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2018 Supreme(Raj) 292
IN THE HIGH COURT OF RAJASTHAN
ASHOK KUMAR GAUR, J.
SHITAL PRASAD SHARMA — Appellant
Vs.
STATE OF RAJASTHAN — Respondent
Civil Writs No. 2313 of 2018
Decided on : 06-04-2018
Advocate Appeared:
For the Appellant :Mr. Virendra Lodha, Sr. Advocate assisted by Shri Jai Lodha, Advocate
For the Respondent:Mr. Jagmohan Saxena, Additional Advocate
Headnote:
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – Sections 2(n) and 3(2) – Holding of enquiry by employer in respect of committing misconduct of sexual harassment against woman employees at work place – Challenging enquiry report submitted by Chairperson, Working Women Exploitation Prevention Committee – Challenged to show cause notice issued by Department of Personnel for taking action against him on basis of enquiry report – Held, As per Rule 9 of the Rules, 2013, wherever service Rules exist and Complaints Committee arrives at a conclusion that allegation against person proved, it shall recommend to employer or District Officer, as the case may be, to take any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the person from service or undergoing a counselling session or carrying out community service – Rule 9 of Rules, 2013 makes an exception in respect of the cases where service Rules exist and in such cases service Rules will be applicable for imposing the penalty – Court considered Rule 9 of Rules, 2013 only for purpose termination of service only answer but there are several other action which can be taken if the allegation of sexual harassment is made out on the basis of the report of the Committee – Enquiry report and punishment order illegal and the same are not sustainable in law – Writ allowed (Para 39, 40, 41)
Facts of the Case:
Holding of enquiry by the employer in respect of committing misconduct of sexual harassment against woman employees at work place – Challenging enquiry report submitted by Chairperson, Working Women Exploitation Prevention Committee – Challenged to show cause notice issued by Department of Personnel for taking action against him on basis of enquiry report.
Finding of Court:
As per Rule 9 of the Rules, 2013, wherever service Rules exist and Complaints Committee arrives at a conclusion that allegation against person proved, it shall recommend to employer or District Officer, as the case may be, to take any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the person from service or undergoing a counselling session or carrying out community service – Rule 9 of Rules, 2013 makes an exception in respect of the cases where service Rules exist and in such cases service Rules will be applicable for imposing the penalty – Court considered Rule 9 of Rules, 2013 only for purpose termination of service only answer but there are several other action which can be taken if the allegation of sexual harassment is made out on the basis of the report of the Committee – Enquiry report and punishment order illegal and the same are not sustainable in law.
Result: Writ allowed
Ashok Kumar Gaur, J.
Instant petition has been filed by the petitioner, who was working as Director, State Institute of Agriculture Management (SIAM), Durgapura, Jaipur, challenging the enquiry report dt.27.11.2017 submitted by the Chairperson, Working Women Exploitation Prevention Committee. The petitioner has prayed in the writ petition that the respondents-State may be restrained from taking any coercive steps against him on the basis of the enquiry report dt.27.11.2017. The petitioner has further challenged the show cause notice dt.05.01.2018 issued by the Department of Personnel for taking action against him on the basis of the enquiry report dt.27.11.2017. The petitioner while filing the main writ petition, prayed that the respondents if pass any order on the basis of the enquiry report dt.27.11.2017 and the show cause notice dt.05.01.2018, the same may also be taken on record and be declared null and void.
2. This court had issued notices in the main writ petition and since the State Government appeared as a caveator, time was granted to file reply to the petition.
3. During pendency of the writ petition, an order dt.12.03.2018 has been passed by the respondents-Department of Personnel imposing penalty of "removal from service" by finding the petitioner guilty of violation of Sections 2(n) and 3(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter shall be referred to as `the Act of 2013') and Rule 25 of the Rajasthan Civil Services (Conduct) Rules, 1971. The petitioner has filed an additional affidavit and has brought the order dt.12.03.2018 on record and also challenged the same in the instant petition. The petitioner is said to have attained the age of superannuation on 31.03.2018.
4. The brief facts of the case are that the petitioner had entered in the services of the State Government as the District Soil Conservation Officer in the year 1987 and he came to be promoted to the post of Assistant Director (Agriculture) in the year 1995. The petitioner was further promoted to the post of Deputy Director (Agriculture) against the vacancy of the year 2001-02 and then to the post of Joint Director (Agriculture) against the vacancy of the year 2006-07. The petitioner was further promoted on the post of Additional Director (Agriculture) against the vacancy of the year 2011-12 and was substantively holding the said post and was posted as Director, State Institute of Agriculture Management (SIAM), Durgapura, Jaipur on 17.10.2014.
The petitioner has pleaded that while he was posted as the Director, State Institute of Agriculture Management (SIAM), Durgapura, Jaipur, he came to be relieved vide order dt.08.09.2017 and was asked to report in the office of the Commissioner, Agriculture Department.
The petitioner has pleaded that he felt aggrieved against the order dt.08.09.2017 and filed S.B.Civil Writ Petition No.16404/2017 before this Court. The Court had passed a stay order on 19.09.2017 and thereafter the stay order was vacated on 12.10.2017.
The petitioner has pleaded that after vacation of stay order, the petitioner stood relieved and was kept under awaiting posting orders in the office of the Commissioner, Agriculture Department. The petitioner has further pleaded that to his utmost surprise and dismay, he received a communication dt.02.11.2017 issued under the signatures of the Deputy Director, Agriculture (Chemistry)-cum-Chairperson, Working Women Exploitation Prevention Committee wherein he was informed that certain complaints were received against him by the Principal Secretary (Agriculture) and as such the Committee was asked to inquire into the said complaints.
The petitioner appeared before the Committee i.e. the Chairperson, Working Women Exploitation Prevention Committee on 10.11.2017 and submitted his detailed representation and further gave parawise reply and documents/evidence pertaining to all the three complaints which were filed against him. The p
