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2020 Supreme(Cal) 547
IN THE HIGH COURT OF CALCUTTA
Dipankar Datta, Madhumati Mitra, J.
Institute Of Hotel Management, Catering Technology And Applied Nutrition & Ors. - Appellant
Versus
Suddhasil Dey & Anr. - Respondent
W P C T No. 137 of 2019
Decided On : 13-03-2020
Soumya Majumder, Advocate, Sandip Bhattacharya, Advocate, Dipta Banerjee, Advocate, Sudip Krishna Datta, Advocate
Headnote:
SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 - SECTION 11 - INQUIRY PROCEDURE - CCS (CCA) RULES, 1971 - RULE 14 - INQUIRY PROCEDURE - CROSS-EXAMINATION OF COMPLAINANT AND WITNESSES - RIGHT OF RESPONDENT - SECTION 16 - PROTECTION OF IDENTITY OF COMPLAINANT AND WITNESSES - SECTION 13(4) - RECOMMENDATIONS OF ICC - BINDING ON DISCIPLINARY AUTHORITY - INTERPRETATION.
Fact of the Case:
Mr. Dey, a senior lecturer-cum-senior instructor at an institute, was dismissed from service for sexual harassment of his lady students. He challenged the order of dismissal and the appellate order before the Central Administrative Tribunal, Kolkata Bench, which partially succeeded in his pursuit for justice. The employer challenged the order of the tribunal before the Calcutta High Court.
Finding of the Court:
1. The ICC failed to observe the statutory provisions in conducting the inquiry against Mr. Dey. 2. The ICC ought to hold the inquiry as far as practicable in accordance with the procedure laid down in the CCS (CCA) Rules. 3. The right of cross-examination of the complainant and her witnesses by the respondent is a basic right of a fair hearing and cannot be denied. 4. The recommendations of the ICC are not binding on the disciplinary authority and it is entirely for the disciplinary authority to decide its next course of action upon giving the recommendation due consideration.
Issues: 1. Whether the ICC observed the statutory provisions in conducting the inquiry against Mr. Dey? 2. Whether the ICC ought to hold the inquiry as far as practicable in accordance with the procedure laid down in the CCS (CCA) Rules? 3. Whether the right of cross-examination of the complainant and her witnesses by the respondent is a basic right of a fair hearing? 4. Whether the recommendations of the ICC are binding on the disciplinary authority?
Ratio Decidendi: 1. The ICC failed to observe the statutory provisions in conducting the inquiry against Mr. Dey by not providing him with copies of the complaints and not allowing him to cross-examine the complainants and their witnesses. 2. The ICC ought to hold the inquiry as far as practicable in accordance with the procedure laid down in the CCS (CCA) Rules, which provide for a fair and impartial inquiry. 3. The right of cross-examination of the complainant and her witnesses by the respondent is a basic right of a fair hearing and cannot be denied, as it is essential for the respondent to test the evidence against him and to present his defense effectively. 4. The recommendations of the ICC are not binding on the disciplinary authority and it is entirely for the disciplinary authority to decide its next course of action upon giving the recommendation due consideration.
Final Decision: The writ petition filed by the employer was dismissed at the admission stage. The order of the tribunal quashing the order of dismissal and the appellate order and remanding the matter back to the Board of Governors to act strictly in terms of the provisions of the Act was upheld. The Board of Governors was directed to comply with the order of the tribunal within the time frame found in sub-section (4) of section 11 of the 2013 Act.
JUDGMENT
Dipankar Datta, J. - Certain values of life, with which we Indians were always proud to associate ourselves, are fast on the decline. Respect for religion and love for humanity seem to be things of the past. Disrespect for women has also been on the increase. Although several legislation saw the light of the day to protect women, the country was lagging behind in one area. Noticing that there was no law to protect women from harassment and abuse at the workplace, attempts were made to restore some sense of sanity in this behalf. This resulted in the path breaking judgment being delivered by the Supreme Court in Vishaka v. State of Rajasthan, (1997) 6 SCC 241. Inter alia, it was held therein that working women, in workplaces, have the right to gender equality, to work with dignity and to a working environment that is safe and protected from sexual harassment or abuse. In the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, the Court laid down guidelines and norms for due observance at all workplaces or other institutions, until enactment of a legislation for the purpose.
2. Acting in compliance with the directions contained in Vishaka (supra), certain employers did introduce amendments in the conduct, discipline and appeal rules to deal with instances of sexual harassment and abuse of women at workplace, if at all, with iron hands. The Central Civil Services (Classification, Control and Appeal) Rules, 1971 [hereafter the CCS (CCA) Rules] and the Railway Servants (Discipline and Appeal) Rules, 1968 immediately come to mind, where amendments were introduced to deal with allegations of sexual harassment of women at workplaces. More than a decade and a half after Vishaka (supra), saw the advent of a special law on the subject of sexual harassment. The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereafter the 2013 Act) came into force from April 23, 2013.
3. Despite the law with stringent provisions therein being put in place, the same has not deterred egotist men from exposing themselves to be hauled up and proceeded against thereunder. There have been quite a few instances of men indulging in sexual harassment of women at workplace being dealt with under the 2013 Act and suffering punishment. At the same time, as is peculiar to our country, it does not take much time to misuse a beneficent piece of legislation, brought to protect a class, for personal gains or to wreak vengeance. It has been experienced that false accusations to tarnish the image of a man of character and who is upright and honest in his dealings have not stayed too far. It is, therefore, an onerous task for the persons responsible to enforce the 2013 Act in its letter and spirit to separate the grain from the chaff. While the need to protect women from sexual harassment and abuse at workplaces can hardly be overemphasized, those entrusted to deal with such allegations of sexual harassment and abuse have to proceed strictly in accordance with the laid down norms, lest an innocent man and a victim of circumstances is held guilty. It is axiomatic that any punitive measure including dismissal/removal from service of a man holding a responsible office found guilty of sexual harassment and abuse of a woman at the workplace leaves an indelible stamp of ignominy on his forehead, which is hard to obliterate. People acquainted with such a man may shun his company, fearing that women folk of their families could also run the risk of being harassed and abused. Such an order of punishment, more often than not, leaves behind a stigma with which he may have to survive till the end of his life and thereby his very existence could be at stake. It is, therefore, imperative to tread with caution and circumspection so that while justice is rendered to a victi
