Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 28TH DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944 WP(C) NO. 17490 OF 2018 PETITIONER: MANOJKUMAR.V AGED 48 YEARS, S/O.VISWANATHAN NAIR, RESIDING IN RADHALAYAM, KURITTISSERY MURI, KURITTISSERY VILLAGE MANNAR,ALAPPUZHA DISTRICT. BY ADV SRI.PRAMOD J.DEV RESPONDENTS: 1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HOME,STATE SECRETARIAT, THIRUVANANTHAPURAM- 695 001 2 THE KERALA STATE HUMAN RIGHTS COMMISSION REPRESENTED BY ITS REGISTRAR, TURBO PLUS TOWER,P.M.G JUNCTION THIRUVANANTHAPURAM- 695 033 3 ANJANA.V KALLELI MANAPPURAM HOUSE AYMANAM.P.O.,KOTTAYAM DISTRICT- 686 015 4 THE DISTRICT POLICE CHIEF ALAPPUZHA DISTRICT- 688 011 BY ADVS. SRI.V.JOHN MANI SMT.SREEJA SOHAN.K. SHRI.VARGHESE SABU SMT.K.K.SETHULAKSHMI Sh RI.S.JAYANT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 28th day of February, 2023 S. Manikumar, CJ Before the Kerala State Human Rights Commission, respondent No.3, a teacher in Nair Samajam Higher Secondary School, Mannar, has preferred a complaint. Acting on the same, the Commission has directed the Chief investigating Officer to investigate into the allegations made in the complaint. A detailed report has been filed. Acting on the report and after taking note of the counter allegations made by the Management, Kerala State Human Rights Commission, vide order dated 2.3.2018, issued the following directions: “The District Police Chief, Alappuzha is directed to entrust the investigation of Crime No.1354/2016 of Mannar Police Station against the Principal of the school based on the complaint of the petitioner with the Deputy Superintendent of Police, District Crime Branch.
It is directed that the Manager and Principal of the Nair Samajam Higher Secondary School, Mannar, where the petitioner is working, shall take immediate steps for constituting the Committee as per Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal)Act, 2013 and further make sure that it is functioning properly in the school.
It is stipulated in the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 that all employers/ management of schools and colleges should constitute the Committees as per law and Section 26 says about the duties of the employer and if any default is committed in constituting the committee the court shall register cases and the defaulters shall be punished to a fine of Rs.50,000. The petitioner shall be at liberty to register a case as per section 26 and 27 of the said Act.
It is also directed that a high level enquiry be constituted to investigate into the allegations leveled by the management against the petitioner headed by the Joint Director of Education Department. The Director of Secondary Education shall take action based on the orders of the High Court. Further steps shall be taken by the committee constituted under the leadership of the manager for getting the consideration of other teachers of the school to the petitioner. Copy of the order shall be forwarded to the District Police Chief, Alappuzha, Director of Secondary Education, Manager and Principal of the Nair Samajam Higher Secondary School, Mannar and the petitioner.” Being aggrieved, instant writ petition is filed to quash Exhibit P9 order of Kerala State Human Rights Commission.
2. Based on the grounds raised, Mr. Pramod J. Dev,
learned counsel for the petitioner, submitted that on the complaint preferred by respondent No.3, a case in Crime No.1354/2016 has been registered against the petitioner under Sections 341, 354 r/w. 509 of the IPC. After conducting a detailed investigation, final report has been filed before the learned Judicial First Class Magistrate Court, Chengannur. Being aggrieved, the 3rd respondent has filed a protest petition.
3. Learned counsel for the petitioner further submitted
that Crl.M.C.No.3224 of 2019, filed to quash the FIR in Crime No.1354/2016 has been dismissed. Challenging the same, an SLP has been preferred before the Hon’ble Supreme Court and that there is a stay of further proceedings in the said case.
4. Inviting the attention of this Court to Exhibit P10
circular dated 8.6.2014, issued by the Manager, Nair Samajam School, Mannar, he further submitted that school has already constituted a committee in terms of Section 4(1) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. In such circumstances, the direction of Kerala Human Rights Commission to constitute a Committee, is without proper verification of the
facts.
5. He further submitted that when the matter is
pending before the Hon’ble Supreme Court, the direction to the District Police Chief, Alappuzha, to entrust the investigation of Crime No.1354/2016 of Mannar Police Station, with Deputy Superintendent of Police, District Crime Branch, is also liable to be set aside.
6. Per contra, Mr. V. John Mani, learned counsel for respondent No.3, made submissions to sustain the order of Kerala State Human Rights Commission.
7. At this juncture, it is to be pointed out that the
Kerala State Human Rights Commission has also directed to conduct a high level enquiry, to investigate into the allegations levelled by the Management against the 3 rd respondent, headed by the Joint Director of Education Department, which also requires interference.
8. He further added that when the management has
initiated disciplinary action against the 3 rd respondent, the same has been questioned in W.P.(C).No.34399 of 2017, which is pending on the file on this court.
9. Heard learned counsel for the parties and perused the material available on record.
10. Going through the order dated 2.3.2018 in HRMP. No.12240 of 2015, we are not able to deduce whether copy
of the Chief Investigating Officer’s report has been furnished to the writ petitioner for his remarks. When an adverse report is acted upon, writ petitioner/respondent in the complaint ought to have been given an opportunity to offer his remarks on the adverse finding.
11. The Commission seemed to have acted solely on the basis of the report of the said authority and in such circumstances, we are of the view that there is violation of principles of natural justice.
12. The complaint seemed to have been given to the
Kerala State Human Rights Commission alleging that the writ petitioner attempted to sexually harass and though a case in Crime No.1354/2016 was registered, there was no proper investigation, and, in such circumstances, a complaint was also given to the District Police Chief.
13. Fact remains that undisputably, the complaint to
the police has been investigated and final report has been filed before Court of competent jurisdiction. Admittedly, a protest complaint was also filed. Writ petitioner’s attempt to quash the FIR has failed and the matter is stated to be pending before the Hon’ble Supreme Court. There is also stay of the proceedings before the learned First Class Magistrate Court, Chengannur.
14. While that be so, there is no need to entrust the investigation of Crime No.1354/2016 with the Deputy Superintendent of Police, District Crime Branch.
15. As regards the observations and direction, issued to
constitute a committee, perusal of the circular, Exhibit P10 dated 8.6.2016, makes it clear that in the said school, as per Section 4(1) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, a committee is already in existence.
16. Exhibit P10 circular dated 8.6.2016 is reproduced:
“CIRCULAR As per Sec 4 (1) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, Manager is pleased to constitute an internal committee for dealing with the complaint received under this Act. The committee constituted in Nair Samajam School, Mannar as per Sec 4 (2) of the aforesaid Act consists of the following members.
1. Sr. Teacher - Presiding Officer
2. Teacher - Member
3. Teacher - Member
4. External Member
The external member shall be entitled to an allowance of two hundred rupees per day of work holding the proceedings of the Internal complaint Committee and is eligible for TA/DA. Sd/- Manager Nair Samajam School Date: 8.06.2014 Mannar”
17. In view of the above, the direction of Kerala State
Human Rights Commission to constitute a Committee, is erroneous, as the Commission has not taken steps to ascertain as to whether there is any such committee in existence.
18. Inasmuch as the management has already taken a
disciplinary action against the 3rd respondent, against which a writ petition, as stated supra, has been filed and pending before this Court, further direction of the Kerala State Human Rights Commission, vide order dated 2.3.2018, to constitute a High Level Committee, to investigate into the allegations levelled by the management, against the 3rd respondent, is also not required to be in existence. We are of the view that the directions are also liable to be set aside.
In fine, the order of Kerala Human Rights Commission in HRMP.No.12240 of 2015 dated 2.3.2018, is set aside. Writ petition is allowed. Sd/- S. Manikumar, Chief Justice Sd/- Murali Purushothaman, Judge sou.xxx APPENDIX OF WP(C) 17490/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMPLAINT IN CMP NO BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE'S COURT,CHENGANUUR EXHIBIT P2 TRUE COPY OF THE F.I.R. IN CRIME NO 1354/2016 OF THE MANNAR POLICE STATION EXHIBIT P3 TRUE COPY OF THE ORDER DATED 15.12.2016 IN BAIL APPLICATION NO.8586/2016 OF THIS HON'BLE COURT EXHIBIT P4 TRUE COPY OF THE STATEMENT OF FACTS FILED BY THE PETITIONER BEFORE THE MANAGER OF THE SCHOOL EXHIBIT P5 TRUE COPY OF THE STATEMENT OF FACTS DATED 20.12.2016 IN HRMP NO 12240/15/ALPY/FILED BY THE MANAGER OF NAIR SAMAJAM HSS, MANNAR EXHIBIT P6 TRUE COPY OF THE COMPLAINT DATED 7.7.2011 SUBMITTED BY MAHESWARY TO THE PETITIONER EXHIBIT P7 TRUE COPY OF THE FINAL REPORT IN CRIME NO.1354/2016 OF THE MANNAR POLICE STATION EXHIBIT P8 TRUE COPY OF THE LETTER BEARING NO HRMP NO.12240/15/A4/DATED 17.4.2018 ISSUED FROM THE OFFICE OF THE SECOND RESPONDENT EXHIBIT P9 TRUE COPY OF THE ORDER DATED 2.3.2018 IN HRMP NO.12240/2015 PASSED BY THE 2ND RESPONDENT EXHIBIT P10 TRUE COPY OF THE CIRCULAR DATED 8.6.2014 ISSUED BY THE MANAGER OF THE NAIR SAMAJAM HIGHER SECONDARY SCHOOL, MANNAR EXHIBIT P11 TRUE COPY OF THE MINUTES DATED 16.6.2014 OF
THE COMMITTEE CONSTITUTED UNDER THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT 2013 EXHIBIT P12 TRUE COPY OF THE MINUTES DATED 18.7.2014 OF THE COMMITTEE CONSTITUTED UNDER THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013