The discipline of quasi judicial and special forums requires that any grievance as to what has transpired during the process of hearing before any Committee or Commission adjudicating in quasi judicial or like manner, ought to be agitated before the same authority. Moreover, petitioner has failed to prove as to how petitioner had kept the track of further proceedings beyond sheer statement on oath. No efforts were made to secure copies of record to rely. 32] We, therefore, deem it appropriate to decline to entertain any grievance in nature of present one, in exercise of Writ Petitions. More over, even if this Court directs the Women's Commission to re-examine the matter, petitioner has essentially to go before the same Commission. Therefore, appropriate course is not to permit the petitioner scandalize the prestige and the authority at the Women's Commission to leave the petitioner to choose her course of action.
1] Heard the learned Advocates at length. 2] Above two (2) Writ Petitions and Civil Application in the decided Writ Petition No. 4072 of 2011 were heard together from time to time. Those were reserved for orders.
3] Thereafter, learned Advocate for the petitioner made a motion for taking cases on board,as the petitioner desired to place on record certain documents in Writ Petition No. 6422 of 2012. Therefore, the Writ Petitions were taken on board. The petitioner has sought leave to amend the petition. Leave was granted. Petitioner has added certain averments and certain documents. On the date of hearing, petitioner has also filed Civil Application No. 9666 of 2012 in Writ Petition No. 6422 of 2012, by which the petitioner has prayed for taking in safe custody certain registers which constitutes documentary evidence of petitioner's grievance against the Respondent No. 4. This application was heard with the Writ Petitions. 4] Two (2) Writ Petitions and Civil Applications 8 W.P. 6422, 1897,4072.....2012 - [ J ] are heard and are decided by this common Judgment and Order.
5] Petitioner has pursued these petitions with utmost persuasiveness. Voluminous record is produced as annexures. In these premises, detailed narration of facts was felt necessary. However, after considering the record and submissions, we have noticed that the compass of controversy is extremely narrow. 6] Facts relevant to the controversy are narrated as below:
[a] Petitioner is an employee of respondent no.3 - Corporation.
[b] According to the petitioner, Appointing, Disciplinary, and Removing Authority of the petitioner is the Municipal Corporation i.e. General Body.
[c] The scale of Pay applicable to the post of Legal Adviser shown in Recruitment Rules is `2,200/- to `3,750/- [Rupees Twenty Two Hundred to Thirty Seven Hundred Fifty only] as revised from time to time.
9 W.P. 6422, 1897,4072.....2012 - [ J ] [d] The scale of Pay of petitioner is higher than the scale of Pay of the post of Dy. Commissioner. Therefore, according to the petitioner, the competent authority to appoint, initiate and conduct disciplinary proceedings and remove, is the Municipal Corporation and not the Commissioner. 7] Petitioner's grievance is as follows: [a] The respondent no.4, is the incumbent, holding the post of the respondent no.5-the Municipal Commissioner, Aurangabad. [b] Respondent No.4 has behaved with and dealt with and/or treated the petitioner in such manner that his acts fit into the mischief as defined by the term "sexual harassment" of a female employee working in his office and under his control, under the Womens' Commission Act.
[c] The conduct of the Respondent No.4 in giving various notices, apart from his other objectionable conduct are and do amount to "sexual harassment".
10 W.P. 6422, 1897,4072.....2012 - [ J ] [d] The issuance of charge sheet to the petitioner is culmination of respondent no.4's act of "sexual harassment".
[e] As the Petitioner was aggrieved by the conduct of the Respondent No.4, the petitioner had moved two authorities and prayed for certain relief from different authorities, namely,:-
[i] Authority:- State Women Commission. Purpose:- For challenging and complaining that the act of issuing charge sheet and all other acts of the respondent no.4, which were deliberate acts of "sexual harassment" to the petitioner and for direction to the State to take action against the Respondent No.4.
[ii] Authority:- The State Government. Purpose:- For challenging the competence of the Municipal Commissioner in issuing charge sheet and seeking to quash and set aside the entire enquiry, by filing an appeal under statutory rules.
8] In the background that the petitioner's 11 W.P. 6422, 1897,4072.....2012 - [ J ] Complaint filed by her before Women's Commission was pending, petitioner filed a Writ Petition No. 4072 of 2011 and prayed therein for reliefs, which read as follows:
" Main relief:- (B) By issuing an appropriate Writ, Orders, Directions or by passing an appropriate order in the nature of Writ of mandamus, respondent no.2 - State Commission for Women may please be directed to constitute the inquiry Committee, as contemplated in directions of Hon'ble Supreme Court in case of Vishaka's case [AIR 1997 SC - 3011] read with Section 8 of the Maharashtra State Commission for Women Act, 1993 [MAH. Act No. XV of 1993], and complete the same within three months.
(C) By issuing an appropriate Writ, Orders, Directions or by passing an appropriate order in the nature of Writ of Mandamus, the on-going departmental inquiries, initiated after preliminary complaint dated March 16, 2011 which are initiated by respondent no. 4-Mr. Bhapkar, by letters dated May 10, 2011 (Outward No. MC/EST-1/2011/693 and No. MC/EST-1/2011/695) and being
proceeded assuming applicability of 'the Maharashtra Civil Services Rules', may please be suspended till submission of report of inquiry by respondent no. 2-Commission."
Interim relief:-
"(D) Pending hearing and final disposal of this Writ Petition, further proceedings in 'Departmental Inquiries', initiated by Letters dated May 10, 2011 [Outward No. MC/EST-1/2011/693 and No. MC/EST-1/2011/695], may please be 12 W.P. 6422, 1897,4072.....2012 - [ J ] stayed/suspended."
9] It is seen that at the time of hearing on interim relief, a certain statement was made before the Court by Advocate for the Respondent No. 5 to the effect that, passing of any adverse order against the petitioner by the respondent No. 5, was not imminent as the enquiry had just begun. It implied that passing of an urgent interim order was not needed. The statement has come on record. Obviously any specific order of grant of stay was not passed. Passing of final order in the enquiry thus got deferred by necessary implication and Writ Petition No. 4072 of 2011 remained pending. 10] Writ Petition No. 4072 of 2011 was heard from time to time. The Division Bench of this Court [Coram: Naresh H. Patil & T.V.Nalawade, JJ.] heard the petition and passed order on 24/11/2011 disposing the petitions and ordered that the departmental enquiry be completed etc. The text of direction is seen in para nos.8 and 9 of Order dated 24/11/2011, which reads as under,:
"8. Considering the limited issue raised before this Court and the material placed before this Court, we are of the view that the Departmental Inquiries initiated against the petitioner need not be 13 W.P. 6422, 1897,4072.....2012 - [ J ] stayed. In the facts of the case and in view of the Maharashtra State Commission for Women being seized with the complaint of the petitioner, we direct that no final order in respect of the Departmental Inquiries shall be passed by the concerned Officer without seeking permission of this Court. It is clarified that this Court has not opined on merits of the issue raised by the contesting parties. Ad- interim relief granted earlier by this Court stands vacated.
9. It is expected that the Committee appointed by the
Maharashtra State Commission for Women would complete the inquiry at the earliest. Petition stands disposed of".
11] On 24th January, 2012 the Civil Application No. 2134 of 2012 is filed in decided Writ Petition No. 4072 of 2011 by the Commissioner, Municipal Corporation, Aurangabad. It is averred therein that the departmental enquiry in the matter of charge sheet issued to the petitioner is completed and the Commissioner has prayed that he be permitted to take decision in the matter of charge sheet.
12] Thereafter, on 24/02/2012, the petitioner has filed another petition bearing Writ Petition No. 1897 of 2012, in the back-ground that the State Government had failed to take cognizance of the appeal preferred by 14 W.P. 6422, 1897,4072.....2012 - [ J ] the petitioner against the act of Commissioner in issuing charge sheet and ordering suspension. Main and interim reliefs sought in Writ Petition No. 1897 of 2012 read as follows,: "(E) By issuing Directions or Orders or any other Writ in the nature in the form of Writ of Mandamus, respondent no.1-State of Maharashtra may please be directed to hold detailed inquiry, as against respondent no.4-Mr. Bhapkar
(Commissioner at Aurangabad
Municipal Corporation) for initiating and deliberately
continuing 'Order of Suspension' and 'Departmental Inquiries', thereby depriving the petitioner from 'Legitimate Rights' to hold and resume the post of 'Legal Advisor' of respondent no.3-Corporation.
(F) Pending hearing and final disposal of this Writ Petition and pending decision on Representation- cum-Appeal dated May 09, 2011 and Representation dated February 09, 2012, by respondent no.1-State of Maharashtra, respondent no.5- Commissioner (Administrative Head) may please be prohibited from issuing any consequential Order / taking action, against petitioner, based on purported 'Inquires' initiated by Orders at EXHIBIT-F collectively of present Writ Petition" .
The Respondent Nos. 1 to 3 and the Respondent No. 5 had appeared in W.P. No. 1897 of 2012 and the Petition remained pending. Any interim order whatsoever was not passed in this petition. 15 W.P. 6422, 1897,4072.....2012 - [ J ] 13] It is seen that during pendency of the petition No. 1897 of 2012 and during pendency of the said Civil Application No. 2134 of 2012, the report of the enquiry conducted by the respondent no.1 is furnished in a sealed cover and had remained as such. After the hearing of the W.P. No. 4072 of 2011 and Civil Application No. 2134 of 2012 in the decided Writ Petition, began, said covers were opened, the reports were taken on record and its copies were supplied to the parties.
14] Writ Petition No. 6422 of 2012 is filed by the petitioner on 24th July, 2012 in the back-ground that the report of Respondent No.1 as well as Committee of Women's Commission is received.
The prayers contained in this petition are as under,:
"(B) By issuing an appropriate Writ or Orders, or Directions or by passing an appropriate Writ in the nature of Writ of Mandamus, respondent no.1-State of Maharashtra, through Principal Secretary, Urban Development
Department, Mantralaya, Mumbai may please be directed to implement the findings recorded in 'Report of Inquiry', dated 6th September, 2012 submitted by Principal Secretary, Urban Development Department, State of Maharashtra (EXH.-H), which is approved by respondent no.2- 16 W.P. 6422, 1897,4072.....2012 - [ J ] Commission for Women in its meeting dated 17th April, 2012 and recommended for necessary action, within two weeks.
(C) By issuing an appropriate Writ, in the nature of Writ of Certiorari, or Orders, or
directions, impugned 'Report of Inquiry' dated 30th January, 2012 submitted by 'Inquiry Committee' appointed by respondent no. 2- Commission for Women ( EXH.-J ), may please be quashed and set aside . (D) By issuing Directions or Orders or any other Writ in the nature in the form of Writ of Mandamus, respondent no.2-Commission for Women may please be directed to hold detailed inquiry, as against respondent no.4-Mr. Bhapkar
(Commissioner at Aurangabad
Municipal Corporation) to ascertain, does the allegation that the superior tried to cheek, putting hand on shoulders, and attempting to touched body' of a female employee at the "place of work", not constitute an act unbecoming of good conduct and behavior expected from the superior?, Is physical contact with the female employee an essential ingredient of such a charge ? Does his action being the superior against a female employee ( Petitioner) which is against moral sanctions and does not withstand test of decency and modesty amount to sexual harassment ?, taking into consideration the 'Statement on Oath' i.e. examination - in- chief submitted/filed by petitioner on 6th January, 2012, before ' Committee ' of respondent no. 2-Commission, in the light of Law declared by Hon'ble Supreme Court in case of 'Vishakha & Ors. V/s State of Rajastan & Ors.' 17 W.P. 6422, 1897,4072.....2012 - [ J ] (AIR 1997 SC-3011) and 'Apparel Export Promotion Council V/s A.K. Chopra' (AIR 1999 SC 625) and complete the same in stipulated period.
(E) Pending hearing and final disposal of this Writ Petition, respondent no. 3-Corporation may please be directed to ' allow' the petitioner to resume the duties, since the 'Order of Suspension' had lapsed, more particularly in the light of Section 56 (1) of BPMC Act and Full Bench Decision of this Hon'ble Court in case of 'Ambarish Rangshahi Patnigere V/s State of Maharashtra and Ors. (2012 (1) Mh. L.J. 900) by suspending ' Order ' dated 21st April, 2011 (purported Job Chart).
15] It is seen that the petitioner is partly satisfied with the finding of the report of the Committee appointed by the Women's Commission and dis- satisfied with part thereof. The petitioner has, therefore, prayed in W.P. No. 6422 of 2012 for suitably moulding reliefs.
16] We have scrutinized rival submissions and considered the record.
17] The questions which call for consideration while deciding these petitions are as formulated below: [A] Issue in Writ Petition 1897 of 2012:- 18 W.P. 6422, 1897,4072.....2012 - [ J ] [1] Is the petitioner entitled for the relief of quashing of charge sheet issued by Respondent No. 4/5 on the ground of lack of authority ? [2] Alternatively to prayer for quashing, is the petitioner entitled for writ of mandamus that the State Government should decide the petitioner's Appeal preferred by her before the Government on 09/02/2012 ?
[B] Issues in Writ Petition No. 6422 of 2012:- [1] Is the petitioner entitled for writ of mandamus for enforcement and implementation of the findings and observations contained in the report of the respondent no.1 dated 06/09/2012 {Annexure-"A" to the petition in W.P. No. 6422 of 2012}. [2] Is the petitioner entitled for Writ of mandamus for enforcement of the direction contained in the letter of the Women's Commission dated 30/01/2010 {Annexure-"J" at page No.154 to the W.P.No. 6422 of 2012} to the extent it favours the petitioner ?
[3] Is the petitioner entitled to 19 W.P. 6422, 1897,4072.....2012 - [ J ] the relief of Writ of certiorari for quashing the report of Committee of Women's Commission dated 30/01/2010 {appendage to Annexure-"J" to the petition} to the extent it is adverse to the petitioner holding that no "sexual harassment" was done to the petitioner on account of non observance of principles of natural justice by the Committee of Womens' Commission?
[4] Whether it is necessary to issue direction to hold detailed enquiry for the conduct of the respondent no.4 towards the petitioner's grievance against the order of suspension, charge sheet and other harassment, all being aimed at the sexual harassment of the petitioner by transferring and removing the Respondent No. 4 from the position of Respondent No. 5 ? [C] Common issue in Writ Petition No. 6422 of 2012 and Civil Application No. 2134 of 2012 in (decided) Writ Petition No. 4072 of 2011:
[1] Is it necessary to stay the departmental proceedings and action, if any, based on the enquiry report, furtherance to the charge sheet 20 W.P. 6422, 1897,4072.....2012 - [ J ] till the decision by the Womens' Commission ?
[2] Is the Commissioner of Aurangabad Municipal Corporation entitled to the relief prayed in Civil Application No. 2134 of 2012 for leave to proceed to act upon the Departmental enquiry furtherance to the charge sheet, completed by it ? [D] Issue in C.A. No. 9666 of 2012:- Is it necessary to issue any direction to the Respondent No. 4/5 to preserve the register referred to in the prayer or to issue direction for safe custody by its confiscation, etc. ?
18] In the light of various issues which we have formulated in the foregoing paragraph, the focal and common question which ultimately arises is, as to whether the writs as prayed for can be issued. Answer to all questions which fall for decision, shall depend upon the construction, exact meaning and purport of "text" of various findings namely,;-
[a] Contents in the report of the Respondent No.1 i.e. the Principal Secretary, Urban 21 W.P. 6422, 1897,4072.....2012 - [ J ] Development Department, State of Maharashtra [Annexure "H"], relevant part whereof is translated by the petitioner and kept on record at Page No. 120-E;
[b] The letter sent by the Womens' Commission forwarding the report of Justice Sindkar Committee and directing the State Govt. to take action, copy whereof is at annexure-J, page No. 154 of the paper book of W.P. No. 6422 of 2012.
[c] The "text" under challenge, in the report of Justice Sindakar [Retd.] Committee appointed by Womens' Commission, translation whereof is kept on record at Page No. 164-D to 164-L which is challenged in Writ Petition No. 6422 of 2012.
19] The report of enquiry conducted by the Secretary, Urban Development Department, respondent no.1 is Annexure-H [page No.110 to 120 of W.P.No. 6422 of 2012]. Report of the Enquiry Committee appointed by the State Women's Commission is at appendage to Annexure-J [page No.155 to 164 of W.P.No. 6422 of 2012]. 22 W.P. 6422, 1897,4072.....2012 - [ J ] 20] Since both the reports at page No. 110 to 120 and 154 to 164 are in vernacular, we thought it proper to invite its translation from the petitioner, which we had done by oral direction. Learned Advocate for the petitioner has tendered the English translation of the relevant text.
21] The translation of text for which writ of mandamus is sought in relation to respondent no.1 is now at page No.120-A in Writ Petition No.6422 of 2012. Translation of the letter sent by the Dy. Secretary of Women's Commissioner directing again at the level of the State Government is at page No.164-A. The portion contained in the report of Women's Commission, which has aggrieved the petitioner in relation to which or based on which relief of quashing is sought is seen in the translation at page No.164-E, 164-F, 164-H, 164-I, 164-J, 164-K and 164-L. 22] It appears that any dispute as regards correctness of translation does not exist. Therefore, it would be appropriate to refer to the translation as authentic and to proceed to decide the petitions. 23] Text for quashing:- The "text" from the 23 W.P. 6422, 1897,4072.....2012 - [ J ] report of the Committee of Women's Commission headed by Justice Sindkar [Retd.] is on record of W.P. No. 6422 of 2012 at Page No. 156 onwards. Its translation is on record at Page No. 164-D onwards. The observations contained in the report of this Committee which have aggrieved the petitioner are as follows:-
"In respect of complaint of Mrs. Thete, "to retain in office till late hours or to call from home", the Committee has recorded evidence of one female Peon and two male Peons. According to their evidence, they did not find that Mr. Bhapkar retained Mrs. Thete till late hours or called her in his office without there being any reason. In this regard, on verification of in and out register of keys kept with the Security Guard of Aurangabad Municipal Corporation by the Committee, it was not found that Mrs. Thete and Mr. Bhapkar stayed in the office till late hours, for one and the same time, because an entry is made in the said register in respect of the time with date of obtaining and returning the key. On the said basis the aforesaid matter becomes clear. Therefore, no evidence was found in the entry register in support of the allegation that Mrs. Thete was retained till late hours, was called from 24 W.P. 6422, 1897,4072.....2012 - [ J ] home and even called to the office when she was on leave.
Apart from this, it is also a claim of Mrs. Thete that earlier Commissioners of the Municipal Corporation namely, Mr. Asim Gupta and Mr. Deelip Bank have appreciated her work and there was no objection in respect of her capability. However, on perusal of the documents produced by Mr. Bhapkar along with his explanation, it is found that the earlier Municipal Commissioners have issued a memorandum to her in respect of her unsatisfactory performance. As such, the aforesaid claim of Mrs. Thete is also found to be false.
Likewise, on inspection of the register maintained in the Municipal Corporation with regard to the office keys, there appeared no entry that the chambers of Mrs. Thete and Mr. Bhapkar were open till late hours at the same time.
The Committee does not feel it proper to draw conclusion on the basis of evidence regarding Mr. Bhapkar having sexually harassed Mrs. Thete that the action initiated by Mr. Bhapkar against Mrs. Thete was with a view to cause her sexual harassment".
24] The translation of the text for which writ of 25 W.P. 6422, 1897,4072.....2012 - [ J ] mandamus is sought which is seen at page No.120-A, reads as under:
"From the aforesaid discussion, it appears that for want of evidence, it has not been proved beyond reasonable doubt that Dr. Bhapkar, Commissioner, Municipal Corporation, had sexually harassed Smt.Aparna Thete, Law Officer of the Municipal Corporation. If required, the State Women Commission can, at its level, make additional enquiry. However, as mentioned in Schedule "A" and Schedule "B". It was unjustifiable or unnecessary for Mr.Bhapkar to issue show cause notices time and again to Smt.Thete in regard to administrative matters and in certain matters, such action was started without strong written/documentary evidence. Likewise, there is sufficient scope to draw an inference that it was also harsh/rigorous action to divide the work of Law Officer and to allot important part thereof to
subordinate Officer, namely, Law Assistant. Since Smt.Thete had doubt about the intention of Dr.Bhapkar, it was obvious for her to have a feeling that the aforesaid administrative action was being taken to cause mental harassment to her.
Sd/-
Principal Secretary (2)
Urban Development Department
[quoted from page No. 120-A of W.P.No.6422 of 2012]".
[Underlining is supplied for emphasis and convenience for reference].
26 W.P. 6422, 1897,4072.....2012 - [ J ] 25] The portion for which writ of mandamus is sought in relation to the report of Women's Commission is the text at page No.164-B. The relevant portion is quoted below,:
" Therefore, as per the decision of the Commission, the said report is being sent to your department for appropriate action, with a request to submit action taken report to the Commission as per Section 12(2)(3) of the Maharashtra State Commission for Women Act, 1993.
Yours faithfully,
Sd/-
(K.G.Pandit)
Deputy Secretary
[quoted from page No. 164-B of W.P.No.6422 of 2012]"
26] In so far as the observations contained in the report which are sought to be quashed, those have an effect of relying on certain evidence, resulting in dis- believing the petitioner's version that she was harassed.
Petitioner's grievance in relation to observations of the said Committee are as follows:- [1] The contents of affidavit filed by the petitioner were not considered.
27 W.P. 6422, 1897,4072.....2012 - [ J ] [2] The evidence relied upon by the Committee of the Women's Commission is recorded in absence of the petitioner.
[3] The evidence tendered by Mr. Bhapkar, if any, was received behind the back of the petitioner. Reliance by Women's Commission on evidence produced by Mr. Bhapkar is without notice to the petitioner in denial to petitioner an opportunity to refute it. [4] Evidence collected by the member of the Committee, part of Justice Sindhakar Commission, had examined certain witnesses and heard them and petitioner had no opportunity to cross examine them.
[5] The Committee has drawn an inference that:-
[i] Petitioner has failed to prove sexual harassment.
[ii] Petitioner had failed to bring evidence.
[6] However, these conclusions are reached without giving to the petitioner a fair chance 28 W.P. 6422, 1897,4072.....2012 - [ J ] to plead her case and opportunity to refute and rebut the respondent's defence. 27] Petitioner has placed reliance on certain Judgments to show:-
[a] The principles of natural justice apply in the process of decision making by Women's Commission.
[b] The Commission would be exercising quasi judicial authority and, therefore, it has all trappings of a quasi judicial forum. 28] As has been argued by the learned Advocate for the petitioner, while seeking enforcement of the Commission, the Women's Commission has all powers of the Court while conducting enquiry.
The corollary of these submissions indicating that Women's Commission has all trappings of judicial or quasi judicial forum is that if the petitioner is raising any controversy as regards fact of matter of what has occured during the proceedings before the Committee of Women's Commission or Women's Commission. Thereby she is raising dispute as to what transpired during the enquiry before a quasi judicial forum. 29 W.P. 6422, 1897,4072.....2012 - [ J ] 29] A dispute or controversy as regards what had transpired before a Court/Tribunal or quasi judicial forum or forum having all powers and trappings of Court can better and always be raised before the same forum by a motion for speaking to the minutes, review or in any other analogous way. A forum having judicial trappings can not be scandalized or vandalized by bringing for agitating facts before a writ Court as a first Court of facts. Therefore, right course for the petitioner is to approach the Women's Commission, who is bound to be in full session and control of facts and record. It could afforded to the petitioner opportunity de novo if satisfied about factualness of petitioner's grievance, if case therefor could be made out by the petitioner. 30] Therefore, the petitioner should have approached the Women's Commission with a request for reopening of the enquiry and re-hearing by placing on record all that had transpired before the Women's Commission between the petitioner and the Committee. Petitioner has failed to adopt this course. Therefore, it would not be proper for this Court to sit in a Judgment to judge as to what transpired during the proceedings of the Enquiry Committee of the Women's Commission. This is particularly so, when personal 30 W.P. 6422, 1897,4072.....2012 - [ J ] malice and bias against the members of Committee of Women's Commission is not a ground underlying the imputations of violation of principles of natural justice.
31] The discipline of quasi judicial and special forums requires that any grievance as to what has transpired during the process of hearing before any Committee or Commission adjudicating in quasi judicial or like manner, ought to be agitated before the same authority. Moreover, petitioner has failed to prove as to how petitioner had kept the track of further proceedings beyond sheer statement on oath. No efforts were made to secure copies of record to rely. 32] We, therefore, deem it appropriate to decline to entertain any grievance in nature of present one, in exercise of Writ Petitions. More over, even if this Court directs the Women's Commission to re-examine the matter, petitioner has essentially to go before the same Commission. Therefore, appropriate course is not to permit the petitioner scandalize the prestige and the authority at the Women's Commission to leave the petitioner to choose her course of action. 31 W.P. 6422, 1897,4072.....2012 - [ J ] 33] About mandamus:-
As regards the aspect of petitioner's prayer for writ of mandamus is concerned, such issue once properly framed, is going to depend upon the petitioner's proving that by virtue of the report of the Respondent NO.1 and the direction of the Womens' Commission and enforceable right as accrued in favour of the petitioner. Perusal of findings given by the Respondent No.1 reveals that the observations which may be construed to be favourable to the petitioner are that the action of Respondent No. 4 is harsh. The underlined portion in the copies contained and para No. 24 discloses that on the point of "sexual harassment", the findings recorded by the Respondent NO.1 are eloquently unfavourable to the petitioner.
34] As regards the direction to enforce the report purportedly given by the Womens' Commission is concerned, it is obvious that the language contained in the letter of Dy. Secretary which is quoted in foregoing para No.22 when considered in its entirety i.e. along with the report of the Womens' Commission, reveals to be in the nature of formated letter than a direction issued consciously and deliberately. What is to be enforced is the report of the Committee. The report of the 32 W.P. 6422, 1897,4072.....2012 - [ J ] Committee headed by Justice Sindakar [Retd.] is unfavourable to the petitioner and in no ambiguous terms, the petitioner has sought for quashing the same. In this back-ground, what is to be enforced by writ of mandamus as a right of the petitioner and obligation of the respondent, is not even fictional. 35] This Court had already applied mind in Civil Application No.2134 of 2012 in (decided) Writ Petition No. 4072 of 2011, had allowed the enquiry to proceed and stayed the passing of final order. Thus, this Court has in unambiguous terms declined to stay the departmental enquiry, pending decision by the Womens' Commission. 36] Now, the Women's Commission has already concluded. Petitioner has grievance against the decision of the Women's Commission. The petitioner claims that decision by the Committee of Women's Commission is erroneous, and that it deserves to be set aside, on certain obvious fact which we have noticed from record it is evident that for the first time the petitioner had voiced about "sexual harassment", only after she was served the charge sheet and not even once before that date.
33 W.P. 6422, 1897,4072.....2012 - [ J ] 37] The second Writ Petition was filed by the petitioner in the back-ground that the Appeal filed by her has not been decided by the State Government. Perusal of the record shows that after filing of Appeal before the State Government, the petitioner has not pursued it, mostly because the protection ordered in decided Writ Petition [ W.P. No. 4072 of 2011] was governing the field. It is evident that the petitioner has not shown active interest in challenging the Government's act of indolence. The W.P. No. 1897 of 2012 was filed only after the Commissioner filed application for leave to take decision in the decided Writ Petition No.4072 of 2011. . 38] It is also evident that W.P. No. 1897 of 2012 was filed in the back-ground that Standing Committee before whom an appeal or challenge to the orders of Commissioner would lie, was not in existence. 39] It appears that it is an admitted position that when this petitioner is being heard, the Standing Committee has come into existence. Admittedly, Standing committee is an appellate forum against the order as may be passed by the Commissioner. Now, order passed by the Commissioner is capable of challenge before the 34 W.P. 6422, 1897,4072.....2012 - [ J ] Standing Committee. In this back-ground a direction to the State Government to expedite the hearing of Appeal, will be wholly inappropriate. The appeal filed by the petitioner before the State Govt. has become infructuous due to availability of Standing Committee and petitioner may have to file appeal before the Standing Committee if the order is adverse and if she chooses and is so advised.
40] It is a matter of record that in W.P. No.4072 of 2011 this Court had declined to stay the proceedings of departmental enquiry though proceedings of Complaint filed by petitioner were in progress before the Women's Commission.
41] Now, when the report of respondent no. 1 and of Women's Commission are unfavourable to the petitioner, all the more, there are no grounds whatsoever for justification for staying further action by the Commissioner.
42] The issues framed by this Court, which are seen arising in the petition, therefore, turn superfluous and will have to be answered with a common finding namely in view that:
35 W.P. 6422, 1897,4072.....2012 - [ J ] [a] The report of the respondent No. 1 though treated by the petitioner to be favourable to her, is in fact not favourable to her. [b] The expression of opinion by respondent No. 1 that, " petitioner was likely to feel that the actions taken by respondent No. 4 are because of his attitude of sexual harassment" or an expression of the respondent No. 1 that the attitude of respondent No. 4 in withdrawing the work etc. was harsh, is an expression of opinion and can not be regarded as a finding favourable to the petitioner. [c] These findings by Respondent No.1 can not be regarded or denoted as a finding favourable to the petitioner empowering the State Govt. to interfere in the matter, as it pertains to a subject of day to day administrative business of Chief executive to be conducted in own authority and discretion by a local self Govt. authority having constitutional status.
[d] The forwarding letter sent by the Womens' Commission sending the report of the Committee 36 W.P. 6422, 1897,4072.....2012 - [ J ] headed by Justice Sindkar [Retd.] and giving direction to the State Govt. to take action thereupon and to inform the Womens' Commission about the out-come appears to be in the nature of routine forwarding letter.
[e] The exact force of the direction contained in said forwarding letter will have to be construed in the light of the text of report of the Committee headed by Justice Sindkar [Retd.], which even according to petitioner is unfavourable to her. [f] Even the petitioner is not happy with Justice Sindkar [Retd.] Committee's report and, therefore, the said forwarding letter incorporating direction, can not be read to contain the mandatory direction.
[g] The direction contained in this forwarding letter does not carry the force of imperativeness when seen in totality. 43] Therefore, the petitioner is not entitled for reliefs sought by her. We, therefore, hold that:- [a] The petitioner has failed to demonstrate 37 W.P. 6422, 1897,4072.....2012 - [ J ] existence of legal right emerging from the report of the respondent no. 1 or women's commission.
[b] Petitioner has failed to demonstrate that the State Govt. has failed to discharge a reciprocal or corresponding obligation. [c] Issue of writ of mandamus and writ of certiorari as sought for can not be issued. [d] Issue of writ of certiorari for quashing Commission's report is not justified in the back-ground that the petitioner has raised dispute as to what has transpired during the conduct of proceedings before the Womens' Commission. Such dispute is always liable to be gone into by the Womens' Commission if raised by the petitioner by appropriate application or proceedings.
44] Now, the imperative course for the petitioner as sole path reveals to be:
[1] petitioner may have to go before the Women's Commission to represent her grievance agitated before this Court against the 38 W.P. 6422, 1897,4072.....2012 - [ J ] proceedings and the report of the Commission. [2] in view of availability of Standing Committee, petitioner may have to Appeal before the Standing Committee against the act of respondent No. 4 of issuing charge sheet and final order if it be adverse.
[3] that the statutory Appeal against any order passed by the Commissioner is available before the Standing Committee and then General Body.
45] From the view and conclusions noted in foregoing paragraphs, issue framed by this Court for adjudication will have to be answered adverse to the petitioner.
46] In light of discussion and conclusions as recorded herein before, various issues framed by this Court are answered as follows:-
Issue No.A-[1]:-
Petitioner is not entitled to the relief of quashing of charge sheet.
We however clarify that the question of legality of charge sheet is not decided by us. Issue No.A-[2]:-
39 W.P. 6422, 1897,4072.....2012 - [ J ] A writ of mandamus can not lie for direction to the State to decide petitioner's Appeal in the back-ground that the appellate forum is now locally available [as provided by statute].
Issue No.B-[1] to [3]:-
Petitioner is not entitled to writ of mandamus and writ of certiorari as prayed. Issue No.B-[4]:-
Petitioner is not entitled for the direction against the Commission for the enquiry as desired unless the Commission's order is reviewed, set aside, etc. Issue No.C-[1]:-
In view of the fact that the report of the Womens' Commission is adverse to the petitioner, she is not entitled for the relief.
Issue No.C-[2]:-
The Commissioner, Municipal Corporation, Aurangabad is entitled to take further action. The action, however shall remain in abeyance for 30 days from actual date of service or 40 W.P. 6422, 1897,4072.....2012 - [ J ] till the first meeting of Standing Committee, who may be competent and who may hear the Appeal as per the order passed by the Commissioner.
Issue No.D:-
It shall suffice if the petitioner is granted inspection of the registers and supplied true copy of the relevant part thereof.
47] We wish to record that learned Advocate Mr. R.N.Dhorde appearing for Respondent Nos.4 and 5 has made statement before this Court that let the decision in the matter of departmental enquiry be taken by him and it shall be subject to the final decision or conclusion as may be reached by the General Body. In this view of the fact of the matter, all the more there is no propriety whatsoever of granting any protection sought in the petition.
48] In the result, we pass order as follows:- [a] Writ Petition No. 1897 of 2012 is dismissed. Rule is discharged.
[b] Writ Petition No. 6422 of 2012 is dismissed. Rule is discharged.
41 W.P. 6422, 1897,4072.....2012 - [ J ] [c] Civil Application No. 9666 of 2012 in Writ Petition No. 6422 of 2012 is partly allowed to the extent that the petitioner shall apply for inspection and then specify for supply of photo copy of relevant pages of register within seven (7) days. Those shall be supplied by the respondent No.4.
[d] Civil Application No. 2134 of 2012 in (decided) Writ Petition No. 4072 of 2011 is partly allowed in terms of prayer clause "B".
It is clarified that the decision which may be reached in the matter of the charge sheet served by the respondent No.4 against the petitioner shall remain in abeyance for 15 days.
49] In the circumstances, parties are directed to bear own costs.
Print Page
Bombay High Court
Aparna D/O Krishnakumar Thete @ vs The State Of Maharashtra on 27 September, 2012
Bench: A. H. Joshi, S.V. Gangapurwala
citation;2012(1)MH L J 277
1] Heard the learned Advocates at length. 2] Above two (2) Writ Petitions and Civil Application in the decided Writ Petition No. 4072 of 2011 were heard together from time to time. Those were reserved for orders.
3] Thereafter, learned Advocate for the petitioner made a motion for taking cases on board,as the petitioner desired to place on record certain documents in Writ Petition No. 6422 of 2012. Therefore, the Writ Petitions were taken on board. The petitioner has sought leave to amend the petition. Leave was granted. Petitioner has added certain averments and certain documents. On the date of hearing, petitioner has also filed Civil Application No. 9666 of 2012 in Writ Petition No. 6422 of 2012, by which the petitioner has prayed for taking in safe custody certain registers which constitutes documentary evidence of petitioner's grievance against the Respondent No. 4. This application was heard with the Writ Petitions. 4] Two (2) Writ Petitions and Civil Applications 8 W.P. 6422, 1897,4072.....2012 - [ J ] are heard and are decided by this common Judgment and Order.
5] Petitioner has pursued these petitions with utmost persuasiveness. Voluminous record is produced as annexures. In these premises, detailed narration of facts was felt necessary. However, after considering the record and submissions, we have noticed that the compass of controversy is extremely narrow. 6] Facts relevant to the controversy are narrated as below:
[a] Petitioner is an employee of respondent no.3 - Corporation.
[b] According to the petitioner, Appointing, Disciplinary, and Removing Authority of the petitioner is the Municipal Corporation i.e. General Body.
[c] The scale of Pay applicable to the post of Legal Adviser shown in Recruitment Rules is `2,200/- to `3,750/- [Rupees Twenty Two Hundred to Thirty Seven Hundred Fifty only] as revised from time to time.
9 W.P. 6422, 1897,4072.....2012 - [ J ] [d] The scale of Pay of petitioner is higher than the scale of Pay of the post of Dy. Commissioner. Therefore, according to the petitioner, the competent authority to appoint, initiate and conduct disciplinary proceedings and remove, is the Municipal Corporation and not the Commissioner. 7] Petitioner's grievance is as follows: [a] The respondent no.4, is the incumbent, holding the post of the respondent no.5-the Municipal Commissioner, Aurangabad. [b] Respondent No.4 has behaved with and dealt with and/or treated the petitioner in such manner that his acts fit into the mischief as defined by the term "sexual harassment" of a female employee working in his office and under his control, under the Womens' Commission Act.
[c] The conduct of the Respondent No.4 in giving various notices, apart from his other objectionable conduct are and do amount to "sexual harassment".
10 W.P. 6422, 1897,4072.....2012 - [ J ] [d] The issuance of charge sheet to the petitioner is culmination of respondent no.4's act of "sexual harassment".
[e] As the Petitioner was aggrieved by the conduct of the Respondent No.4, the petitioner had moved two authorities and prayed for certain relief from different authorities, namely,:-
[i] Authority:- State Women Commission. Purpose:- For challenging and complaining that the act of issuing charge sheet and all other acts of the respondent no.4, which were deliberate acts of "sexual harassment" to the petitioner and for direction to the State to take action against the Respondent No.4.
[ii] Authority:- The State Government. Purpose:- For challenging the competence of the Municipal Commissioner in issuing charge sheet and seeking to quash and set aside the entire enquiry, by filing an appeal under statutory rules.
8] In the background that the petitioner's 11 W.P. 6422, 1897,4072.....2012 - [ J ] Complaint filed by her before Women's Commission was pending, petitioner filed a Writ Petition No. 4072 of 2011 and prayed therein for reliefs, which read as follows:
" Main relief:- (B) By issuing an appropriate Writ, Orders, Directions or by passing an appropriate order in the nature of Writ of mandamus, respondent no.2 - State Commission for Women may please be directed to constitute the inquiry Committee, as contemplated in directions of Hon'ble Supreme Court in case of Vishaka's case [AIR 1997 SC - 3011] read with Section 8 of the Maharashtra State Commission for Women Act, 1993 [MAH. Act No. XV of 1993], and complete the same within three months.
(C) By issuing an appropriate Writ, Orders, Directions or by passing an appropriate order in the nature of Writ of Mandamus, the on-going departmental inquiries, initiated after preliminary complaint dated March 16, 2011 which are initiated by respondent no. 4-Mr. Bhapkar, by letters dated May 10, 2011 (Outward No. MC/EST-1/2011/693 and No. MC/EST-1/2011/695) and being
proceeded assuming applicability of 'the Maharashtra Civil Services Rules', may please be suspended till submission of report of inquiry by respondent no. 2-Commission."
Interim relief:-
"(D) Pending hearing and final disposal of this Writ Petition, further proceedings in 'Departmental Inquiries', initiated by Letters dated May 10, 2011 [Outward No. MC/EST-1/2011/693 and No. MC/EST-1/2011/695], may please be 12 W.P. 6422, 1897,4072.....2012 - [ J ] stayed/suspended."
9] It is seen that at the time of hearing on interim relief, a certain statement was made before the Court by Advocate for the Respondent No. 5 to the effect that, passing of any adverse order against the petitioner by the respondent No. 5, was not imminent as the enquiry had just begun. It implied that passing of an urgent interim order was not needed. The statement has come on record. Obviously any specific order of grant of stay was not passed. Passing of final order in the enquiry thus got deferred by necessary implication and Writ Petition No. 4072 of 2011 remained pending. 10] Writ Petition No. 4072 of 2011 was heard from time to time. The Division Bench of this Court [Coram: Naresh H. Patil & T.V.Nalawade, JJ.] heard the petition and passed order on 24/11/2011 disposing the petitions and ordered that the departmental enquiry be completed etc. The text of direction is seen in para nos.8 and 9 of Order dated 24/11/2011, which reads as under,:
"8. Considering the limited issue raised before this Court and the material placed before this Court, we are of the view that the Departmental Inquiries initiated against the petitioner need not be 13 W.P. 6422, 1897,4072.....2012 - [ J ] stayed. In the facts of the case and in view of the Maharashtra State Commission for Women being seized with the complaint of the petitioner, we direct that no final order in respect of the Departmental Inquiries shall be passed by the concerned Officer without seeking permission of this Court. It is clarified that this Court has not opined on merits of the issue raised by the contesting parties. Ad- interim relief granted earlier by this Court stands vacated.
9. It is expected that the Committee appointed by the
Maharashtra State Commission for Women would complete the inquiry at the earliest. Petition stands disposed of".
11] On 24th January, 2012 the Civil Application No. 2134 of 2012 is filed in decided Writ Petition No. 4072 of 2011 by the Commissioner, Municipal Corporation, Aurangabad. It is averred therein that the departmental enquiry in the matter of charge sheet issued to the petitioner is completed and the Commissioner has prayed that he be permitted to take decision in the matter of charge sheet.
12] Thereafter, on 24/02/2012, the petitioner has filed another petition bearing Writ Petition No. 1897 of 2012, in the back-ground that the State Government had failed to take cognizance of the appeal preferred by 14 W.P. 6422, 1897,4072.....2012 - [ J ] the petitioner against the act of Commissioner in issuing charge sheet and ordering suspension. Main and interim reliefs sought in Writ Petition No. 1897 of 2012 read as follows,: "(E) By issuing Directions or Orders or any other Writ in the nature in the form of Writ of Mandamus, respondent no.1-State of Maharashtra may please be directed to hold detailed inquiry, as against respondent no.4-Mr. Bhapkar
(Commissioner at Aurangabad
Municipal Corporation) for initiating and deliberately
continuing 'Order of Suspension' and 'Departmental Inquiries', thereby depriving the petitioner from 'Legitimate Rights' to hold and resume the post of 'Legal Advisor' of respondent no.3-Corporation.
(F) Pending hearing and final disposal of this Writ Petition and pending decision on Representation- cum-Appeal dated May 09, 2011 and Representation dated February 09, 2012, by respondent no.1-State of Maharashtra, respondent no.5- Commissioner (Administrative Head) may please be prohibited from issuing any consequential Order / taking action, against petitioner, based on purported 'Inquires' initiated by Orders at EXHIBIT-F collectively of present Writ Petition" .
The Respondent Nos. 1 to 3 and the Respondent No. 5 had appeared in W.P. No. 1897 of 2012 and the Petition remained pending. Any interim order whatsoever was not passed in this petition. 15 W.P. 6422, 1897,4072.....2012 - [ J ] 13] It is seen that during pendency of the petition No. 1897 of 2012 and during pendency of the said Civil Application No. 2134 of 2012, the report of the enquiry conducted by the respondent no.1 is furnished in a sealed cover and had remained as such. After the hearing of the W.P. No. 4072 of 2011 and Civil Application No. 2134 of 2012 in the decided Writ Petition, began, said covers were opened, the reports were taken on record and its copies were supplied to the parties.
14] Writ Petition No. 6422 of 2012 is filed by the petitioner on 24th July, 2012 in the back-ground that the report of Respondent No.1 as well as Committee of Women's Commission is received.
The prayers contained in this petition are as under,:
"(B) By issuing an appropriate Writ or Orders, or Directions or by passing an appropriate Writ in the nature of Writ of Mandamus, respondent no.1-State of Maharashtra, through Principal Secretary, Urban Development
Department, Mantralaya, Mumbai may please be directed to implement the findings recorded in 'Report of Inquiry', dated 6th September, 2012 submitted by Principal Secretary, Urban Development Department, State of Maharashtra (EXH.-H), which is approved by respondent no.2- 16 W.P. 6422, 1897,4072.....2012 - [ J ] Commission for Women in its meeting dated 17th April, 2012 and recommended for necessary action, within two weeks.
(C) By issuing an appropriate Writ, in the nature of Writ of Certiorari, or Orders, or
directions, impugned 'Report of Inquiry' dated 30th January, 2012 submitted by 'Inquiry Committee' appointed by respondent no. 2- Commission for Women ( EXH.-J ), may please be quashed and set aside . (D) By issuing Directions or Orders or any other Writ in the nature in the form of Writ of Mandamus, respondent no.2-Commission for Women may please be directed to hold detailed inquiry, as against respondent no.4-Mr. Bhapkar
(Commissioner at Aurangabad
Municipal Corporation) to ascertain, does the allegation that the superior tried to cheek, putting hand on shoulders, and attempting to touched body' of a female employee at the "place of work", not constitute an act unbecoming of good conduct and behavior expected from the superior?, Is physical contact with the female employee an essential ingredient of such a charge ? Does his action being the superior against a female employee ( Petitioner) which is against moral sanctions and does not withstand test of decency and modesty amount to sexual harassment ?, taking into consideration the 'Statement on Oath' i.e. examination - in- chief submitted/filed by petitioner on 6th January, 2012, before ' Committee ' of respondent no. 2-Commission, in the light of Law declared by Hon'ble Supreme Court in case of 'Vishakha & Ors. V/s State of Rajastan & Ors.' 17 W.P. 6422, 1897,4072.....2012 - [ J ] (AIR 1997 SC-3011) and 'Apparel Export Promotion Council V/s A.K. Chopra' (AIR 1999 SC 625) and complete the same in stipulated period.
(E) Pending hearing and final disposal of this Writ Petition, respondent no. 3-Corporation may please be directed to ' allow' the petitioner to resume the duties, since the 'Order of Suspension' had lapsed, more particularly in the light of Section 56 (1) of BPMC Act and Full Bench Decision of this Hon'ble Court in case of 'Ambarish Rangshahi Patnigere V/s State of Maharashtra and Ors. (2012 (1) Mh. L.J. 900) by suspending ' Order ' dated 21st April, 2011 (purported Job Chart).
15] It is seen that the petitioner is partly satisfied with the finding of the report of the Committee appointed by the Women's Commission and dis- satisfied with part thereof. The petitioner has, therefore, prayed in W.P. No. 6422 of 2012 for suitably moulding reliefs.
16] We have scrutinized rival submissions and considered the record.
17] The questions which call for consideration while deciding these petitions are as formulated below: [A] Issue in Writ Petition 1897 of 2012:- 18 W.P. 6422, 1897,4072.....2012 - [ J ] [1] Is the petitioner entitled for the relief of quashing of charge sheet issued by Respondent No. 4/5 on the ground of lack of authority ? [2] Alternatively to prayer for quashing, is the petitioner entitled for writ of mandamus that the State Government should decide the petitioner's Appeal preferred by her before the Government on 09/02/2012 ?
[B] Issues in Writ Petition No. 6422 of 2012:- [1] Is the petitioner entitled for writ of mandamus for enforcement and implementation of the findings and observations contained in the report of the respondent no.1 dated 06/09/2012 {Annexure-"A" to the petition in W.P. No. 6422 of 2012}. [2] Is the petitioner entitled for Writ of mandamus for enforcement of the direction contained in the letter of the Women's Commission dated 30/01/2010 {Annexure-"J" at page No.154 to the W.P.No. 6422 of 2012} to the extent it favours the petitioner ?
[3] Is the petitioner entitled to 19 W.P. 6422, 1897,4072.....2012 - [ J ] the relief of Writ of certiorari for quashing the report of Committee of Women's Commission dated 30/01/2010 {appendage to Annexure-"J" to the petition} to the extent it is adverse to the petitioner holding that no "sexual harassment" was done to the petitioner on account of non observance of principles of natural justice by the Committee of Womens' Commission?
[4] Whether it is necessary to issue direction to hold detailed enquiry for the conduct of the respondent no.4 towards the petitioner's grievance against the order of suspension, charge sheet and other harassment, all being aimed at the sexual harassment of the petitioner by transferring and removing the Respondent No. 4 from the position of Respondent No. 5 ? [C] Common issue in Writ Petition No. 6422 of 2012 and Civil Application No. 2134 of 2012 in (decided) Writ Petition No. 4072 of 2011:
[1] Is it necessary to stay the departmental proceedings and action, if any, based on the enquiry report, furtherance to the charge sheet 20 W.P. 6422, 1897,4072.....2012 - [ J ] till the decision by the Womens' Commission ?
[2] Is the Commissioner of Aurangabad Municipal Corporation entitled to the relief prayed in Civil Application No. 2134 of 2012 for leave to proceed to act upon the Departmental enquiry furtherance to the charge sheet, completed by it ? [D] Issue in C.A. No. 9666 of 2012:- Is it necessary to issue any direction to the Respondent No. 4/5 to preserve the register referred to in the prayer or to issue direction for safe custody by its confiscation, etc. ?
18] In the light of various issues which we have formulated in the foregoing paragraph, the focal and common question which ultimately arises is, as to whether the writs as prayed for can be issued. Answer to all questions which fall for decision, shall depend upon the construction, exact meaning and purport of "text" of various findings namely,;-
[a] Contents in the report of the Respondent No.1 i.e. the Principal Secretary, Urban 21 W.P. 6422, 1897,4072.....2012 - [ J ] Development Department, State of Maharashtra [Annexure "H"], relevant part whereof is translated by the petitioner and kept on record at Page No. 120-E;
[b] The letter sent by the Womens' Commission forwarding the report of Justice Sindkar Committee and directing the State Govt. to take action, copy whereof is at annexure-J, page No. 154 of the paper book of W.P. No. 6422 of 2012.
[c] The "text" under challenge, in the report of Justice Sindakar [Retd.] Committee appointed by Womens' Commission, translation whereof is kept on record at Page No. 164-D to 164-L which is challenged in Writ Petition No. 6422 of 2012.
19] The report of enquiry conducted by the Secretary, Urban Development Department, respondent no.1 is Annexure-H [page No.110 to 120 of W.P.No. 6422 of 2012]. Report of the Enquiry Committee appointed by the State Women's Commission is at appendage to Annexure-J [page No.155 to 164 of W.P.No. 6422 of 2012]. 22 W.P. 6422, 1897,4072.....2012 - [ J ] 20] Since both the reports at page No. 110 to 120 and 154 to 164 are in vernacular, we thought it proper to invite its translation from the petitioner, which we had done by oral direction. Learned Advocate for the petitioner has tendered the English translation of the relevant text.
21] The translation of text for which writ of mandamus is sought in relation to respondent no.1 is now at page No.120-A in Writ Petition No.6422 of 2012. Translation of the letter sent by the Dy. Secretary of Women's Commissioner directing again at the level of the State Government is at page No.164-A. The portion contained in the report of Women's Commission, which has aggrieved the petitioner in relation to which or based on which relief of quashing is sought is seen in the translation at page No.164-E, 164-F, 164-H, 164-I, 164-J, 164-K and 164-L. 22] It appears that any dispute as regards correctness of translation does not exist. Therefore, it would be appropriate to refer to the translation as authentic and to proceed to decide the petitions. 23] Text for quashing:- The "text" from the 23 W.P. 6422, 1897,4072.....2012 - [ J ] report of the Committee of Women's Commission headed by Justice Sindkar [Retd.] is on record of W.P. No. 6422 of 2012 at Page No. 156 onwards. Its translation is on record at Page No. 164-D onwards. The observations contained in the report of this Committee which have aggrieved the petitioner are as follows:-
"In respect of complaint of Mrs. Thete, "to retain in office till late hours or to call from home", the Committee has recorded evidence of one female Peon and two male Peons. According to their evidence, they did not find that Mr. Bhapkar retained Mrs. Thete till late hours or called her in his office without there being any reason. In this regard, on verification of in and out register of keys kept with the Security Guard of Aurangabad Municipal Corporation by the Committee, it was not found that Mrs. Thete and Mr. Bhapkar stayed in the office till late hours, for one and the same time, because an entry is made in the said register in respect of the time with date of obtaining and returning the key. On the said basis the aforesaid matter becomes clear. Therefore, no evidence was found in the entry register in support of the allegation that Mrs. Thete was retained till late hours, was called from 24 W.P. 6422, 1897,4072.....2012 - [ J ] home and even called to the office when she was on leave.
Apart from this, it is also a claim of Mrs. Thete that earlier Commissioners of the Municipal Corporation namely, Mr. Asim Gupta and Mr. Deelip Bank have appreciated her work and there was no objection in respect of her capability. However, on perusal of the documents produced by Mr. Bhapkar along with his explanation, it is found that the earlier Municipal Commissioners have issued a memorandum to her in respect of her unsatisfactory performance. As such, the aforesaid claim of Mrs. Thete is also found to be false.
Likewise, on inspection of the register maintained in the Municipal Corporation with regard to the office keys, there appeared no entry that the chambers of Mrs. Thete and Mr. Bhapkar were open till late hours at the same time.
The Committee does not feel it proper to draw conclusion on the basis of evidence regarding Mr. Bhapkar having sexually harassed Mrs. Thete that the action initiated by Mr. Bhapkar against Mrs. Thete was with a view to cause her sexual harassment".
24] The translation of the text for which writ of 25 W.P. 6422, 1897,4072.....2012 - [ J ] mandamus is sought which is seen at page No.120-A, reads as under:
"From the aforesaid discussion, it appears that for want of evidence, it has not been proved beyond reasonable doubt that Dr. Bhapkar, Commissioner, Municipal Corporation, had sexually harassed Smt.Aparna Thete, Law Officer of the Municipal Corporation. If required, the State Women Commission can, at its level, make additional enquiry. However, as mentioned in Schedule "A" and Schedule "B". It was unjustifiable or unnecessary for Mr.Bhapkar to issue show cause notices time and again to Smt.Thete in regard to administrative matters and in certain matters, such action was started without strong written/documentary evidence. Likewise, there is sufficient scope to draw an inference that it was also harsh/rigorous action to divide the work of Law Officer and to allot important part thereof to
subordinate Officer, namely, Law Assistant. Since Smt.Thete had doubt about the intention of Dr.Bhapkar, it was obvious for her to have a feeling that the aforesaid administrative action was being taken to cause mental harassment to her.
Sd/-
Principal Secretary (2)
Urban Development Department
[quoted from page No. 120-A of W.P.No.6422 of 2012]".
[Underlining is supplied for emphasis and convenience for reference].
26 W.P. 6422, 1897,4072.....2012 - [ J ] 25] The portion for which writ of mandamus is sought in relation to the report of Women's Commission is the text at page No.164-B. The relevant portion is quoted below,:
" Therefore, as per the decision of the Commission, the said report is being sent to your department for appropriate action, with a request to submit action taken report to the Commission as per Section 12(2)(3) of the Maharashtra State Commission for Women Act, 1993.
Yours faithfully,
Sd/-
(K.G.Pandit)
Deputy Secretary
[quoted from page No. 164-B of W.P.No.6422 of 2012]"
26] In so far as the observations contained in the report which are sought to be quashed, those have an effect of relying on certain evidence, resulting in dis- believing the petitioner's version that she was harassed.
Petitioner's grievance in relation to observations of the said Committee are as follows:- [1] The contents of affidavit filed by the petitioner were not considered.
27 W.P. 6422, 1897,4072.....2012 - [ J ] [2] The evidence relied upon by the Committee of the Women's Commission is recorded in absence of the petitioner.
[3] The evidence tendered by Mr. Bhapkar, if any, was received behind the back of the petitioner. Reliance by Women's Commission on evidence produced by Mr. Bhapkar is without notice to the petitioner in denial to petitioner an opportunity to refute it. [4] Evidence collected by the member of the Committee, part of Justice Sindhakar Commission, had examined certain witnesses and heard them and petitioner had no opportunity to cross examine them.
[5] The Committee has drawn an inference that:-
[i] Petitioner has failed to prove sexual harassment.
[ii] Petitioner had failed to bring evidence.
[6] However, these conclusions are reached without giving to the petitioner a fair chance 28 W.P. 6422, 1897,4072.....2012 - [ J ] to plead her case and opportunity to refute and rebut the respondent's defence. 27] Petitioner has placed reliance on certain Judgments to show:-
[a] The principles of natural justice apply in the process of decision making by Women's Commission.
[b] The Commission would be exercising quasi judicial authority and, therefore, it has all trappings of a quasi judicial forum. 28] As has been argued by the learned Advocate for the petitioner, while seeking enforcement of the Commission, the Women's Commission has all powers of the Court while conducting enquiry.
The corollary of these submissions indicating that Women's Commission has all trappings of judicial or quasi judicial forum is that if the petitioner is raising any controversy as regards fact of matter of what has occured during the proceedings before the Committee of Women's Commission or Women's Commission. Thereby she is raising dispute as to what transpired during the enquiry before a quasi judicial forum. 29 W.P. 6422, 1897,4072.....2012 - [ J ] 29] A dispute or controversy as regards what had transpired before a Court/Tribunal or quasi judicial forum or forum having all powers and trappings of Court can better and always be raised before the same forum by a motion for speaking to the minutes, review or in any other analogous way. A forum having judicial trappings can not be scandalized or vandalized by bringing for agitating facts before a writ Court as a first Court of facts. Therefore, right course for the petitioner is to approach the Women's Commission, who is bound to be in full session and control of facts and record. It could afforded to the petitioner opportunity de novo if satisfied about factualness of petitioner's grievance, if case therefor could be made out by the petitioner. 30] Therefore, the petitioner should have approached the Women's Commission with a request for reopening of the enquiry and re-hearing by placing on record all that had transpired before the Women's Commission between the petitioner and the Committee. Petitioner has failed to adopt this course. Therefore, it would not be proper for this Court to sit in a Judgment to judge as to what transpired during the proceedings of the Enquiry Committee of the Women's Commission. This is particularly so, when personal 30 W.P. 6422, 1897,4072.....2012 - [ J ] malice and bias against the members of Committee of Women's Commission is not a ground underlying the imputations of violation of principles of natural justice.
31] The discipline of quasi judicial and special forums requires that any grievance as to what has transpired during the process of hearing before any Committee or Commission adjudicating in quasi judicial or like manner, ought to be agitated before the same authority. Moreover, petitioner has failed to prove as to how petitioner had kept the track of further proceedings beyond sheer statement on oath. No efforts were made to secure copies of record to rely. 32] We, therefore, deem it appropriate to decline to entertain any grievance in nature of present one, in exercise of Writ Petitions. More over, even if this Court directs the Women's Commission to re-examine the matter, petitioner has essentially to go before the same Commission. Therefore, appropriate course is not to permit the petitioner scandalize the prestige and the authority at the Women's Commission to leave the petitioner to choose her course of action. 31 W.P. 6422, 1897,4072.....2012 - [ J ] 33] About mandamus:-
As regards the aspect of petitioner's prayer for writ of mandamus is concerned, such issue once properly framed, is going to depend upon the petitioner's proving that by virtue of the report of the Respondent NO.1 and the direction of the Womens' Commission and enforceable right as accrued in favour of the petitioner. Perusal of findings given by the Respondent No.1 reveals that the observations which may be construed to be favourable to the petitioner are that the action of Respondent No. 4 is harsh. The underlined portion in the copies contained and para No. 24 discloses that on the point of "sexual harassment", the findings recorded by the Respondent NO.1 are eloquently unfavourable to the petitioner.
34] As regards the direction to enforce the report purportedly given by the Womens' Commission is concerned, it is obvious that the language contained in the letter of Dy. Secretary which is quoted in foregoing para No.22 when considered in its entirety i.e. along with the report of the Womens' Commission, reveals to be in the nature of formated letter than a direction issued consciously and deliberately. What is to be enforced is the report of the Committee. The report of the 32 W.P. 6422, 1897,4072.....2012 - [ J ] Committee headed by Justice Sindakar [Retd.] is unfavourable to the petitioner and in no ambiguous terms, the petitioner has sought for quashing the same. In this back-ground, what is to be enforced by writ of mandamus as a right of the petitioner and obligation of the respondent, is not even fictional. 35] This Court had already applied mind in Civil Application No.2134 of 2012 in (decided) Writ Petition No. 4072 of 2011, had allowed the enquiry to proceed and stayed the passing of final order. Thus, this Court has in unambiguous terms declined to stay the departmental enquiry, pending decision by the Womens' Commission. 36] Now, the Women's Commission has already concluded. Petitioner has grievance against the decision of the Women's Commission. The petitioner claims that decision by the Committee of Women's Commission is erroneous, and that it deserves to be set aside, on certain obvious fact which we have noticed from record it is evident that for the first time the petitioner had voiced about "sexual harassment", only after she was served the charge sheet and not even once before that date.
33 W.P. 6422, 1897,4072.....2012 - [ J ] 37] The second Writ Petition was filed by the petitioner in the back-ground that the Appeal filed by her has not been decided by the State Government. Perusal of the record shows that after filing of Appeal before the State Government, the petitioner has not pursued it, mostly because the protection ordered in decided Writ Petition [ W.P. No. 4072 of 2011] was governing the field. It is evident that the petitioner has not shown active interest in challenging the Government's act of indolence. The W.P. No. 1897 of 2012 was filed only after the Commissioner filed application for leave to take decision in the decided Writ Petition No.4072 of 2011. . 38] It is also evident that W.P. No. 1897 of 2012 was filed in the back-ground that Standing Committee before whom an appeal or challenge to the orders of Commissioner would lie, was not in existence. 39] It appears that it is an admitted position that when this petitioner is being heard, the Standing Committee has come into existence. Admittedly, Standing committee is an appellate forum against the order as may be passed by the Commissioner. Now, order passed by the Commissioner is capable of challenge before the 34 W.P. 6422, 1897,4072.....2012 - [ J ] Standing Committee. In this back-ground a direction to the State Government to expedite the hearing of Appeal, will be wholly inappropriate. The appeal filed by the petitioner before the State Govt. has become infructuous due to availability of Standing Committee and petitioner may have to file appeal before the Standing Committee if the order is adverse and if she chooses and is so advised.
40] It is a matter of record that in W.P. No.4072 of 2011 this Court had declined to stay the proceedings of departmental enquiry though proceedings of Complaint filed by petitioner were in progress before the Women's Commission.
41] Now, when the report of respondent no. 1 and of Women's Commission are unfavourable to the petitioner, all the more, there are no grounds whatsoever for justification for staying further action by the Commissioner.
42] The issues framed by this Court, which are seen arising in the petition, therefore, turn superfluous and will have to be answered with a common finding namely in view that:
35 W.P. 6422, 1897,4072.....2012 - [ J ] [a] The report of the respondent No. 1 though treated by the petitioner to be favourable to her, is in fact not favourable to her. [b] The expression of opinion by respondent No. 1 that, " petitioner was likely to feel that the actions taken by respondent No. 4 are because of his attitude of sexual harassment" or an expression of the respondent No. 1 that the attitude of respondent No. 4 in withdrawing the work etc. was harsh, is an expression of opinion and can not be regarded as a finding favourable to the petitioner. [c] These findings by Respondent No.1 can not be regarded or denoted as a finding favourable to the petitioner empowering the State Govt. to interfere in the matter, as it pertains to a subject of day to day administrative business of Chief executive to be conducted in own authority and discretion by a local self Govt. authority having constitutional status.
[d] The forwarding letter sent by the Womens' Commission sending the report of the Committee 36 W.P. 6422, 1897,4072.....2012 - [ J ] headed by Justice Sindkar [Retd.] and giving direction to the State Govt. to take action thereupon and to inform the Womens' Commission about the out-come appears to be in the nature of routine forwarding letter.
[e] The exact force of the direction contained in said forwarding letter will have to be construed in the light of the text of report of the Committee headed by Justice Sindkar [Retd.], which even according to petitioner is unfavourable to her. [f] Even the petitioner is not happy with Justice Sindkar [Retd.] Committee's report and, therefore, the said forwarding letter incorporating direction, can not be read to contain the mandatory direction.
[g] The direction contained in this forwarding letter does not carry the force of imperativeness when seen in totality. 43] Therefore, the petitioner is not entitled for reliefs sought by her. We, therefore, hold that:- [a] The petitioner has failed to demonstrate 37 W.P. 6422, 1897,4072.....2012 - [ J ] existence of legal right emerging from the report of the respondent no. 1 or women's commission.
[b] Petitioner has failed to demonstrate that the State Govt. has failed to discharge a reciprocal or corresponding obligation. [c] Issue of writ of mandamus and writ of certiorari as sought for can not be issued. [d] Issue of writ of certiorari for quashing Commission's report is not justified in the back-ground that the petitioner has raised dispute as to what has transpired during the conduct of proceedings before the Womens' Commission. Such dispute is always liable to be gone into by the Womens' Commission if raised by the petitioner by appropriate application or proceedings.
44] Now, the imperative course for the petitioner as sole path reveals to be:
[1] petitioner may have to go before the Women's Commission to represent her grievance agitated before this Court against the 38 W.P. 6422, 1897,4072.....2012 - [ J ] proceedings and the report of the Commission. [2] in view of availability of Standing Committee, petitioner may have to Appeal before the Standing Committee against the act of respondent No. 4 of issuing charge sheet and final order if it be adverse.
[3] that the statutory Appeal against any order passed by the Commissioner is available before the Standing Committee and then General Body.
45] From the view and conclusions noted in foregoing paragraphs, issue framed by this Court for adjudication will have to be answered adverse to the petitioner.
46] In light of discussion and conclusions as recorded herein before, various issues framed by this Court are answered as follows:-
Issue No.A-[1]:-
Petitioner is not entitled to the relief of quashing of charge sheet.
We however clarify that the question of legality of charge sheet is not decided by us. Issue No.A-[2]:-
39 W.P. 6422, 1897,4072.....2012 - [ J ] A writ of mandamus can not lie for direction to the State to decide petitioner's Appeal in the back-ground that the appellate forum is now locally available [as provided by statute].
Issue No.B-[1] to [3]:-
Petitioner is not entitled to writ of mandamus and writ of certiorari as prayed. Issue No.B-[4]:-
Petitioner is not entitled for the direction against the Commission for the enquiry as desired unless the Commission's order is reviewed, set aside, etc. Issue No.C-[1]:-
In view of the fact that the report of the Womens' Commission is adverse to the petitioner, she is not entitled for the relief.
Issue No.C-[2]:-
The Commissioner, Municipal Corporation, Aurangabad is entitled to take further action. The action, however shall remain in abeyance for 30 days from actual date of service or 40 W.P. 6422, 1897,4072.....2012 - [ J ] till the first meeting of Standing Committee, who may be competent and who may hear the Appeal as per the order passed by the Commissioner.
Issue No.D:-
It shall suffice if the petitioner is granted inspection of the registers and supplied true copy of the relevant part thereof.
47] We wish to record that learned Advocate Mr. R.N.Dhorde appearing for Respondent Nos.4 and 5 has made statement before this Court that let the decision in the matter of departmental enquiry be taken by him and it shall be subject to the final decision or conclusion as may be reached by the General Body. In this view of the fact of the matter, all the more there is no propriety whatsoever of granting any protection sought in the petition.
48] In the result, we pass order as follows:- [a] Writ Petition No. 1897 of 2012 is dismissed. Rule is discharged.
[b] Writ Petition No. 6422 of 2012 is dismissed. Rule is discharged.
41 W.P. 6422, 1897,4072.....2012 - [ J ] [c] Civil Application No. 9666 of 2012 in Writ Petition No. 6422 of 2012 is partly allowed to the extent that the petitioner shall apply for inspection and then specify for supply of photo copy of relevant pages of register within seven (7) days. Those shall be supplied by the respondent No.4.
[d] Civil Application No. 2134 of 2012 in (decided) Writ Petition No. 4072 of 2011 is partly allowed in terms of prayer clause "B".
It is clarified that the decision which may be reached in the matter of the charge sheet served by the respondent No.4 against the petitioner shall remain in abeyance for 15 days.
49] In the circumstances, parties are directed to bear own costs.
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