IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY 2017 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI W.P.NO.59536 OF 2016 [S-DE] BETWEEN:
SRI B.K.MOHANTY SON OF LATE R.K.MOHANTY AGED ABOUT 59 YEARS WORKING AS OFFICER ON SPECIAL DUTY (TECHNICAL) BANGALORE COMPLEX HINDUSTAN AERONAUTICS LIMITED VIMANPURA, BANGALORE 560 017. ... PETITIONER (BY:SMT.SANDHYA JAMADAGNI, ADVOCATE) AND:
1. HINDUSTAN AERONAUTICS LIMITED REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR T.SUVARNA RAJU NO.15/1, CUBBON ROAD BANGALORE 560 001.
2. CHIEF EXECUTIVE OFFICER HINDUSTAN AERONAUTICS LIMITED BANGALORE COMPLEX, COMPETENT AUTHORITY VIMANAPURA POST, BANGALORE 560 017 REPRESENTED BY SRI KAVERI RANGANATHAN.
3. EXECUTIVE DIRECTOR HUMAN RESOURCES HINDUSTAN AERONAUTICS LIMITED NO.15/1, CUBBON ROAD BANGALORE 560 001 REPRESENTED BY SRI A.K.TYAGI.
4. DIRECTOR (H.R.) CORPORATE OFFICE HINDUSTAN AERONAUTICS LIMITED NO.15/1, CUBBON ROAD BANGALORE 560 001 REPRESENTED BY SRI V.M.CHAMOLA.
5. INTERNAL COMPLAINT COMMITTEE REPRESENTED BY ITS CHAIRMAN SMT.T.ARUNA RAO DEPUTY GENERAL MANAGER H.R. OVERHAUL DIVISION HINDUSTAN AERONAUTICS LIMITED VIMANAPURA POST BANGALORE 560 017. ... RESPONDENTS (BY:SRI JOSHUA SAMUEL, ADVOCATE FOR R1 TO R4;
Notice to R5 held sufficient vide order dt.30.1.17) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE R5 VIDE ANNEXURE-N DATED 31.10.2016 AND THE LETTER DATED 14.11.2016 ISSUED BY THE R1 VIDE ANNEXURE-N1 AND ETC.
THIS W.P. COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has called into question the enquiry report, dated 31.10.2016 (Annexure-N) submitted by the respondent No.5 holding that the charge of sexual harassment levelled against the petitioner is established and recommending that the appropriate action be taken for the said misconduct and the issuance of show-cause notice, dated 14.11.2016 (Annexure-N1) issued by the respondent No.1.
2. Smt.Sandhya Jamadagni, the learned counsel for the petitioner submits that the complainant herself was not interested in prosecuting the matter. She submits that the respondents did not create any atmosphere conducive for bringing about the conciliation between the parties, as required by Section 10 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act, 2013. She submits that the very composition of the fifth respondent Internal Complaints Committee is illegal. She submits that more than 90% of its members are only women. She submits that the members of the Committee are all juniors to the petitioner. She submits that nobody from the non-governmental organization was made a member of the said Committee. She complains of bias against the petitioner.
3. Sri Joshua Samuel, the learned counsel appearing for the respondent Nos.1 to 4 submits that the complainant was indeed offered an opportunity to bring about conciliation in the matter. However, the complainant affirmed that she wants to proceed with the complaint, dated 7.6.2016. In support of his submissions, he brings to my notice a copy of the proceedings of the fifth respondent Committee, dated 8.7.2016 (Annexure-R1). He submits that the fifth respondent Committee consisted, amongst others of Smt.Indrani, an external member. He submits that the statute does not prescribe that only those who are senior to the accused person may be made members of the Committee; it only states that the senior level officers are to be made the members of the Committee, subject to their availability and that in the instant case, all the members of the Committee are senior officers.
4. The learned counsel relies on the Division Bench’s judgment of the Delhi High Court in the case of SONALI BADHE v. ASHISH CHANDRA SINGH AND ORS., in W.P.(C)4756/2014 and CM Appl.No.9470/2014, disposed of on 10.9.2015. In the said case, similar challenge came to be negatived on the ground that it is premature.
5. He has also relied on this Court’s decision in the case of SRI M.DHANRAJ v. M/S.HINDUSTAN AERONATICS LTD., in Writ Petition No. 55956/2016, disposed of on 14.12.2016, to support his submission that if the petitioner wants to challenge the enquiry report, the same has to be by way of an appeal only before the appellate authority. He brings to my notice Clause 23 of the respondents’ Conduct, Discipline and Appeal Rules, 1984, which states that the competent/disciplinary authority has the power to accept or not to accept the report of the enquiry committee. He also brings to my notice the respondents’ circular, dated 8.7.2016. Clauses 10 and 11.1 of the said circular are extracted hereinbelow:-
“10. Submission of Report by the ICC:
The ICC shall submit its Report to the Competent / Disciplinary Authority, as applicable to the employee against whom the complaint was made, as per the HAL CDA Rules / Standing Orders.
11. Powers of Competent / Disciplinary Authority:
11.1 The Competent / Disciplinary Authority shall have the same powers as under the HAL CDA Rules / Standing Orders. The Report received from the ICC will be processed like in the case of a Domestic Enquiry Report.”
5. The submissions of the learned counsel have received my thoughtful consideration. The first and the foremost question that falls for my consideration is whether the challenge to the enquiry report and the notice thereon to the delinquent to make a representation against the findings of the enquiry can be raised?
6. To answer this question, it is profitable to refer to the Apex Court’s judgment in the case of UNION OF INDIA AND ANR. v. KUNISETTY SATYANARAYANA reported in AIR 2007 SC 906. The Head Note ‘A’ of the said reported decision reads as under:-
“Ordinarily no writ lies against a charge-sheet or show cause notice. The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge- sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal.”
7. I may usefully refer to what the Apex Court had to say in the case of SECRETARY, MINISTRY OF DEFENCE AND OTHERS v. PRABHASH CHANDRA MIRDHA reported in (2012) 11 SCC 565. Paragraph No.12 of the said decision is extracted hereinbelow:
“12. Thus, the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.”
8. All the contentious issues raised on behalf of the petitioner’s side in these proceedings can be raised by filing a representation in response to the impugned notice, dated 14.11.2016 (Annexure-N1). It is not that the petitioner is remediless. The petitioner is given an opportunity to make a representation against the findings of the enquiry committee. If the competent/disciplinary authority finds that the findings are not sustainable or that the enquiry held is not in accordance with law, it would not accept the findings of the enquiry committee. Further, if the competent/disciplinary authority accepts the findings of the enquiry committee, the petitioner also has the right of appeal under the service regulations of the respondent. As of now, none of the petitioner’s rights are infringed. No firm cause of action has accrued to the petitioner to file this petition. If the competent/disciplinary authority passes any order affecting the rights of the petitioner and if the appellate authority upholds the said order, it is then that the petitioner can call into question the disciplinary proceedings by filing a writ petition.
9. I have consciously avoided considering the submissions of the petitioner on merits, lest it should affect the competent/disciplinary authority’s consideration of the petitioner’s objections/representation. The impugned notice, dated 14.11.2016 (Annexure-N1) gives ten days’ time to the petitioner to submit a representation against the findings of the enquiry committee. But immediately on the receipt of notice, the petitioner has rushed to this Court and filed the writ petition on 21.11.2016. This Court, by its order, dated 28.11.2016 granted interim stay of the operation of recommendation of the fifth respondent Committee.
10. Section 14 of the Limitation Act, 1963 also provides for the exclusion of time of the proceedings spent bona fide in the court without jurisdiction. I deem it necessary and just to give ten days time to the petitioner to submit his representation against the findings of the enquiry committee in response to the notice, dated 14.11.2016 (Annexure-N1). Needless to observe that all the contentions are left open to be urged before the competent/disciplinary authority.
11. This petition is accordingly disposed of. No order as to costs.
Sd/- JUDGE VGR