The Gauhati High Court, on 9^th September 2021, in the case of AP Vs. The Gauhati High Court and Ors. held that in sexual harassment proceedings, provisions of the Assam Services (Discipline and Appeal) Rules, 1964 (“the Rules of 1964”) would be applicable, except when special provisions are made under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013 (“POSH Law”).

Facts: A complaint of sexual harassment was filed by a subordinate against the Chief Administrative Officer (“Petitioner”) of the Motor Accidents Claim Tribunal (“MACT”). During the pendency of inquiry before the Internal Committee (“IC”), an order was passed by an independent disciplinary authority of MACT on 13.02.2020. The order stated that pending a departmental enquiry, the Petitioner would be suspended with immediate effect. Alternatively, a show cause notice was served on the same day on the Petitioner, under Rule 9 of the Rules of 1964 in pursuance of the departmental enquiry.

Aggrieved by the order of suspension and the show cause notice dated 13.02.2020, Petitioner filed a Writ petition. He also made certain averments against the veracity of the allegations raised in the complaint under POSH Law.

Issues:

• Will the Assam Services (Discipline and Appeal) Rules of 1964 get invoked independently if an inquiry as per POSH Law is already initiated?

• Have the circumstances necessary for placing an employee under suspension been satisfied in the present case?

Contentions:

The Petitioner contended that the provisions of Rules of 1964 for misconduct, would only come into force when the IC arrives at its conclusion regarding the sexual harassment complaint. He further argued that till such conclusion, the Disciplinary Authority would have no jurisdiction to invoke the provisions of the Rules of 1964 to place the Petitioner under suspension.

The Respondents averred that as per section 19(i) of the POSH Law, it is the duty of the employer to treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct. Accordingly, as there exists an allegation of sexual harassment against the Petitioner, it is the duty of the employer to invoke the Rules of 1964. Moreover, as per the Respondents, the inquiry initiated by IC under Section 11 of POSH Law itself is an act of initiating a disciplinary proceeding under the Rules of 1964. Respondents said that they, therefore, have jurisdiction and the order of suspension along with the order for disciplinary proceeding are valid.

Decision

Regarding Issue 1, the Court held that the proceeding under POSH Law follows similar procedure as under the Rules of 1964, except for a minor procedural variance at the initial stage. Thus, it can be concluded that the proceeding under POSH Law has all the necessary ingredients for a procedure to be followed for an allegation of misconduct under the Rules of 1964. Therefore, a written complaint of sexual harassment from an aggrieved woman can be deemed as initiation of a disciplinary proceeding under the Rules of 1964. The IC itself would also be the Inquiring Authority as given under Rule 9(6) of the Rules of 1964 and the report to be submitted by the Committee would be an inquiry report in accordance with the Rules of 1964.

By referring to Central Civil Services (Classification, Control and Appeal) Rules (CCS (CCA) Rules), the Court held that CCS(CCA) Rules have been amended to clarify that a complaint of sexual harassment requiring an enquiry shall be deemed to be an enquiry by the Enquiring Officer appointed by the disciplinary authority for the purpose of CCS (CCA) Rules. This amendment was viewed by the Court to be agreement with the view taken by drawing a parallel between an enquiry by the IC in a proceeding under the Act of 2013 with that of a proceeding in a disciplinary proceeding for misconduct under the Rules of 1964.

Therefore, a simultaneous proceeding on the same set of allegations would not be maintainable. Consequently, the show cause notice to the Petitioner initiating disciplinary proceeding was set aside.

Regarding Issue 2, the Court held that the power of the Disciplinary Authority to suspend an employee under Rules of 1964 is bestowed to prevent the employee from interfering with a proceeding. In respect of a proceeding under the Act of 2013, the authority is within jurisdiction to place an Employee-Respondent under suspension.

The Court, though, clarified that a suspension cannot to be construed to be a form of punishment. The Court also distinguished that the mere fact that a complaint of sexual harassment is being inquired into does not by itself justify the suspension of an employee. There must be a reason to believe that allowing the employee to remain present in the workplace would adversely affect the proceeding against him. The Court held that there is nothing on record submitted by the Authority to explain how the Petitioner would adversely affect the proceeding initiated against him to justify his suspension. Thus, the suspension imposed on the Petitioner was set aside.

Other observations of the Court:

• Along the way, another question that came up was in cases of difference in procedure, whether the provisions under POSH Law shall prevail over the service rules. The Court observed that the meaning given to the expression of sexual harassment, lodging of the complaint and the procedure to be followed are provided under a special law. It further held that, under the laws of interpretation, the provisions of special law would prevail over the general law if there were any point of difference or contention between the two laws. It is pertinent to note that the provisions of the general law would govern as long as no provision is expressly excluded by the special law. Therefore, it was laid down by the Court that in a proceeding of sexual harassment all other provisions of the Rules of 1964 would be applicable, except for those provisions, for which special provisions are made under the POSH law.

• The Court also clarified that the correctness of the sexual harassment complaint, some of which were contended by the Petitioner but eventually not urged, would be within the domain of the IC to go into, and would not be decided by the court in the present writ petition. Thus, the Court dictated that if any report is submitted by the IC stating that the allegation is proved then the disciplinary authority shall proceed in accordance with the Rules of 1964 regarding misconduct.

Shreya Kanaujia, Legal Associate & Lawyer