Independent disciplinary action by an employer under service rules is permissible even after conciliation under the Sexual Harassment of Women at Workplace Act, as Section 10(4) does not bar such inquiries.

JUDGMENT :

Ashutosh Kumar, CJ.

We have heard Mr. R. Dubey, learned Advocate for the appellants and Mr. R. Sharma, learned Senior Advocate, assisted by Ms. P. Phukan for the respondent No.1.

2. This intra-Court appeal is directed against the judgment dated 26.02.2024 of the learned Single Judge passed in WP(C) No.949/2023, whereby the observation in the Internal Complaints Committee (hereinafter to be referred as “ICC”) Report that “evidence was lacking”, was expunged and the employer’s decision to institute an independent Departmental Proceeding against the respondent No.1/charged officer was set aside, principally on the ground of Section 10(4) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter to be referred as the “2013 Act”).

3. The appellant/employer contends that the learned Single Judge exceeded the writ jurisdiction in disturbing the factual findings of the ICC and that Section 10(4) of the 2013 Act does not bar initiation of disciplinary action by the employer on the basis of independent material, particularly, where the ICC itself had declined to proceed after the conciliation, and that the complainant’s post conciliation objection and a new material (screenshot) required fresh consideration, which the employer attempted to address through Departmental Proceedings.

4. The respondent No.2, a lady Officer working under the supervision of respondent No.1, had lodged a complaint of sexual harassment against the respondent No.1, which was placed before the ICC. During the proceedings, both the parties opted for conciliation on account of workplace disturbance. Conciliation succeeded to the extent that both agreed not to work in proximity.

5. The ICC, after a curtailed inquiry (the complainant/respondent No.2 not pressing for a full inquiry due to mental distress), concluded that evidence was lacking. Later, the complainant objected to such observation in the ICC Report of there being no evidence and cited a screenshot of an objectionable message sent to her by respondent No.1.

The matter was remitted to ICC, which declined to reopen the proceedings in view of the concluded conciliation.

6. The appellant/employer faced with the new material in workplace, initiated an independent departmental enquiry. The writ petition preferred by the respondent No.1 against such disciplinary action [WP(C) No.949/2023] was allowed and the Departmental Proceedings initiated against him vide order dated 13.01.2023 issued by the Disciplinary Authority appointing the Inquiry Officer to inquire into the charges and the Memorandum dated 25.10.2022, initiating the Departmental Proceedings against the respondent No.1, were set aside and quashed.

Simultaneously, considering the peculiar nature of the case at hand and also after considering all the materials on record and keeping in mind the dignity and reputation of the respondent No.2, the learned Single Judge expunged the first paragraph of the conclusion of the Inquiry Report dated 02.11.2022 declaring that there was no evidence regarding the sexual harassment by respondent No.1.

7. There is no effective resistance by the appellant/employer against the impugned judgment expunging that part of the ICC Report, which held that there was lack of evidence substantiating the charge as the inquiry was curtailed midway without the Committee having sufficient material before it to say that there was lack of evidence.

8. The question, therefore, before this Court is whether the learned Single Judge was justified in quashing the initiation of the Departmental Proceedings against the respondent No.1 after concili