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IN THE HIGH COURT OF MADRAS
V. Parthiban, J.
The Management of Christian Medical College and Hospital - Appellants
Vs.
S.G. Dhamodharan - Respondent
W.P. No. 29012 of 2018 and W.M.P. No. 33917 of 2018
Decided On : 15-03-2019
Protection of Human Rights Act, 1993 - Section 2 - Industrial Disputes Act - against the respondent employee - regarding sexual harassment - Management is a Minority Educational Institution - petitioner Management is a Minority Educational Institution. It received a complaint from one Mrs. B. Samathannamma, Hospital House Keeping Attendant, RUHSA Department, on 20.03.2013, against the respondent employee, regarding sexual harassment. The complaint given by the said person was forwarded to the committee specially constituted as per the judgment of the Honble Supreme Court of India in Vishaka case reported in 1998 (2) LLN 965. The petitioner Management has constituted a committee in accordance with the above judgment of the Honble Supreme Court, with the following members - In pursuance of the complaint, an incamera proceedings had been conducted by the Committee and the statements were taken from the relevant staff including the complainant herself and the respondent workman. On consideration of the relevant materials and evidence, the committee gave a finding, holding the respondent employee guilty of the charges framed against him, by its report dated 06.06.2013. The committee has also recommended to initiate action against the respondent employee and pursuant to the recommendation, a show cause notice was issued on 20.06.2013 to the employee. The respondent employee submitted his explanation– Held, As rightly contended by the learned counsel for the petitioner Management that it would not be in the interest of the complainant to be summoned by the Industrial Tribunal and to compel her to give evidence once again against the perpetrator of harassment. Such scenario is not conducive for dealing with the cases of sexual harassment and would also result in negation of sensitivity to be shown in such matters by the Institution. In any event, as rightly contended by the learned counsel for the petitioner that in case of any non-adherence to the Vishaka guidelines, it is always open to the aggrieved party to workout their remedies in the manner known to law - Ultimately, this Court finds that the approach of the Industrial Tribunal appears to be invalid in not making a distinction between sexual harassment cases and other normal cases and such cliched and stereotype approach of the Industrial Tribunal per se discloses non-application of mind and therefore, it calls for interference of this Court. At the risk of repetition, it is to be reiterated that once the Management had no choice except taking action against the employee concerned on the basis of the report of the special committee, such action cannot be at the risk of interference by the Industrial Tribunal and the consequences of such interference by the Industrial Tribunal would only result in finding fault with the action of the Management when such fault cannot be attributable to the Management at all in terms of the scheme of Vishaka guidelines and the recommendations of the special committee in such matters - case law as relied on by the learned counsel for the respondent, has application only in other cases and not in the sexual harassment case of this nature and in any case observation of the learned single judge of this Court can have no application on the factual matrix of the present case - petition is allowed
ORDER :
V. Parthiban, J.
1. Heard Mr. Sanjay Mohan, learned counsel for the petitioner and Mr. S.T. Varadarajulu, learned counsel appearing for the respondent.
2. The petitioner has approached this Court, seeking the following relief:-
"To issue a Writ of Certiorari, to call for the records connected with A.P. No. 49 of 2013 in I.D. No. 23 of 2010 on the file of the Presiding Officer, Industrial Tribunal, Tamil Nadu, Chennai and to quash the order dated 25.09.2018."
3. The case of the petitioner is as follows:-
(i) The petitioner Management is a Minority Educational Institution. It received a complaint from one Mrs. B. Samathannamma, Hospital House Keeping Attendant, RUHSA Department, on 20.03.2013, against the respondent employee, regarding sexual harassment. The complaint given by the said person was forwarded to the committee specially constituted as per the judgment of the Hon'ble Supreme Court of India in Vishaka case reported in 1998 (2) LLN 965. The petitioner Management has constituted a committee in accordance with the above judgment of the Hon'ble Supreme Court, with the following members:-
(i) Dr. Anna Tharyan (Chairman)
(ii) Mr. Samuel Abraham (Legal Officer)
(iii) Mr. Durai Jasper (Member)
(iv) Dr. Elizabeth Tharion (Member)
(v) Mrs. Emma Koshi (External Member)
(vi) Mrs. Selva Titus Chacko (Secretary)
(ii) In pursuance of the complaint, an incamera proceedings had been conducted by the Committee and the statements were taken from the relevant staff including the complainant herself and the respondent workman. On consideration of the relevant materials and evidence, the committee gave a finding, holding the respondent employee guilty of the charges framed against him, by its report dated 06.06.2013. The committee has also recommended to initiate action against the respondent employee and pursuant to the recommendation, a show cause notice was issued on 20.06.2013 to the employee. The respondent employee submitted his explanation on 22.06.2013.
(iii) Thereafter, the petitioner Management issued a memo dated 28.06.2013, along with the copy of the complaint dated 20.03.2013 and also the report of the committee along with the letter dated 17.06.2013. Subsequently, the respondent submitted his explanation dated 30.06.2013, having not stated any new grounds to disprove the charges, the explanation was hardly convincing, the petitioner Management was constrained to dismiss the respondent on 24.07.2013. In view of the pendency of dispute before the Industrial Tribunal, an approval petition was filed in A.P. No. 49 of 2013, seeking approval of the dismissal of the respondent with effect from 24.07.2013.
(iv) The learned Industrial Tribunal, Chennai, has passed an order finally on 25.09.2018, holding that there was no sufficient documentary evidence to establish that the enquiry was conducted in a fair and proper manner and proceeded to post the approval petition for enquiry by adjourning the matter to future date. According to the Industrial Tribunal, the charge was not proved against the respondent employee. Therefore, it required that the charges to be proved before it once again. The said order passed by the Industrial Tribunal is put to challenge in the present writ petition.
4. The learned counsel for the petitioner Management would submit that the Industrial Tribunal has completely misdirected itself by holding the enquiry conducted against the respondent, was not fair and proper by treating the case on hand as an yet another normal case by the Management in dismissing the employee without properly conducting the enquiry, without appreciating that in a case like this, the Management has little and no choice at all except to follow the guidelines issued by the Hon'ble Supreme Court of India in Vishaka case. According to the learned counsel, the Hon'ble Supreme Court of India issued a detailed guidelines which were required to be followed before any formal enactment is made on the subject matter and the petitioner Management had follo
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