MANU/OR/0318/2018

Equivalent Citation: 126(2018)C LT1077

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

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appreciated the objection raised by 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, 2013 (herein after referred

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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 Internal
Committee or the Local Committee shall proceed to make an inquiry

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 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 accordance with the
provisions of Section 15:

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 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.
18. 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;
(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

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 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.
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,

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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.
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

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 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 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.

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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 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

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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 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

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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.
10. 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 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.

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1 1 . 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.
12. 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.
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