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IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MICHAEL ZOTHANKHUMA, J.
Protim Patni Dey S/o Sri Pronoy Patni Dey - Appellant
Versus
Oil India Ltd. & Ors. - Respondent
WP(C)/7096/2017
Decided On : 23-04-2021
Industrial Disputes Act, 1947 - Section 21.2.1 – Constitution of India - Article 311 – Employment and service – Condo nation of delay - Whether petitioner could be said to be a workman as defined in Industrial Disputes Act, 1947 - Petitioner is aggrieved by Order passed by Deputy General Manager of Oil India Limited by which service of petitioner who is on probation has been terminated - Petitioner’s case in brief is that he was appointed as a Graduate Teacher for a period of six months in Oil India H.S. School - On basis of a complaint submitted by parents of a girl student of Class-IX petitioner was issued a show cause notice on charge of sexually harassing girl student - Petitioner submitted his reply to show cause notice denying charge – Thereafter notice was issued by respondent wherein it was stated that a formal enquiry was to take place against petitioner – Then respondents issued an Order by which show-cause notice was withdrawn and enquiry proceedings to be initiated was also cancelled –
Finding of the Court: In view of above reasons and also due to fact that impugned termination Order has not been issued by competent authority which is in violation of Clause 23.1 of Modified Standing Order impugned Order is not sustainable and is accordingly set aside – Consequently Order issued by Resident Chief Executive Oil India Limited is also set aside - As disagreement with Enquiry Report had not been made by Disciplinary Authority this Court was initially of view that departmental proceeding should be re-started from stage of submission of Enquiry Report by Enquiry Officer to Disciplinary Authority i.e. DGM – However DGM was person who had rejected petitioner's representation made against disagreement made by Principal against Enquiry Report - As such this Court is of view that re-starting disciplinary proceeding from stage of submission of Enquiry Report to DGM would not serve any purpose as there is a real chance of petitioner not getting a proper consideration with any disagreement that DGM would probably have against Enquiry Report - In this regard it would be profitable to refer to judgment of Apex Court in case wherein it has held that post-decisional opportunity of hearing does not sub serve rules of natural justice - Authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of representation at such a post-decisional opportunity –
Result: Petition disposed off
JUDGMENT & ORDER :
Heard Mr. N. Deka, learned counsel for the petitioner. Also heard Mr. S. N. Sarma, learned Senior counsel for the respondent No. 4, assisted by Mr. K. Kalita.
2. The petitioner is aggrieved by the Order dated 17.05.2017 passed by the Deputy General Manager (ER) of the Oil India Limited, by which the service of the petitioner, who is on probation, has been terminated. The petitioner’s case in brief is that he was appointed as a Graduate Teacher for a period of six months w.e.f. 13.07.2011 in Oil India H.S. School, Duliajan. On the basis of a complaint submitted by the parents of a girl student of Class-IX on 20.09.2011, the petitioner was issued a show cause notice on 23.09.2011 on the charge of sexually harassing the girl student. The petitioner submitted his reply dated 24.09.2011 to the show cause notice denying the charge. Thereafter, notice dated 25.04.2012 was issued by the respondent, wherein it was stated that a formal enquiry was to take place against the petitioner. Then, the respondents issued an Order dated 19.10.2011, by which the show-cause notice dated 23.09.2011 was withdrawn and the enquiry proceedings to be initiated was also cancelled.
Subsequent to the Order dated 19.10.2011 withdrawing the earlier show-cause notice, the petitioner was served with a second show-cause notice dated 19.10.2011, whereupon it was reiterated that the petitioner had sexually harassed a minor girl student of class-IX by making unwelcome remarks and gestures intending to insult the modesty of the girl student. Further, he had been coercing and forcing the student to agree to his illicit carnal desires for which the student was suffering from mental trauma and agony. The petitioner submitted his reply to the second show-cause notice vide representation dated 24.10.2011 denying the charge. Thereafter, a notice of enquiry dated 05.11.2011 was issued to the petitioner and an enquiry proceeding was initiated against the petitioner. The Enquiry Report was completed on 25.04.2012 and in the Enquiry Report dated 25.04.2012, the finding of Enquiry Officer was to the effect that the charges could not be established against the petitioner. The Enquiry Report centred around whether the petitioner had enquired about the boyfriend of the student and whether he had said “Nari Sukh”, which in the present case, would be to the effect that the petitioner had not been fortunate to have a womens love/pleasure. The Enquiry Report with regard to the above is reflected in the Eight and Ninth hearing, which is reproduced below:
CE asked MW1 that in the compliant letter the term sexual harassment has been mentioned, what kind of sexual harassment happened to her. She replied that since a teacher is talking about Nari Sukh and enquiring about her boy friend which is creating mental disturbance to her. Again when CE asked her that did he said these two words Nari Sukh & about her boy friend she verbally denied.
CE narrated an incident which was given in the explanation letter to the show cause notice. CE stated that on 22.09.2011 he went to meet Mr. Rajkhowa for vacating his temporary house. While he was returning near TDX turning, one Mr. Amir Dutta followed him & tried to assault him for which he took help from security personnel. In the mean time, Amir Dutta called one of his friends who came in a motor bike. CE tried to call two senior teachers namely Munni Singh & Shamanta Bhattacherjee for help but the friend in bike forcefully took his mobile phone and threatened Munni Singh with slang words.
During the cross examination of MW2, CE asked him that whether he had heard anything which CE&MW1 has discussed while going together towards home on 17.11.2011. MW2
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