when the petitioner gave her complaint in the light of the unfair treatment by the two officers of the department it is the bounden duty of the Board to enquire into her complaint and take appropriate action. But once a complaint was found out to be untrue or not substantiated, there is no scope for initiating a further departmental action against the complainant herself. The Standing Order do not provide for any such contingency to turn against an employee who makes a complaint. The fact that the petitioner went before the Police and they registered an FIR and on a subsequent investigation the matter was closed as mistaken fact cannot give rise to cause of action for the Board to initiate disciplinary action against the petitioner. The Standing Orders referred to by them in the charge memo do not cover the case on hand. If the Board is allowed to proceed against an employee for giving complaint against co-official or officers, then no one will make a complaint. The very purpose of Standing Order 22 prescribing complaint Procedure will become a non existent factor. Therefore, the petitioner was correct in stating that in the absence of any enabling provision for enquiring into any alleged false complaint, merely because the petitioner has made a complaint of sexual harassment, she cannot be proceeded with by the Board.
Writ Petition preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus, calling for the records pertaining to the impugned charge memo in Ku.Aa.No.Ni.Pi.2/Udavi 3/Koo.Oo.Na.No.619/2009 dated 21.03.2009 issued by the second respondent, quash the same and consequently direct the respondents to re-inquire the complaint which the petitioner have given against Mr.Andrews Josesph, Assistant Administrative Officer and Mr.Vijayaraghavan Administrative Supervisor, by constituting a Committee in accordance with law and to take action against them, after giving the petitioner opportunity to present the petitioner's case and also to cross examine the witnesses. For Petitioner : Mr.V.Ajoy Khose
For Respondents : Mr.B.Sekar for TNEB
O R D E R
The petitioner in this writ petition, seeks to set aside an order dated 21.03.2009 passed by the Superintending Engineer, Tamilnadu Electricity Board, Mettur Electricity Distribution Circle, Salem District. By the impugned charge memo, the petitioner was accused of giving false complaint against an Assistant Administrative Officer and an Administrative Supervisor and seeking for arbitration through outsiders and also for giving a false complaint.
2. Though the writ petition was filed as early as 16.09.2009, it was yet to be admitted. When the matter came up on 17.09.2009, this Court granted an interim stay till 30.09.2009. Subsequently, the interim order was extended on 01.10.2009, 07.10.2009 and 23.10.2009. Thereafter, on 11.11.2009, it was extended until further orders.
3. Subsequent to the charge memo, a notice of enquiry was issued to her on 04.06.2009 by the Enquiry Officer. Even during the pendency of the enquiry proceedings, she was transferred by an order dated 29.07.2009 to Namakkal Electricity Distribution Circle, Namakkal on administrative grounds by the Chief Engineer Distribution, Erode Region. However after filing the writ petition and having obtained an interim order, by proceedings dated 19.01.2010, the transfer order was cancelled and she was retained at the Mettur Division Office itself.
4. Aggrieved by the order of stay, the Tamil Nadu Electricity Board filed a vacate stay application in M.P.No.1 of 2011 seeking to vacate the interim order together with supporting common counter affidavit sworn to by the Superintending Engineer, Mettur Electricity Distribution Circle on 31.12.2009. But that application is yet to be taken up. In the mean while, the petitioner had filed additional typed set of papers.
5. The grievance projected by the petitioner was that she is a widow and is working as an Administrative Assistant in the office of the Executive Engineer at Mettur. She is staying in the 'Q' type quarters at Door No.56/4. She has one son and one daughter. It is claimed by her that she belonged to Scheduled Caste. It was after the death of her husband during 1999, she was posted at the Mettur station. She was also promoted on 08.07.2002. She was incharge of the desk relating to transfer and postings, pay anomalies in RWE Cadre, promotions, etc. One Andrews Joseph was the Assistant Administrative Officer and he was the Section Head for Administrative Section -2. One Vijayaraghavan was the Administrative Supervisor of the section. She being a Scheduled Caste, she was constantly put to ridicule and harassment at the hands of these two officers as they belong to upper caste. Many times they had made caste remarks and she was subjected to sexual harassment.
6. On 29.12.2004, the said Andrews Jospeh called her to his chamber and gave her a cover and asked her to open the same. On opening the cover, she found that it contained an obscene photograph. She was asked by the officer as to how she feels about that photograph. At that time, Vijayaraghavan came in to the room and told her that she should adjust with him. Their sexual advances were rejected by the petitioner. She gave a complaint about their illegal actions. She was initially transferred to Namakkal Electricity Distribution Circle by an order dated 11.01.2005. However, the said transfer order was revoked and she was allowed to continue to work at Mettur.
7. A charge memo dated 05.02.2005 was given by the Department based on the performance report given by the Administrative Officer Andrews Joseph. After she was shifted to some other section, she gave a police complaint on 05.03.2005 to the Mettur Police against the conduct of those two officers. The said complaint was taken on file and registered as FIR No.73 of 2005. But the criminal complaint was closed on 20.12.2005 on the ground of mistake of fact. Though a committee for enquiry into sexual harassment was constituted, the petitioner faced further abuses at the hands of the two officials. The report of the Committee was yet to known to her. A charge memo relating to her performance in work was also closed.
8. In the mean time, TNEB Vigilance officials came and enquired from her regarding the anonymous complaint received against her. Though she had asked for certain vital documents they were not given to her and without any proper enquiry, the impugned charge memo was issued to her.
9. The first charge was that she gave a false complaint to the Police against the two officers and her action had brought bad name to the Board. The second charge was instead of making complaint to the Board, she had approached the police. The third charge was that she had acted unilaterally. The fourth charge was that her complaint to the police was closed as mistaken fact in the criminal court and her action would constitute misconduct under Certified Standing Orders. The fifth charge related to her allegation of sexual harassment on 29.12.2004 at 12.45 noon whereas at that time Andrews Joseph was giving evidence before the District Munsif Court at Mettur which was evidenced by a letter given by the Government Pleader Duraisamy.
10. The contention raised by the petitioner was that the charge memo was illegal and she cannot be prevented from going to police when she had strong grievance against other officers. It was not an anonymous letter or pseudonymous letter but a complaint was given by her in her name. The fact that the case was closed as mistaken fact does not enable the Board to issue a charge memo. The sexual harassment committee which enquired into the complaint (which report was obtained by her under the Right to Information Act) held that the Committee did not find any basis for the complaint and there was no necessity to take action against those officers. But the report was done without due opportunity to her. It was based upon the counter claim given by those two officials, the present charge memo is sought to be proceeded with. It was contended that the charge memo was without jurisdiction and liable to be set aside.
11. It must be noted that the petitioner is governed by the Certified Standing Order applicable to workmen engaged in clerical department of the Tamil nadu Electricity Board. In case employees of the Board, if they are aggrieved about any unfair treatment on the part of any one employed by the Board, the complaint shall be enquired.
12. It would be useful to refer to Standing Order 22, which reads as follows:-
"22.Complaints
All complaints arising out of workman's employment including those relating to unfair treatment or wrongful exaction on the part of anyone employed by the Board, shall be submitted to the immediate superior authority of the person against whom the complaint is made. The authority shall dispose of the representation if it is competent to do so, and if so, it shall forward it to the competent authority for disposal. The immediate superior authority or the competent authority, as the case may be, shall personally investigate the complaint expeditiously at such time and places as may be fixed and the complainant workman or an employee member of the union, to which the complainant workman belongs, shall have the right to be present and assist at such investigation. A copy of the order finally made shall be supplied to the workman. Prompt and quick action shall be taken by all the authorities concerned by whom the complaints are received and delays should be scrupulously avoided. However, cases of complaints relating to: i) Assault or abuse by any person holding a supervisory position;
ii) Refusal of an application for urgent leave shall be enquired into, within 3 days from the date of receipt of complaints.
In case the complainant feels aggrieved and is not satisfied with the disposal of his complaint, he may represent the matter to the next higher authority under copy to the lower authority. The decision of the higher authority shall be final."
13. Even in the absence of a complaint procedure the respondent TNEB is mandated by the judgment of the Supreme Court in the case relating to Vishaka v. State of Rajasthan reported in 1997 (6) SCC 241 to provide for a complaint mechanism to enquire into all complaints by women employees alleging sexual harassment at the work place.
14. Therefore, when the petitioner gave her complaint in the light of the unfair treatment by the two officers of the department it is the bounden duty of the Board to enquire into her complaint and take appropriate action. But once a complaint was found out to be untrue or not substantiated, there is no scope for initiating a further departmental action against the complainant herself. The Standing Order do not provide for any such contingency to turn against an employee who makes a complaint. The fact that the petitioner went before the Police and they registered an FIR and on a subsequent investigation the matter was closed as mistaken fact cannot give rise to cause of action for the Board to initiate disciplinary action against the petitioner. The Standing Orders referred to by them in the charge memo do not cover the case on hand. If the Board is allowed to proceed against an employee for giving complaint against co-official or officers, then no one will make a complaint. The very purpose of Standing Order 22 prescribing complaint Procedure will become a non existent factor. Therefore, the petitioner was correct in stating that in the absence of any enabling provision for enquiring into any alleged false complaint, merely because the petitioner has made a complaint of sexual harassment, she cannot be proceeded with by the Board.
15. In view of the above, this Court is obliged to interfere with the impugned charge memo. Accordingly, the charge memo dated 21.03.2009 is set aside. The writ petition stands allowed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. 27.01.2012
Index : Yes / No
Internet : Yes / No
svki
To
1.The Chief Engineer/Distribution,
Tamilnadu Electricity Board,
Erode Region, Erode -9.
2.The Superintending Engineer,
Tamilnadu Electricity Board,
Mettur Electricity Distribution Circle,
Mettur Dam -1,
Salem District.
K.CHANDRU,J.
Svki
Pre-Delivery Order in
W.P.No.19134 of 2009
27.01.2012
Print Page
Madras High Court
C.Suseela vs Tamilnadu Electricity Board on 27 January, 2012
Writ Petition preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus, calling for the records pertaining to the impugned charge memo in Ku.Aa.No.Ni.Pi.2/Udavi 3/Koo.Oo.Na.No.619/2009 dated 21.03.2009 issued by the second respondent, quash the same and consequently direct the respondents to re-inquire the complaint which the petitioner have given against Mr.Andrews Josesph, Assistant Administrative Officer and Mr.Vijayaraghavan Administrative Supervisor, by constituting a Committee in accordance with law and to take action against them, after giving the petitioner opportunity to present the petitioner's case and also to cross examine the witnesses. For Petitioner : Mr.V.Ajoy Khose
For Respondents : Mr.B.Sekar for TNEB
O R D E R
The petitioner in this writ petition, seeks to set aside an order dated 21.03.2009 passed by the Superintending Engineer, Tamilnadu Electricity Board, Mettur Electricity Distribution Circle, Salem District. By the impugned charge memo, the petitioner was accused of giving false complaint against an Assistant Administrative Officer and an Administrative Supervisor and seeking for arbitration through outsiders and also for giving a false complaint.
2. Though the writ petition was filed as early as 16.09.2009, it was yet to be admitted. When the matter came up on 17.09.2009, this Court granted an interim stay till 30.09.2009. Subsequently, the interim order was extended on 01.10.2009, 07.10.2009 and 23.10.2009. Thereafter, on 11.11.2009, it was extended until further orders.
3. Subsequent to the charge memo, a notice of enquiry was issued to her on 04.06.2009 by the Enquiry Officer. Even during the pendency of the enquiry proceedings, she was transferred by an order dated 29.07.2009 to Namakkal Electricity Distribution Circle, Namakkal on administrative grounds by the Chief Engineer Distribution, Erode Region. However after filing the writ petition and having obtained an interim order, by proceedings dated 19.01.2010, the transfer order was cancelled and she was retained at the Mettur Division Office itself.
4. Aggrieved by the order of stay, the Tamil Nadu Electricity Board filed a vacate stay application in M.P.No.1 of 2011 seeking to vacate the interim order together with supporting common counter affidavit sworn to by the Superintending Engineer, Mettur Electricity Distribution Circle on 31.12.2009. But that application is yet to be taken up. In the mean while, the petitioner had filed additional typed set of papers.
5. The grievance projected by the petitioner was that she is a widow and is working as an Administrative Assistant in the office of the Executive Engineer at Mettur. She is staying in the 'Q' type quarters at Door No.56/4. She has one son and one daughter. It is claimed by her that she belonged to Scheduled Caste. It was after the death of her husband during 1999, she was posted at the Mettur station. She was also promoted on 08.07.2002. She was incharge of the desk relating to transfer and postings, pay anomalies in RWE Cadre, promotions, etc. One Andrews Joseph was the Assistant Administrative Officer and he was the Section Head for Administrative Section -2. One Vijayaraghavan was the Administrative Supervisor of the section. She being a Scheduled Caste, she was constantly put to ridicule and harassment at the hands of these two officers as they belong to upper caste. Many times they had made caste remarks and she was subjected to sexual harassment.
6. On 29.12.2004, the said Andrews Jospeh called her to his chamber and gave her a cover and asked her to open the same. On opening the cover, she found that it contained an obscene photograph. She was asked by the officer as to how she feels about that photograph. At that time, Vijayaraghavan came in to the room and told her that she should adjust with him. Their sexual advances were rejected by the petitioner. She gave a complaint about their illegal actions. She was initially transferred to Namakkal Electricity Distribution Circle by an order dated 11.01.2005. However, the said transfer order was revoked and she was allowed to continue to work at Mettur.
7. A charge memo dated 05.02.2005 was given by the Department based on the performance report given by the Administrative Officer Andrews Joseph. After she was shifted to some other section, she gave a police complaint on 05.03.2005 to the Mettur Police against the conduct of those two officers. The said complaint was taken on file and registered as FIR No.73 of 2005. But the criminal complaint was closed on 20.12.2005 on the ground of mistake of fact. Though a committee for enquiry into sexual harassment was constituted, the petitioner faced further abuses at the hands of the two officials. The report of the Committee was yet to known to her. A charge memo relating to her performance in work was also closed.
8. In the mean time, TNEB Vigilance officials came and enquired from her regarding the anonymous complaint received against her. Though she had asked for certain vital documents they were not given to her and without any proper enquiry, the impugned charge memo was issued to her.
9. The first charge was that she gave a false complaint to the Police against the two officers and her action had brought bad name to the Board. The second charge was instead of making complaint to the Board, she had approached the police. The third charge was that she had acted unilaterally. The fourth charge was that her complaint to the police was closed as mistaken fact in the criminal court and her action would constitute misconduct under Certified Standing Orders. The fifth charge related to her allegation of sexual harassment on 29.12.2004 at 12.45 noon whereas at that time Andrews Joseph was giving evidence before the District Munsif Court at Mettur which was evidenced by a letter given by the Government Pleader Duraisamy.
10. The contention raised by the petitioner was that the charge memo was illegal and she cannot be prevented from going to police when she had strong grievance against other officers. It was not an anonymous letter or pseudonymous letter but a complaint was given by her in her name. The fact that the case was closed as mistaken fact does not enable the Board to issue a charge memo. The sexual harassment committee which enquired into the complaint (which report was obtained by her under the Right to Information Act) held that the Committee did not find any basis for the complaint and there was no necessity to take action against those officers. But the report was done without due opportunity to her. It was based upon the counter claim given by those two officials, the present charge memo is sought to be proceeded with. It was contended that the charge memo was without jurisdiction and liable to be set aside.
11. It must be noted that the petitioner is governed by the Certified Standing Order applicable to workmen engaged in clerical department of the Tamil nadu Electricity Board. In case employees of the Board, if they are aggrieved about any unfair treatment on the part of any one employed by the Board, the complaint shall be enquired.
12. It would be useful to refer to Standing Order 22, which reads as follows:-
"22.Complaints
All complaints arising out of workman's employment including those relating to unfair treatment or wrongful exaction on the part of anyone employed by the Board, shall be submitted to the immediate superior authority of the person against whom the complaint is made. The authority shall dispose of the representation if it is competent to do so, and if so, it shall forward it to the competent authority for disposal. The immediate superior authority or the competent authority, as the case may be, shall personally investigate the complaint expeditiously at such time and places as may be fixed and the complainant workman or an employee member of the union, to which the complainant workman belongs, shall have the right to be present and assist at such investigation. A copy of the order finally made shall be supplied to the workman. Prompt and quick action shall be taken by all the authorities concerned by whom the complaints are received and delays should be scrupulously avoided. However, cases of complaints relating to: i) Assault or abuse by any person holding a supervisory position;
ii) Refusal of an application for urgent leave shall be enquired into, within 3 days from the date of receipt of complaints.
In case the complainant feels aggrieved and is not satisfied with the disposal of his complaint, he may represent the matter to the next higher authority under copy to the lower authority. The decision of the higher authority shall be final."
13. Even in the absence of a complaint procedure the respondent TNEB is mandated by the judgment of the Supreme Court in the case relating to Vishaka v. State of Rajasthan reported in 1997 (6) SCC 241 to provide for a complaint mechanism to enquire into all complaints by women employees alleging sexual harassment at the work place.
14. Therefore, when the petitioner gave her complaint in the light of the unfair treatment by the two officers of the department it is the bounden duty of the Board to enquire into her complaint and take appropriate action. But once a complaint was found out to be untrue or not substantiated, there is no scope for initiating a further departmental action against the complainant herself. The Standing Order do not provide for any such contingency to turn against an employee who makes a complaint. The fact that the petitioner went before the Police and they registered an FIR and on a subsequent investigation the matter was closed as mistaken fact cannot give rise to cause of action for the Board to initiate disciplinary action against the petitioner. The Standing Orders referred to by them in the charge memo do not cover the case on hand. If the Board is allowed to proceed against an employee for giving complaint against co-official or officers, then no one will make a complaint. The very purpose of Standing Order 22 prescribing complaint Procedure will become a non existent factor. Therefore, the petitioner was correct in stating that in the absence of any enabling provision for enquiring into any alleged false complaint, merely because the petitioner has made a complaint of sexual harassment, she cannot be proceeded with by the Board.
15. In view of the above, this Court is obliged to interfere with the impugned charge memo. Accordingly, the charge memo dated 21.03.2009 is set aside. The writ petition stands allowed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. 27.01.2012
Index : Yes / No
Internet : Yes / No
svki
To
1.The Chief Engineer/Distribution,
Tamilnadu Electricity Board,
Erode Region, Erode -9.
2.The Superintending Engineer,
Tamilnadu Electricity Board,
Mettur Electricity Distribution Circle,
Mettur Dam -1,
Salem District.
K.CHANDRU,J.
Svki
Pre-Delivery Order in
W.P.No.19134 of 2009
27.01.2012
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