJIT BHUYAN
body2017
DigiLaw.ai
JUDGMENT AND ORDER : 1. This intra Court appeal has been filed by the appellant challenging the legality and validity of the judgment and order dated 18.7.2016 passed by the learned Single Judge dismissing his WP (C) No. 5261/2015. 2. The brief facts are these. The appellant, while working as the branch manager of Golaghat Branch of Industrial Development Bank of India Limited was assigned to attend a training programme at Kolkata from 15.12.2013 to 18.12.2013. At the time, the Respondent No. 4-An Assistant Manager of Jowai Branch, Meghalaya, of the same bank was also attending another training programme there. Both the appellant and respondent no. 4, were put into a Visiting Officers Flat (VOF) at Kolkata in two separate rooms with attached bathrooms. The bathrooms of both the appellant and respondent no. 4 were separated by a common wall, having a louver for the purpose of ventilation. On 18.12.2013, respondent no. 4 lodged a complaint of sexual harassment against the appellant stating inter-alia that someone had taken her photograph from the common window of the adjoining bathroom, when she was using her bathroom in the morning and see also saw a black mobile phone pointed towards her bathroom. The appellant was sought for reply and he in his reply dated 19/12/2013 denied the allegations and stated that at that point of time he was not present in the room as he had gone for looking of his misplaced I-Pod. He also stated that he treated respondent no. 4 as his sister since she was junior to him in his College. However, the matter was ultimately referred to the Internal Complaints Committee which visited the place of occurrence, inspected the bathrooms, and questioned the attendant attached to the flat regarding the whereabouts of the appellant and also sent the mobile phone of the appellant to Intech, Mumbai, for forensic investigation and obtained its report. Although, no sufficient incriminating material could be found in his mobile phone to decisively point the finger of guilt towards him, the Internal Complaints Committee vide report dated 12.02.2014 observed that there was strong possibility of the appellant being involved in the alleged incident specially when his explanation that he was not present in the room at that point of time was without any substance. It was opined that there appeared to be sufficient truth in the complaint of respondent no. 4. 3.
It was opined that there appeared to be sufficient truth in the complaint of respondent no. 4. 3. Subsequently, on 18.6.2015 a show-cause notice was issued to the appellant informing him about the decision of the Disciplinary Authority to impose major penalty on him in terms of Rule 6 of the Industrial Development Bank of India Limited Officers’ (Discipline and Appeal) Rules, 2006 for alleged misconduct. Charge was also framed against the appellant as follows:- “That, you indulged yourself in various acts of sexual harassment in form of verbal and non-verbal nature during your stay in the Room No. 3 in Bank’s VOF located at Sunny Park, Ballygunge, Kolkata from December 15, 2013 to December 18, 2013 to Ms. Ipseeta Das, AM then posted at Bank’s Jowai Branch, Meghalaya, who too stayed in the same VOF in Room No. 2 (adjacent to your room with common wall with a louver separating bathrooms of both the rooms for the purpose of ventilation) for attending another training programme conducted by RTC Kolkata during the same period, by (i) sending her SMSs on December 15, 16 and 17, 2013 from your mobile number: 8011003011 to that of hers mobile number: 9794028683 with sexually determined intent and ulterior motive of request/demand for sexual favours from her and (ii) indulging yourself in yet another of sexual harassment caused to her when on December 18, 2013, at about 8:30 a.m. while she was in her bathroom for morning ablutions, you tried to take objectionable photograph/ video of a hers with the help of your mobile handset (NOKIA E63) through the louver of the common wall separating the bathroom of your room and that of hers. That by the aforesaid acts on your part, you have indulged in acts of sexual harassment at work place, which if proved, would amount to breach of Rules 5(1) & 32 of Industrial Development Bank of India Limited officers’ (Conduct) Rules, 2006 and constitutes a misconduct under Rule 33 of the said Rules.” 4. It may be mentioned herein that at the time of submission of the report by the internal complaints committee, the appellant was serving as a branch manager of Golaghat Branch in the state of Assam, but when the impugned show-cause notice was issued, he was posted as manager of the bank at Fatehpur, District Sheohar in the state of Bihar.
It may be mentioned herein that at the time of submission of the report by the internal complaints committee, the appellant was serving as a branch manager of Golaghat Branch in the state of Assam, but when the impugned show-cause notice was issued, he was posted as manager of the bank at Fatehpur, District Sheohar in the state of Bihar. The appellant challenged the impugned show-cause notice by way of the writ petition before this Court. The respondent nos. 1, 2 and 3 by filing a common affidavit countered the writ petition. Amongst other grounds taken on merit, the maintainability of the writ petition in this Court was also raised as a preliminary issue. It was the stand taken by the answering respondents that no cause of action or any part thereof, had taken place in any place within the territorial limits of this Court enabling to invoke the jurisdiction under Article 226 of the constitution of India. It was also contended that the incident in question took place at Kolkata, Internal Complaints Committee held its enquiry at Kolkata where it submitted its report, the impugned show-cause notice was issued from Kolkata and at that point of time appellant was posted at Bihar and as such, this Court, lacks territorial jurisdiction to adjudicate the matter. 5. The learned Single Judge dismissed the writ petition by the impugned judgment and order deciding the preliminary issue that this Court has no territorial jurisdiction to entertain the matter in as much as the cause of action or any part thereof did not arise in any place falling under the jurisdiction of this Court. Hence, this appeal. 6. After hearing the learned counsel for the parties and perusing the records we are of the considered view that there is no illegality or infirmity in the impugned judgment and order passed by the learned single judge calling for our interference. Section 2(o) (v) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, defines ‘Workplace’ as under:- “(v) any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey.” From the aforesaid definition, it is crystal clear that the place visited by the employee arising out of or during the course of his or her employment falls within the ambit of term ‘workplace’.
In the instant case, the alleged incident took place in Kolkata while the appellant was sent by his employer to attend a training programme. He was assigned that duty during his course of employment and the training programme was an incidence arising of his employment. Respondent No. 4 was also sent by her employer to attend another training during her course of employment. And both of them were accommodated in a single flat situated at Kolkata by the employer itself which was kept, maintained and meant for the visiting officers of the bank only. The charges levelled against appellant, regarding sending of SMSs from his mobile phone to the mobile phone of respondent No. 4 as well as taking photographs/video from his mobile also took place in the said flat at Kolkata. The complaint of Respondent No. 4 alleging sexual harassment against appellant was also lodged in Kolkata. The Internal Complaints Committee made the initial enquiry in Kolkata visiting the flat and the report was also submitted by the said committee from Kolkata. When, after a year, the show-cause notice was issued to appellant, the appellant was posted at Bihar and the same was also sent from Kolkata. Therefore, the cause of action or any part thereof did not arise in any place situated within the territorial jurisdiction of this Court and hence, this Court has no territorial jurisdiction under Article 226 of the constitution of India. Merely because appellant and Respondent No. 4 used to reside in Assam or appellant being posted in Golaghat at the relevant time, would not confer jurisdiction on this court to entertain the writ petition bypassing the constitutional provision mandated under Article 226(2) of the Constitution of India. In view of the aforesaid, we find no merit in the instant appeal. 7. The appellant is presently posted in Kolkata. He should, therefore, approach the Kolkata High Court by filing a petition for the redressal of his grievances. The appellant was protected by an interim order dated 5.9.2016 against the proposed action by respondent Nos. 1 and 2. The interim protection shall continue for one month from today. 8. With the above direction, the appeal is dismissed.