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MANU/OR/0318/2018

IN THE HIGH COURT OF ORISSA AT CUTTACK


W.P.(C) No. 242 of 2017
Decided On: 16.05.2018
Appellants: Jyoti Prakash
Vs.
Respondent: Internal Appellate Committee and Ors.
Hon'ble Judges/Coram:
S.N. Prasad, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Prashanta Kumar Nayak, S. Mishra, A.K. Mohapatra
and S.N. Dash
For Respondents/Defendant: A.K. Mishra, S. Subhadarshini, D.K. Mishra and P.
Behera
JUDGMENT
S.N. Prasad, J.
1 . This writ petition under Article 226 and 227 of the Constitution of India for the
following prayers:-
i) As to why the Disciplinary proceeding initiated against the petitioner shall
not be quashed;
ii) As to why the order dtd. 27.12.2016 passed by the opposite party No. 2
under Annexure-9 shall not be quashed.
iii) As to why the inquiry report dtd. 30.11.2015 prepared by the Internal
Complaints Committee under Annexure-4 shall not be quashed; and
iv) As to why the order dtd. 14.7.2016 passed by the Internal Appellate
Committee under Annexure-6 shall not be quashed.
2. The brief fact of the case of the petitioner as per pleading made in the writ petition
is that the petitioner while working as Deputy Manager at Rourkela Township Branch,
Rourkela under the opposite party - Bank, has been subjected to the allegation of
sexual harassment by the opposite party No. 6 who lodged a complaint against him
before the Chief Manager-Branch Manager regarding misbehaviour of the petitioner
towards her. The authority has referred the matter before the Internal Complaints
Committee, the committee has issued notice to the petitioner, before whom the
petitioner has appeared and filed written submission against the allegation stating
therein that the same is false, fabricated and there is no evidence to substantiate the
aforesaid allegation but the Internal Complaints Committee has submitted report
before the competent authority by supplying copy of the same upon the petitioner,
who upon its receipt, has objected to it by filing an application before the higher
authority rebutting the allegation as also finding given by the internal complaints
committee but the higher authority has also not appreciated the objection raised by

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him, rather confirmed the finding given by the internal complaints committee, in
consequence thereof the notice has been issued by the disciplinary authority on
27.12.2016 giving therein the opportunity to file reply with respect to the proposed
punishment of imposition of penalty of removal from service and thereafter this writ
petition has been filed, inter alia on the ground that before the internal complaints
committee no opportunity of hearing has been given, the petitioner has not even
been allowed to cross-examine the witnesses, the order has been passed giving the
proposed punishment without initiating any regular proceeding as stipulated in the
Discipline and Appeal Rule, as such the entire action of the opposite party - Bank is
unreasonable and improper, hence not sustainable in the eye of law.
3. The opposite party -Bank as well as the complainant - opposite party No. 6 have
appeared and contested the case by vehemently arguing and refuted the ground taken
by the petitioner by submitting that the internal complaints committee has followed
all due procedures as provided under the statutory provision, he has been allowed all
adequate and sufficient opportunity and thereafter the allegation of sexual
harassment upon opposite party No. 6 has been found to be proved, the copy of the
enquiry report conducted by the internal complaints committee has been supplied to
the petitioner against which he has also made objection before the higher authority
but the finding given by the committee has been confirmed and thereafter under the
provision of Discipline and Appeal Rule, the disciplinary authority has issued the
notice indicating the proposed punishment in order to provide opportunity of hearing
to the petitioner and at that stage this writ petition has been filed, as such the writ
petition is premature and this court sitting under Article 226 of the constitution of
India may not interfere in the stage of notice since the petitioner will have
opportunity to raise all the points before the competent authority in his defence.
So far as the allegation of the petitioner that proper opportunity was not given, it has
been submitted that all adequate and sufficient opportunity was given by the internal
complaints committee and the petitioner has not made any requisition to cross-
examine the witnesses, rather as per the principle to follow the principle of natural
justice, the same has been followed and thereafter the internal complaints committee
has submitted a report, as such it cannot be said that the principle of natural justice
has not been followed, moreover even accepting the version of the petitioner that the
principle of natural justice has not been followed then also, on that count, the notice
dtd. 27.12.2016 cannot be interfered at this stage since this point can also be raised
by the petitioner at the time of submission of his reply of that and the same will be
taken into consideration by the authority.
4. This court has heard the learned counsel for the parties in detail and gone through
the pleadings.
Before entering into the issue involved it would be relevant to discuss regarding the
enactment known as the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 (hereinafter referred to as the Act, 2013).
It needs to refer the background before the enactment of the Act, 2013. In order to
tackle the problem of sexual harassment, the Ministry of Women and Child
Development, by a notification dtd. 9.12.2013 passed the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which
became effective from December 9, 2013. The Ministry also made the rules with
regard to the same effective from the same date. These rules are called the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules,

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2013 (herein after referred to as the Rules, 2013).
The Act to prevent incident of sexual harassment at workplace was enacted in
pursuance to the judgment rendered by Hon'ble Supreme Court in the case of Vishaka
and Others v. State of Rajasthan and others reported in MANU/SC/0786/1997 : 1997
(7) SCC 323 wherein the Hon'ble Apex Court has been pleased to hold that sexual
harassment at workplace is violative of constitutional rights of the women (including
rights of equality, practice any progression and to right to life with dignity) and are
discriminatory towards women. In the absence of safeguard, the court stated that an
effective alternative mechanism was needed to prevent violation of these fundamental
rights in the work place and to address the issue and to fill the legislative vacancy,
the Hon'ble Supreme Court has also led certain guidelines which made it mandatory
for every employer to provide for a mechanism to redress grievances relating to
sexual harassment at workplace.
The Hon'ble Apex Court also in the case of Medha Kotwal Lele & Ors. v. Union of
India & Ors. reported in MANU/SC/0898/2012 : AIR 2013 SC 93 stated that the
Visakha guidelines had to be implemented in sum, substances and spirit in order to
bring gender parity by ensuring women at workplace with dignity, decency and due
respect. Thereafter ultimately the enactment has been done by virtue of the Act, 2013
and Rules, 2013.
In the aforesaid Act, the sexual harassment, employer, workplace has been defined
along with the method to file complaint and the relief to be given to the victim. In the
aforesaid Act there is provision to constitute an internal committee and complaint is
to be made under the provision of section 9 and after the said complaint an
opportunity for conciliation as per the provision contained in Section 10 is to be
given to the parties and in case of failure the enquiry is to be made by the internal
complaints committee under the provision of section 11 of the Act, 2013. The enquiry
report is to be submitted in pursuance to the provision made U/s. 13 of the Act and
there is also provision of appeal if person is aggrieved from the recommendation
made by the internal enquiry committee under the provision of section 18 and
simultaneously the duties of the employer has also been provided therein.
The Rules, 2013 has also been enacted to deal with such situation. For the present
case the provision of section 11, 13, 18, 19 and 28 of the Act, 2013 as also the
provision of Rule 9 of Rules, 2013 are relevant, as such the same are being referred
herein below:-
"11. Inquiry into complaint.-(1) Subject to the provisions of section 10, the
Internal Committee or the Local Committee, as the case may be, shall, where
the respondent is an employee, proceed to make t inquiry into the complaint
in accordance with the provisions of the service rules applicable to the
respondent and where no such rules exist, in such manner as may be
prescribed or in case of a domestic worker, the Local Committee shall, if
prima facie case exist, forward the complaint to the police, within a period of
seven days for registering the case under section 509 of the Indian Penal
Code, and any other relevant provisions of the said Code where applicable:
Provided that where the aggrieved woman informs the Internal
Committee or the Local Committee, as the case may be, that any
term or condition of the settlement arrived at under sub-section (2)
of section 10 has not been complied with by the respondent, the

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Internal Committee or the Local Committee shall proceed to make an
inquiry into the complaint or, as the case may be, forward the
complaint to the police:
Provided further that where both the parties are employees, the
parties shall, during the course of inquiry, be given an opportunity of
being heard and a copy of the findings shall be made available to
both the parties enabling them to make representation against the
findings before the Committee.
(2) Notwithstanding anything contained in section 509 of the Indian Penal
Code, the court may, when the respondent is convicted of the offence, order
payment of such sums as it may consider appropriate, to the aggrieved
woman by the respondent, having regard to the provisions of section 15.
(3) For the purpose of making an inquiry under sub-section(1), the Internal
Committee or the Local Committee, as the case may be, shall have the same
powers as are vested in a Civil Court under the Code of Civil Procedure, 1908
when trying a suit in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and
examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.
(4.) The inquiry under sub-section (1) shall be completed within a period of
ninety days.
13. Inquiry report.- (1) On the completion of an inquiry under this Act, the
Internal Committee or the Local Committee, as the case may be, shall
provide a report of its findings to the employer, or as the case may be, the
District Officer within a period often days from the date of completion of the
inquiry and such report be made available to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as the case may
be, arrives at the conclusion that the allegation against the respondent has
not been proved, it shall recommend to the employer and the District Officer
that no action is required to be taken in the matter.
(3) Where the Internal Committee or the Local Committee, as the case may
be, arrives at the conclusion that the allegation against the respondent has
been proved, it shall recommend to the employer or the District Officer, as
the case may be-
(i) to take action for sexual harassment as a misconduct in
accordance with the provisions of the service rules applicable to the
respondent or where no such service rules have been made, in such
manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the service rules
applicable to the respondent, from the salary or wages of the
respondent such sum as it may consider appropriate to be paid to
the aggrieved woman or to her legal heirs, as it may determine, in

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accordance with the provisions of Section 15:
Provided that in case the employer is unable to make such
deduction from the salary of the respondent due to his being
absent from duty or cessation of employment it may direct
to the respondent to pay such sum to the aggrieved woman:
Provided further that in case the respondent fails to pay the
sum referred to in clause (ii), the Internal Committee or, as
the case may be, the Local Committee may forward the order
for recovery of the sum as an arrear of land revenue to the
concerned District Officer.
(4) The employer or the District Officer shall act upon the recommendation
within sixty days of its receipt by him.
1 8 . Appeal.- (1) Any person aggrieved from the recommendations made
under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-
section (3) of section 13 or subsection (1) or sub-section (2) of section 14
or section 17 or non-implementation of such recommendations may prefer an
appeal to the court or tribunal in accordance with the provisions of the
service rules applicable to the said person or where no such service rules
exist then, without prejudice to provisions contained in any other law for the
time being in force, the person aggrieved may prefer an appeal in such
manner as may be prescribed.
(2) The appeal under sub-section (1) shall be preferred within a period of
ninety days of the recommendations.
19. Duties of employer.-Every employer shall-
(a) provide a safe working environment at the workplace which shall
include safety from the persons coming into contact at the
workplace;
(b) display at any conspicuous place in the workplace, the penal
consequences of sexual harassments; and the order constituting, the
Internal Committee under subsection (1) of Section 4;
(c) organize workshops and awareness programmes at regular
intervals for sensitizing the employees with the provisions of the Act
and orientation programmes for the members of the Internal
Committee in the manner as may be prescribed;
(d) provide necessary facilities to the internal Committee or the
Local Committee, as the case may be, for dealing with the complaint
and conducting an inquiry;
(e) assist in securing the attendance of respondent and witnesses
before the internal Committee or the Local Committee, as the case
may be;
(f) make available such information to the Internal Committee or the
Local Committee, as the case may be, as it may require having
regard to the complaint made under sub-section (1) of Section 9;

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(g) provide assistance to the woman if she so chooses to file a
complaint in relation to the offence under the Indian Penal Code (45
of 1860) or any other law for the time being in force;
(h) cause to initiate action, under the Indian Penal Code or any other
law for the time being in force, against the perpetrator, or if the
aggrieved woman so desires, where the perpetrator is not an
employee, in the workplace at which the incident of sexual
harassment took place;
(i) treat sexual harassment as a misconduct under the service rules
and initiate action for such misconduct;
(j) monitor the timely submission of reports by the Internal
Committee.
28. Act not in derogation of any other law.- The provisions of this Act shall
be in addition to and not in derogation of the provisions of any other law for
the time being in force.
Rule 9 of Rules, 2013
9 . Manner of taking action for sexual harassment.- Except in cases where
service rules exist, where the Complaints Committee arrives at the conclusion
that the allegation against the respondent has been proved, it shall
recommend to the employer or the 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 respondent from service or undergoing a counseling session or carrying
out community service."
It is evident from the provision as contained in section 11 that subject to the
provisions of section 10, the Internal Committee or the Local Committee, as the case
may be, shall, where the respondent is an employee, proceed to make inquiry into
the complaint in accordance with the provisions of the service rules applicable to the
respondent and where no such rules exist, in such manner as may be prescribed or in
case of a domestic worker, the Local Committee shall, if prima facie case exist,
forward the complaint to the police, within period of seven days for registering the
case under section 509 of the Indian Penal Code, and any other relevant provisions of
the said Code.
The second proviso stipulates that where both the parties are employees, the parties
shall, during the course of inquiry, be given an opportunity of being heard and a
copy of the findings shall be made available to both the parties enabling them to
make representation against the findings before the Committee.
Section 13 stipulates the provision after submission of the enquiry report conferring
power upon the employer to take action for sexual harassment as a misconduct in
accordance with the provisions of the service rules applicable to the respondent or
where no such service rules have been made, in such manner as may be prescribed.
Section 19 confers duties of the employer wherein subsection (i) which stipulates to
treat sexual harassment as a misconduct under service rule and initiate action for
such misconduct.

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Rule 9 of Rules, 2013 contains provision with respect to such condition where service
rule does not exists and if the complaint committee arrives at the conclusion that the
allegation has been proved, it shall recommend to the employer or the district officer,
as the case may be, to take any action including written apology, warning, reprimand
or censure, withholding of promotion, withholding of pay rise or increments,
terminating the respondent from service or undergoing a counseling session or
carrying out community service.
It is evident from bare reading of section 11 and 13 that section 11 deals with the
position before initiation of enquiry while section 13 deals with the situation after
conclusion and submission of the enquiry report by the internal complaints
committee.
Section 11 stipulates that the internal complaints committee is to proceed to make
enquiry into the complaints in accordance with the provision of service rule
applicable to the respondent, meaning thereby enquiry is to be conducted as
provided under the provision of Discipline and Appeal Rule applicable to the
concerned employee against whom the enquiry has been initiated.
While section 13 stipulates that in case the internal committee has came to
conclusion that the allegation of sexual harassment is found to be true,
recommendation is to be made to the employer to take action for sexual harassment
as a misconduct in accordance with the provision of service rules applicable, meaning
thereby in case of the allegation having found to be true, the recommendation would
be made by the internal complaints committee treating the sexual harassment as
misconduct and to take action in pursuance to the service rule, which suggests that
the sexual harassment will be treated as misconduct and thereafter the proceeding is
to be initiated as per the service rule applicable for imposing the punishment.
This can also be taken note from the provision of section 19(i) which stipulates that
treat sexual harassment as a misconduct under the service rule and initiate action for
such misconduct, meaning thereby when there is stipulation to initiate action for such
misconduct, the implied meaning of the same would be a proceeding is to be initiated
against the concerned employee under the Discipline and Appeal Rule applicable.
This also further been clarified from the provision of Rule 9 of the Rules, 2013 which
is concerned with the situation where there is no service rule exists, the warding is
'to take any action' and there is no stipulation to 'initiate action' and there is
difference in between the warding "to take action" and "to initiate action", to take
action means the action is to be taken by the authority but to initiate action means
that the action is to be initiated under the Discipline and Appeal Rule where the
service rule exists.
Now it is to be seen that what is the service rule for imposing the punishment which
has been proposed, i.e. with respect to removal from service and it is evident that the
Discipline and Appeal Rule provides for imposing penalty as enshrined under the
provision of rule 67 which contains under the heading 'Miner Penalties' and 'Major
Penalties'. Under the heading of 'Major Penalty' removal from service is found
mentioned.
The provision of Rule 68 provides the process to initiate minor or major punishment.
For imposing major punishment the procedure is to frame definite and distinct charge
on the basis of the allegation against the officer and the article of charge together
with the statement of the allegation on which they are based.

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5. The petitioner contends herein by raising two grievances;
i) That before the internal complaint committee he has not be afforded with
adequate opportunity; and
ii) That the show cause notice dtd. 27.12.2016 is not sustainable since it
contains the proposed punishment without following the procedure to impose
major punishment as enshrined under the provision of discipline and appeal
rule under Rule 68 of the aforesaid rule.
6. So far as the first ground is concerned, it is evident from the material available on
record that on the basis of the complaint submitted by opposite party No. 6 as under
Annexure-1 duly been signed by other co-employees working in the aforesaid bank,
basis upon which the matter was taken up by the internal complaints committee,
while accepting it, notice has been issued to the petitioner along with the copy of the
complaint which has been replied, as would be evident from Annexure-2 dtd.
4.9.2015 whereby and where under it has been stated that the entire allegation is
false, fabricated and malicious and pre-designed and also sought for relevant
documents. Thereafter the petitioner has submitted a full-fledged response denying
each and every allegation vide his defence reply dtd. 7.11.2015.
The internal complaints committee has proceeded with the enquiry in presence of the
petitioner, summoned the witnesses and recorded their depositions. The witnesses
are the co-employees working under the aforesaid branch. The internal complaints
committee has given a summery finding stating therein that the charges leveled
against the petitioner is supported by evidence and the statements of the witnesses
indicates that charges to be true. None of the lady employee of the branch would feel
secure to work with him as a colleague, accordingly opined that the complainant's
case comes under the case of sexual harassment and recommend for appropriate
action against the petitioner in accordance with the provisions of the service rules
applicable.
The petitioner thereafter has made a protest against the aforesaid finding as would be
evident from annexure-5 by filing an application before the appropriate authority
which although has been treated as an appeal against the report submitted by the
internal complaints committee and has been disposed of confirming the fact finding
given by the Internal Complaints Committee observing therein that the enquiry has
been conducted as per the provisions of the SBI Officers Service Rule after providing
him ample opportunity to defend himself against the allegation and thereafter the
petitioner has also filed review to recall the aforesaid order of the appellate authority
as also the finding given by the internal complaints committee and also represented
before The General Manager and thereafter the notice dtd. 27.12.2016 has been
issued upon considering the record of the enquiry proposing therein to impose
penalty of removal from service in terms of Rule 67(1) of SBI Officers Service Rule,
calling upon to appear before the undersigned on 3.1.2017 for personal hearing
and/or to make submission if any and at that juncture this writ petition has been
filed.
So far as the contention of the petitioner to provide an opportunity of hearing before
the internal complaints committee, it is evident from the provision as contains in
section 11 which is subject to the provision of section 10 the committee will proceed
to make enquiry with the complaint in accordance with the provision of service rules
applicable to the respondent, meaning thereby on the basis of a compliant the

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enquiry would be conducted by the internal complaints committee in accordance with
the provisions of service rule.
This court, after going through the applicable service rule, has only found which is
not in dispute that the service rule does not provide the process to conduct an
enquiry rather the only process under the service rule is to inflict punishment after
following the procedure as provided under Rule 68 of the service rule.
The provision of section 11 speaks regarding the applicability of the service rules for
conducting enquiry under the provision of the Act, 2013 but since it is not available
under the applicable service rule, as such this court is only to see as to whether the
principle of natural justice has been followed before coming to a finding or not.
This court has gather after going through the material available on record which has
been annexed by the petitioner to the effect that after service of copy of the
complaint the petitioner has given detail reply in his defence and after considering it
the statement of the employees working in the aforesaid branch has been recorded
and thereafter the enquiry report has been submitted by the internal complaints
committee.
This court finds that the internal complaints committee is of the opinion with respect
to the allegation of sexual harassment which is found to be true and therefore
recommending for appropriate action against the respondent in accordance with the
provision of the service rule applicable. The relevant part of the finding given by the
internal enquiry committee is being referred herein below:-
"Summary of the Findings:- The charges alleged against the respondent be
supported by evidence but the statements of the witness indicates that
charges to be true.
None of the lady employees of the branch would fee secure to work
under/with him as a colleague.
Besides the complainant every lady employee (witness) has own experience
to share where she has faced personal remark on attire, looks, favoured
language, unprofessional talk and behavior.
Even though he denies the words in his palm were not meant for the
complainant, he accepts that he has made mistake to other colleagues and
requests for others interference for compromise, indicates that the charges
by complainant to be true.
From all the above findings the Internal Complaint Committee is of the
opinion that the complaint case comes under the case of sexual harassment
and recommend for appropriate action against the respondent in accordance
with the provisions in the service rules applicable the appropriate authority."
Thus it can be said herein that since the recommendation is to take appropriate
action in accordance with the service rule, which suggests that it is only a fact finding
enquiry and it is settled position of law that in the fact finding enquiry only the
requirement is to give show cause apprising the delinquent employee who is to be
proceeded or not to be proceeded, is to give his reply to the draft charges and only
after scrutiny of the reply the decision is to be taken by the competent authority as to
whether the charge as has been leveled against such employee is relevant for the

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purpose of initiating a department proceeding or not and in the case of fact finding
enquiry there is no occasion or also there is no provision to provide an opportunity to
cross examine the witnesses. The matter would have been different if the enquiry
report which has been submitted by the internal complaints committee would have
submitted a report by proving the charge with the recommendation to inflict
punishment without following the provision as stipulated in the applicable service
rule, but that is not the case herein, rather the Internal Complaints Committee has
recommended after coming to the finding of proving of the charge of sexual
harassment after recording the deposition of the co-employees working under the
branch in question to initiate action in accordance with the provision of the serve
rule.
Furthermore, the implication of Section 11 is also there if the decision to be taken for
instituting a criminal case by forwarding complaint before the police, thus section 11
implies for conducting enquiry and institution of criminal case.
Further if the authority is not willing to refer the complaint before the police rather
taken decision to initiate action for imposing punishment under service rule, then it
will govern by Section 13, as such Section 11 does not attract an opportunity to be
provided to cross examine the witnesses, it is for the reason that if complaint would
be referred before police, it will lead to criminal trial and thee the person will get an
opportunity as per the provision of Code of Criminal Procedure. The same will be
applicable regarding opportunity if decided to initiate action as per service rule, the
process as per Discipline and Appeal Rule is to be followed, as such the first ground
raised by the petitioner that in view of the provision of section 11 of the Act, 2013
the principle of natural justice has not been followed is not having any substance and
accordingly rejected.
9 . So far as the second ground is concerned it is to be stated herein that after
submission of the internal inquiry report as stipulated under the provision of section
13 of the Act, 2013 wherein under sub-section 13(1) the stipulation made therein to
the effect that "to take action for sexual harassment as a misconduct in accordance
with the provisions of the service rule applicable to the respondent or where no such
service rule has been made in such manner as may be prescribed." This provision has
also been read out along with the provision of section 19(i) of the Act, 2013 which
stipulates "treat sexual harassment as a misconduct under the service and initiate
action for such misconduct". These two provisions is to be read along with the
provision of Rule 9 of the Rules, 2013 which speaks "except in cases where service
rule exists, where the complaints committee arrives at the conclusion that the
allegation against the respondent has been proved, it shall recommend to the
employer or the 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 respondent from service or
undergoing a counselling session or carrying out community service."
It is evident from the aforesaid provision that this rule is made for category of
employees for whom there is no service rule exists and for such category of
employee in case of proving of charge of allegation of sexual harassment, the
stipulation made therein to take any action, there is different in between the
provision of section 19(i) and Rule 9 while under the provision of Section 19(i) the
stipulation made therein to initiate action for such misconduct by treating sexual
harassment as a misconduct for such category of employee for whom the service rule
is applicable but for such category of employee for whom the service rule is not there

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the provision of Rule 9 of Rules, 2013 stipulates to take any action, as such for the
category of such employee for whom service rules exists, the action is to be initiated
under the service rule but for such category of employees for whom the service rule
is not there, action is to be taken and there is material difference in between the
words 'to initiate action' and 'to take action'.
To initiate action' as per the service rules denotes to initiate a regular proceeding in
case of imposition of punishment either minor or major as provided under the service
rule while 'to take any action' depends upon the authority as has been conferred upon
them by virtue of the provision of Rule 9 of Rules, 2013.
Further it is evident from the provision of section 13(1) where the wording is to take
action for sexual harassment as a misconduct in accordance with the provision of
service rule applicable, meaning thereby the sexual harassment since is not under the
fold of misconduct in the service rule and when on the basis of the finding given by
the internal complaints committee it is found to be true, then it will be treated as
misconduct and thereafter to take action in accordance with the provision of service
rule, meaning thereby the imposition of punishment is to be taken in terms of the
service rule applicable.
It is also relevant to state herein that if only on the basis of the finding given by the
internal complaints committee if an employee working in the establishment found to
be involved in the allegation of sexual harassment, if inflicted with the major
punishment, then it will be said to be contrary to the service rule and the same will
be in the teeth of the Article 311(2) of the Constitution of India since in the
Discipline and Appeal Rule, where the process has been formulated to inflict minor or
major punishment, has been provided with the provision in terms of the intent of the
provision as contained in Article 311(2) of the Constitution of India and if the stand
of the opposite party - Bank or the opposite party No. 6 will be treated to be true that
the second show cause notice with the proposed punishment which is impugned in
this writ petition has got no infirmity, then in that situation it will be said that there
is violation of the principle as laid down under Article 311(2) of the Constitution of
India read with Discipline and Appeal Rule applicable to the petitioner.
It is also to be state here that the wording made under section 13(1) is of a
misconduct and not of the proven misconduct, meaning thereby misconduct if found
to be arrived at by the internal complaints committee, the same is to be dealt with by
initiating a regular proceeding as applicable under the Discipline and Appeal Rule.
1 0 . In the backdrop of this factual aspect, now it is to be seen the legality and
propriety of the order impugned which is with the proposed punishment.
It is not in dispute that the proposed punishment is only issued after the finding
given by the enquiry report forwarded before the disciplinary authority who,
accepting it, issues the proposed punishment by way of second show cause notice,
thus the second show cause notice is to be issued after conclusion of enquiry.
The Bank, presuming the report submitted by the internal complaints committee as
enquiry report under the Discipline and Appeal Rule, has issued the impugned
proposed show cause notice. As has been stated herein above that in the Act, 2013
there are two parts, Section 11 deals with the duty of the internal complaints
committee to conduct an enquiry and it can be submitted before the police by way of
a complaint if intended to take criminal action or can be submitted before the
disciplinary authority for dealing with such employees under the Discipline and

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Appeal Rule which is under Section 13 of the Act, 2013.
In view thereof the report submitted by the internal complaints committee in view of
section 11 cannot be said to be an enquiry report in terms of section 13 to be treated
as enquiry report under the provision of Discipline and Appeal Rule and since it is not
an enquiry report to be treated U/s. 13 as enquiry report, the proposed punishment
which is impugned in this writ petition treating the enquiry report submitted under
the provision of Section 11 will be said to be an improper decision of the authority
since that stage has not yet come because as yet the proceeding has not been
initiated as contemplated under the provision of Section 19(i) of the Act, 2013 and in
view thereof the notice cannot be held to be sustainable in the eye of law.
11. This court while discussing the facts in detail herein above, has found that the
impugned notice issued on 27.12.2016 is in the teeth of the recommendation made
by the internal committee whereby and where under it has been recommended for
appropriate action against the respondent in accordance with the provision of the
service rule and certainly the service rule to inflict major punishment for removal
from service contains a procedure under the provision of Rule 68, as such the
punishment which has been proposed for removal from service in terms of Rule 67(1)
of SBI Officers' Service Rule can only be inflicted and will be said to be in accordance
with service rule if followed by the procedure laid down U/s. 68 of the aforesaid rule.
In view thereof the impugned notice dtd. 27.12.2016 is not sustainable in the eye of
law, accordingly quashed.
1 2 . In the result the matter is remitted before the disciplinary authority of the
petitioner to initiate a proceeding as per the applicable Discipline and Appeal Rule
and conclude the same within the period as per the stipulation made under the
provision of Act, 2013.
With the above observation and directions the writ petition stands disposed of.
© Manupatra Information Solutions Pvt. Ltd.

30-07-2018 (Page 12 of 12) www.manupatra.com Raian karanjawala

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