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Judgments of Supreme Court of India and High Courts

Dr.S.Murugan vs The State Of Tamil Nadu on 14 February, 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 14-02-2019

CORAM

THE HON’BLE MR.JUSTICE S.M.SUBRAMANIAM

W.P.Nos.25213, 23292, 23293 and 23846 of 2018
And
W.M.P.Nos.27173, 27174, 27781, 27782, 29320 and 29321
of 2018

W.P.No. 25213 of 2018:

Dr.S.Murugan
Joint Director,
Directorate of Vigilance and Anti Corruption,
H 3-1, TAISHA, Near Natesan Nagar West,
Virugambakkam,
Chennai 600 092. …Petitioner

Vs.

1.The State of Tamil Nadu,
Represented by its Chief Secretary to the Government,
Fort St George,
Chennai, Tamil Nadu.

2.The State of Tamil Nadu,
Represented by its Home Secretary to the Government,
Fort St George,
Chennai, Tamil Nadu.

3.The Director General of Police,
Radhakrishnan Salai,
Mylapore,
Chennai-Tamil Nadu.

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4.The Director,
Vigilance and Anti Corruption Department
No.293, MKN Road,
Alandur,
Chennai 600016.

5.The Internal Complaints Committee,
Represented by its Chairman,
Office of the Director General of Police
Radhakrishnan Salai, Mylapore,
Chennai, Tamil Nadu.

6.Tmt.H Jayalakshmi
Superintendent of Police
1-B, CID, Mandaveli,
Chennai- 600 028.

7.CBCID, Egmore, Chennai – 8.
(Suo Motu impleaded as per
order dated 10.09.2018) …Respondents

W.P.Nos. 23292 23293 of 2018:

H.Jayalakshmi …Petitioner
Vs.

1.The State of Tamil Nadu,
Represented by its Principal Secretary,
Home Department
Fort St George, Chennai-09.

2.The Director General of Police,
Kamrajar Salai, Kailasapuram
Chennai-600005

3.The Director,
Vigilance and Anti-Corruption
No.293, MKN Road,
Collector Nagar,
Alandur,
Chennai-600016.
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4.Dr.S.Murugan
Joint Director, DVAC
293, MKN Road,
Collector Nagar,
Alandur, Chennai-600 016. …Respondents

W.P.No. 23846 of 2018:

H.Jayalakshmi …Petitioner
Vs.

1.The State of Tamil Nadu,
Represented by Additional Chief Secretary to Government,
Home Prohibition and Excise Department
Fort St George,
Chennai-09.

2.The Director General of Police,
Kamrajar Salai, Kailasapuram
Chennai-600005

3.The Director,
Vigilance and Anti-Corruption
No.293, MKN Road,
Collector Nagar,
Alandur,
Chennai-600016.

4.Dr.S.Murugan
Joint Director, DVAC
293, MKN Road, Collector Nagar,
Alandur,
Chennai-600 016.

5.The Internal Complaints Committee,
Represented by its Presiding Officer,
Office of the Director General of Police
State Crime Records Bureau
Chennai-28. …Respondents

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W.P.No.25213 of 2018: WRIT PETITION under Article 226 of the
Constitution for issuance of Writ of Certiorari calling for the records
in the impugned proceedings of the 3rd respondent in
RC.NO.Staff.I(1)/ 183780/ 2017/ C.O.O.No. 170/2018 dated
17.08.2018 constituting the 5th respondent as far as petitioner is
concerned, and consequential proceedings in C.No.01/ICC/
ADGP/SCRB/Camp/2018-2 dated 30.08.2018 of the 5th respondent
and quash the same.
W.P.No.23292 of 2018: WRIT PETITION under Article 226 of the
Constitution in the nature of Mandamus to direct the 1st respondent
to transfer the 4th respondent to any non-sensitive post outside the
directorate of Vigilance and Anti-Corruption pending enquiry into the
petitioner’s complaint dated 04.08.2018 and further ensure that he
does not in any manner handle any work-related file pertaining to
the petitioner.
W.P.No.23293 of 2018: WRIT PETITION under Article 226 of the
Constitution in the nature of Certiorarified Mandamus calling for the
record of the 2nd respondent in proceedings in RC.NO.Staff.I(1)/
183780/2017 dated 17.08.2018 and quash the same and direct the
1st and 2nd respondent to reconstitute the internal complaints
committee in accordance with Section 4 of the Act.

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W.P.No.23846 of 2018: WRIT PETITION under Article 226 of the
Constitution in the nature of Certiorarified Mandamus calling for the
records of the 5th respondent in proceedings dated 30.08.2018 in
C.No.01/ICC/ADGP/Camp/2018-2 and quash the same in so far as
the 5th respondent states that it is not the competent authority to
decide on the petitioner’s request for transfer of the 4th respondent
and further direct the 5th respondent to recommend transfer of the
4th respondent.

W.P.No.25213 of 2018:

For Petitioner : Mr.AR.L.Sundaresan, Senior Counsel
For Ms.Abitha Banu

For Respondents : Mr.Vijay Narayanan, Advocate General
assisted by Mr.Jayaprakash Narayanan,
Government Pleader and Mr.A.N.Thambi
Durai, Spl. Govt. Pleader R1 to R5 and R-7
and Mr.D.Jayasingh – R6

W.P.Nos.23292 and 23293 of 2018:
For Petitioner : Mr.D.Jayasingh

For Respondents : Mr.Vijay Narayanan, Advocate General
assisted by Mr.Jayaprakash Narayanan,
Government Pleader and Mr.A.N.Thambi
Durai, Spl. Govt. Pleader R1 to R3
Mr.R.Thiagarajan, Senior Counsel
For Ms.Abitha Banu – R4

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W.P.No.23846 of 2018:
For Petitioner : Mr.D.Jayasingh

For Respondents : Mr.Vijay Narayanan, Advocate General
assisted by Mr.Jayaprakash Narayanan,
Government Pleader and Mr.A.N.Thambi
Durai, Spl. Govt. Pleader R1 to R3 and R5
Mr.R.Thiagarajan, Senior Counsel
For Ms.Abitha Banu – R4

****

COMMON ORDER

“An ounce of practice is worth more than tons of

preaching”, Mahatma Gandhi said.

An attempt to follow the words, this Court is inclined to

direct the Registrar (Administration), High Court of Madras to install

Closed Circuit CCTV Camera in the Chambers of Hon’ble Justice

S.M.SUBRAMANIAM, within a period of two weeks from the date of

receipt of a copy of this order. With these directions, this Court

would prefer to adjudicate the issues raised in all these writ

petitions.

2. The Commissioner of Police of all Cities across the

State as well as the Director General of Police and other Higher

Police Officials are preaching with responsibility that all the
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Residents, Apartment owners, Traders and others shall install the

CCTV Cameras in their respective premises, enabling the Police

Department to nab the offenders. Such advertisements are

frequently issued by the Police Department and the Higher Officials

are repeatedly insisting for installation of Closed Circuit CCTV

Cameras in all the places to improvise the vigil over the crimes and

the offenders. This being the preachings of the Police Department to

the citizen at large of this Great Nation, what about the offenders

and Black Sheeps in the Police Offices, Chambers and Office Rooms

of the higher officials and what measures are taken to nab the

offenders and Black Sheeps inside the Police Department and other

public offices and institutions etc.

3. The lis on hand is a significant one, where the

allegation of sexual harassment is made by a Senior Level Police

Officer, which is an unfortunate situation aroused in the Police

Department and the way in which the case was handled by the

Executives concerned is also a concern for this Court and therefore,

this Court thought fit to take up all these writ petitions on out of

turn basis and hear the parties and accordingly, pass this order.

4. At the outset, the writ petitioner Dr.S.Murugan in WP
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No.25213 of 2018, challenged the constitution of the Internal

Complaints Committee as well as the direction issued by the

Presiding Officer of the Internal Complaints Committee to register a

criminal complaint by the CBCID Wing of the Police Department. The

other three writ petitions, namely, WP Nos.23292, 23293 and

23846 of 2018 are filed by Smt.H.Jayalakshmi, who is the

complainant, in respect of the complaint given against

Dr.S.Murugan.

5. WP No.23292 of 2018 is filed for a direction to direct

the first respondent to transfer the fourth respondent

(Dr.S.Murugan) to any other Non-sensitive Post outside the

Directorate of Vigilance and Anti-Corruption pending enquiry into

the petitioner’s complaint dated 4.8.2018 and further ensure that he

does not in any manner handle any work related file pertaining to

the writ petitioner.

6. WP 23293 of 2018 is filed challenging the

proceedings of the second respondent dated 17.8.2018 in relation

to the Internal Complaints Committee in accordance with Section 4

of The Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act, 2013.
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7. WP 23846 of 2018 is filed challenging the

proceedings of the fifth respondent dated 30.8.2018 stating that the

incompetency and lack of jurisdiction expressed by the Internal

Complaints Committee is contrary to law and further direction is

sought for to direct the fifth respondent to recommend transfer of

the fourth respondent (Dr.S.Murugan) to a Non-Sensitive Post

outside the Directorate of Vigilance and Anti-Corruption

Department.

8. The facts in nutshell to be considered in these writ

petitions are that the Principal Secretary to Government, Home

Department, issued G.O.Ms.No.429, Home Department, dated

1.7.2013, constituting the Internal Complaints Committee in the line

of the judgment of the Hon’ble Supreme Court of India in the case

of Vishakha vs. State of Rajasthan [AIR 1997 SC 3011]

regarding the sexual harassment against working women.

9. Smt.H.Jayalakshmi was posted as Superintendent of

Police at the Directorate of Vigilance and Anti-Corruption.

Dr.S.Murugan, IPS was posted as the Joint Director of Directorate of

Vigilance and Anti-Corruption on 14.7.2017. Smt.H.Jayalakshmi,
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Superintendent of Police had given a oral complaint to the Director

of Vigilance and Anti-Corruption on 3.8.2018 and on the very next

day i.e., on 4.8.2018, the complainant Smt.H.Jayalakshmi filed a

written complaint before the Director of Vigilance and Anti-

Corruption against Dr.S.Murugan, IPS under The Sexual Harassment

of Women at Workplace (Prevention, Prohibition and Redressal) Act,

2013.

10. On receipt of the complaint from

Smt.H.Jayalakshmi, the second respondent Director General of

Police constituted an Internal Complaints Committee on 17.8.2018.

There was an objection from the complainant that the said

Committee was constituted in violation of Section 4 of The Sexual

Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013. Thus, the writ petitioner had submitted an

objection on 28.8.2018 in respect of the constitution of the

Committee by the Director General of Police in proceedings dated

17.8.2018.

11. This apart, Smt.H.Jayalakshmi requested to transfer

Dr.S.Murugan, IPS out of Directorate of Vigilance and Anti-

Corruption Department, enabling her to pursue the complaint

without any interference and influence. The Director General of
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Police in his letter dated 29.8.2018, through online reply, stated

that the constitution of the Committee is in accordance with the

provisions of The Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, 2013. Thus, the writ

petitioner is constrained to move the Hon’ble High Court for

appropriate remedy by way of filing the writ petition in WP

No.23292 of 2018.

12. The other two writ petitions in WP Nos.23293 and

23846 of 2018 are also filed by Smt.H.Jayalakshmi questioning the

order dated 17.8.2018 and 30.8.2018. Thus, the orders are also in

relation to the constitution of the Internal Complaints Committee.

13. Dr.S.Murugan, IPS also challenged the constitution

of the Committee and the Committee’s decision to register a

criminal case against him through CBCID. Thus, the issue raised by

the complainant as well as by Dr.S.Murugan, IPS are interconnected

and both the officials are questioning the constitution of the Internal

Complaints Committee and Dr.S.Murugan, IPS has challenged the

registration of a criminal case through CBCID Wing of the Police

Department.

14. The learned counsel, appearing on behalf of
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Smt.H.Jayalakshmi vociferously contended that even a Senior

Women Police Officer in the Rank of IPS, is unable to redress her

grievances in the manner known to law. Even the enquiry

proceedings are prolonged and protracted on certain flimsy grounds.

The entire enquiry proceedings and the criminal case investigations

are stalled on account of the interim stay granted by this Court.

15. The learned counsel for Smt.H.Jayalakshmi,

Superintendent of Police states that Smt.H.Jayalakshmi is now

working as Superintendent of Police in the Tamil Nladu Police

Commercial Crime Investigation Wing (CCIW). She was inducted in

the Police Department in the cadre of Deputy Superintendent of

Police during the year 2003. On completion of 10 years of clean

service, she was promoted to the post of Superintendent of Police in

the year 2013.

16. The writ petitioner was posted as Superintendent of

Police in the Directorate of Vigilance and Anti-Corruption, Chennai

and even before the posting of Smt.Jayalakshmi in the Department

of Vigilance and Anti-Corruption, Dr.S.Murugan, IPS was already

working in the Department of Vigilance and Anti-Corruption from

14.7.2017. Dr.S.Murugan, IPS was the Superior Officer and
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Smt.H.Jayalakshmi, Superintendent of Police had to report to him

and she was in-charge of Central Range.

17. The learned counsel for Smt.H.Jayalakshmi further

states that right from the date on which she assumed the Office as

S.P. of Police, his attitude towards Smt.H.Jayalakshmi has been

unprofessional and his behaviour was highly condemnable. Even the

examples narrated in the affidavit, are reiterated and it reads as

under:-

“(a) Initially, Mr.Murugan used to call
me during late hours and asked me about
work related issues. However, within few
days, he began asking me personal questions
and making personal comments during late
night hours. This forced me to avoid his calls.

(b) On the pretext of discussing files,
Mr.Murugan used to call me to his room and
make comments about my personal and
physical attributes including my dressing,
hair-style etc. He used to make lewd and
offensive comments which made me
uncomfortable.

(c) Whenever I entered his room, he
used to take photos of me on his mobile
phone despite my strong objection.

(d) After I began resisting such
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behaviour, his attitude towards me became
intimidating. He started threatening me with
serious consequences for my career.

(e) He used to make 20 to 25 calls on
Whats App in one stretch after office hours.
His behaviour was obsessive.

(f) Mr.Murugan had the habit of calling
me to his room after lunch, when no body was
allowed to enter in. He used to make me to sit
in his room and ask me all sorts of personal
questions.

(g) On 1.8.2018, Mr.Murugan called me
to his room at around 1.30 P.M. After asking
some personal questions, he locked his room
from inside. When I questioned him about his
action and tried to open the lock of the room,
he hugged me physically. I had to forcefully
push him away and got out of the room.”

18. Smt.H.Jayalakshmi unable to tolerate the

harassment, constrained to give a oral complaint to the Head of the

Department of Vigilance and Anti-Corruption, namely, the Director

on 3.8.2018 and a written complaint was given on 4.8.2018,

explaining the series of events. Smt.H.Jayalakshmi requested the

third respondent to treat the complaint as a complaint under The

Sexual Harassment of Women at Workplace (Prevention, Prohibition

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and Redressal) Act, 2013. However, no reply was given by the

Director of Vigilance and Anti-Corruption. Smt.H.Jayalakshmi came

to understand that on 6.8.2018, a meeting was held by the Director

regarding the constitution of an Internal Complaints Committee in

terms of the Sexual Harassment Act pursuant to the complaint.

19. Smt.H.Jayalakshmi further requested that she was

continuing as a Chairperson of existing Internal Complaints

Committee in the Directorate of Vigilance and Anti-Corruption

Department and therefore, a Senior Level Officer must be appointed

to enquire into her complaint. Further she expressed her

apprehension that the continuance of Dr.Murugan as Joint Director

of Directorate of Vigilance and Anti-Corruption in the same office

would cause prejudice and there is a likelihood of force and

influence made in the enquiry proposed to be conducted pursuant to

the complaint given by Smt.Jayalakshmi and she met several higher

level officers in the Police Department, including the Director

General of Police and the Director of Vigilance and Anti-Corruption

Department. She met Smt.Vidya Kulkarni (IGP-Headquarters), Shri

Sathyamurthy (IGP Intelligence) and Shri Mohan Pyare, IAS

(Vigilance Commissioner) and she expressed her grievances to them

and they assured her of firm action against the alleged unfortunate
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incident and the complaint.

20. Smt.H.Jayalakshmi received a letter on 27.8.2018

from the Director General of Police, directing her to appear before

the Internal Complaints Committee constituted. She made an

objection with reference to the constitution of the Committee and

thereafter, Smt.H.Jayalakshmi approached this Court for the

purpose of directing the Principal Secretary to Government, Home

Department, to transfer Dr.S.Murugan to any Non-Sensitive Post

during the pendency of the enquiry. It is further contended by the

learned counsel for Smt.H.Jayalakshmi that the Hon’ble Supreme

Court in the case of Vishakha vs. State of Rajasthan [AIR 1997

SC 3011] held in the context of criminal proceedings that “where

such conduct amounts to a specific offence under the Indian Penal

Code or under any other law, the employer shall initiate appropriate

action in accordance with law by making a complaint with the

appropriate authority. In particular, it should ensure that victims or

witnesses are not victimised or discriminated against while dealing

with complaints of sexual harassment. The victims of sexual

harassment should have the option to seek transfer of the

perpetrator or their own transfer”. However, Smt.H.Jayalakshmi

herself sought for her own transfer and she was transferred from
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the Department of Directorate of Vigilance and Anti-Corruption and

now working in the Commercial Crime Investigation Wing.

21. To summarise the legal contentions raised by the

learned counsel appearing for Smt.H.Jayalakshmi, which are

narrated as under:-

The initial written complaint given by Smt.H.Jayalakshmi

on 4.8.2018 categorically states as follows:-

“I am lodging this complaint
against the activities of Thiru

Murugan, IPS whose behaviour are fit
to be dealt by law provisions laid
down by The Sexual Harassment of
Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013.

It defies sexual harassment as laid
down by the Supreme Court in
Vishakha and Others vs. State of
Rajashthan case.
Unable to work under prevailing
circumstances which has caused me

anxiety, physical and mental stress, I
have entered on medical leave.

I seek to initiate criminal action
against Thiru Murugan, IPS and seek
your protection from him to establish

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any form of communication with me
or my immediate family members or
friends.

I also request you to issue direction
to concern to protect my privacy and
details of my complaint from Right to
Information Act, as laid down by
provisions of law.”

22. Reiterating the original complaint dated 4.8.2018,

Smt.H.Jayalakshmi once again sent a representation to Smt.Seema

Agrawal, IPS/Presiding Officer, Internal Complaints Committee,

Chennai dated 27th August, 2018. In the said representation also,

Smt.H.Jayalakshmi reiterated her request to initiate criminal action

against Dr.S.Murugan as follows:-

“D. Considering the culpability of
the Act of the respondent, it is also
incumbent on the Establishment to assist
the “ aggrieved woman” Officer to
initiate criminal proceedings under
Sections 341, 354 and 509 IPC r/w
Section 4 of Tamil Nadu Prohibition of
Harassment of Women Act, 1998 under
the enabling provision of Section 19(g)
of THE SEXUAL HARASSMENT OF WOMEN
AT WORKPLACE (PREVENTION,

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PROHIBITION AND REDRESSAL) ACT,
2013.

As sought in my complaint dated
4.8.2018, it is requested that the
complaint may be forwarded to the

appropriate police authorities for taking
criminal action also, apart from enquiry
by the ICC, since it discloses a
cognizable offence.”

23. Citing the above specific complaint made by

Smt.H.Jayalakshmi, the learned counsel for Smt.H.Jayalakshmi

solicited the attention of this Court that Section 19(g) of The Sexual

Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013, reads as under:-

”19(g) To provide assistance to the
woman if she so chooses to file a complaint
in relation to the offence under the Indian
Penal Code or any other law for the time
being in force.”

24. When the victim/complainant made a specific

request in her written complaint that a criminal action is to be

initiated, there is no irregularity in registering a complaint through

CBCID Wing of the Police Department. The person against whom

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the sexual harassment complaint is made is not an ordinary level of

official. Dr.S.Murugan is holding the higher position of Inspector

General of Police and therefore, there is a likelihood of influencing

the other subordinate police officials in the matter of investigation

and also to conduct enquiry in an unbiased manner. Thus, the case

was directed to be registered by CBCID Wing of the Police

Department, who in turn had registered an FIR and on account of

the interim order granted, the investigations are stalled in entirety.

25. The learned counsel for Smt.H.Jayalakshmi

reiterated that under Section 19(g) of the Act, it is the duty of the

employer and therefore, they have no option except to register an

First Information Report and proceed with the investigation as per

the Code of Criminal Procedure. Thus, the writ petition filed by

Dr.S.Murugan is liable to be dismissed.

26. Distinguishing the ingredients of Section 11 and

Section 19(g) of the Act, the learned counsel for Smt.H.Jayalakshmi

argued that Section 11 is to conduct an enquiry by the Internal

Complaints Committee and thereafter, if any prima facie case is

made out for registering of a criminal case under Indian Penal Code,

then forward the complaint to the police for registration of First

Information Report. The said question does not arise in view of the
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fact that the complainant herself is a Senior Level Police Officer and

has knowledge about the provisions of the Indian Penal Code and

the nature of the offences committed against her and with this

knowledge, she made a specific request in her written complaint

dated 4.8.2018 stating that a criminal action also is to be taken by

the competent authority.

27. Therefore, such a request, if any, made by the

complainant, having aware of the nature of the offences committed

against her, then Chapter VI of the Act would be attracted and it

became the duty of the employer under Section 19(g) to provide

assistance to the woman if she so chooses to file a complaint in

relation to the offence under the Indian Penal Code or any other law

for the time being in force. These two limbs of the provisions of the

Act, must be harmoniously interpreted to facilitate the complainant

to redress her grievances in the manner known to law. Therefore,

Dr.S.Murugan cannot take any undue advantage of these provisions

contemplated under Section 11 of the Act, by stating that an

enquiry is a precondition for the purpose of registering an FIR by

the police under the Indian Penal Code.

28. The learned counsel, appearing on behalf of
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Smt.H.Jayalakshmi states that she is willing to pursue both the

criminal complaint already registered in FIR No.2 of 2018 on the file

of CBCID Chennai as well as the enquiry to be conducted by the

Internal Complaints Committee constituted by the authorities

concerned.

29. In proceedings dated 4.10.2018, the Internal

Complaints Committee was reconstituted and the following persons

are appointed as Committee Members:-

“6. Accordingly, the Internal Committee
formed vide fourth reference is reconstituted
with the following officials by including a third
party member, as per Section 4 of the Sexual
Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act,
2013:

1. Tmt.Srilakshmi Prasad, IPS, Additional Presiding Officer
Director General of Police, Vigilance, Tamil
Nadu Generation and Distribution Corporation
Ltd., Chennai.

2. Tmt.P.Kannammal, IPS, SP, CR, DVAC, Member
Chennai

3. Tmt.M.Kanaga, Manager, Confidential Branch, Member
DVAC, Chennai.

4. Tr.S.Ramadoss, DSP, HQRS, DVAC, Chennai. Member

5. Tmt.K.M.Valsalakumari, Advocate, MHC.

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30. Smt.H.Jayalakshmi has filed the copy of the

statement sent to CBCID on 12.2.2019 before this Court reiterating

her complaint and further has stated that even in her original

complaint dated 4.8.2018, she has clearly stated that a criminal

action also must be initiated against Dr.S.Murugan. Such a request

was reiterated once again in her letter dated 27.8.2018 to the

Presiding Officer, Internal Complaints Committee. Thus, she stands

by her complaint and she states that the allegations are very much

true and a thorough impartial and fair enquiry is certainly imminent

for getting justice.

31. The learned Advocate General, appearing on behalf

of the State, made a submission that the State on receipt of the

written complaint from Smt.H.Jayalakshmi acted promptly and the

complaint dated 4.8.2018 was dealt in accordance with the

provisions of the Women Harassment Act. As per the request of the

Superintendent of Police Smt.H.Jayalakshmi her medical leave was

recommended by the Director of DVAC and thereafter,

Smt.H.Jayalakshmi/complainant was transferred at her request to

the post of Superintendent of Police, Commercial Crime

Investigation Wing, CBCID, Chennai. Thus, the request of the
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complainant Smt.H.Jayalakshmi was favourably considered and she

was transferred at her own request and further action was also

initiated based on the written complaint given by Smt.H.Jayalakshmi

on 4.8.2018.

32. The learned Advocate General further states that as

the complainant herself was the Chairperson of the Internal

Complaints Committee of the DVAC, another Committee was

constituted under the Chairmanship of Smt.A.Radhika, IPS, Deputy

Director of DVAC, Chennai, against the said Committee an objection

was raised. Further objection is also raised on the ground that the

Senior Level Official is to be appointed, so as to conduct a fair

enquiry as the person against whom the complaint is made is an

I.G. level Police Officer. Dr.S.Murugan is holding the post in the rank

of Inspector General of Police. Thus, the request was considered

accepting the ground and the Director of Vigilance and Anti-

Corruption in proceedings dated 4.10.2018 constituted the Internal

Complaints Committee consists of the following persons:-

(i) Tmt.Srilakshmi Prasad, IPS, Additional Director General of

Police, Vigilance, Tamil Nadu Generation and Distribution

Corporation Ltd., Chennai as the Presiding Officer;

(ii) Tmt.P.Kannammal, IPS, SP, CR, DVAC, Chennai as a
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Member;

(iii) Tmt.M.Kanaga, Manager, Confidential Branch, DVAC,

Chennai as a Member;

(iv) Thiru S.Ramadoss, DSP, HQRS, DVAC, Chennai as a

Member; and

(v) Tmt.K.M.Valsalakumari, Advocate, Madras High Court.

An outsider also has been included in the Committee as a Member

and therefore, the said Committee should be allowed to continue

the enquiry in accordance with the provisions contemplated under

the Sexual Harassment Act.

33. The learned Advocate General is of an opinion that

the newly constituted Committee further directed for registration of

a criminal case as per the request of the complainant and

accordingly, the CBCID Wing of the Police, registered a criminal

complaint and on account of the stay granted in the writ petitions,

the investigations are kept in abeyance.

34. The learned Advocate General solicited the attention

of this Court with reference to Sections 10, 11 and 19(g) of the

Sexual Harassment Act. It is contended that the case was directed

to be registered under the Indian Penal Code and an FIR has
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26

already been registered. This apart, the complaint submitted by the

complainant was duly considered for conducting further enquiry in

accordance with the procedures and the Committee constituted is

headed by a Senior Woman Police Officer in the rank of the Director

General of Police. Thus, there is no infirmity in respect of the

constitution of the Internal Complaints Committee by the

Competent Authority. Thus, the State is ready and willing to

proceed with the enquiry by following the procedures contemplated

in order to cull out the truth and pass all such necessary orders with

reference to the provisions of the Act.

35. The learned Senior Counsel, appearing on behalf of

Dr.S.Murugan, made a submission that the ICC was constituted by

DVAC on 1.7.2013. Smt.H.Jayalakshmi was posted as

Superintendent of Police, DVAC on 30.6.2016 and she became the

Chairperson of ICC. On 3.8.2018, a oral complaint was given by

Smt.H.Jayalakshmi and the written complaint was submitted on

4.8.2018 i.e., on the next day. With reference to the facts and

circumstances, the learned Senior Counsel appearing on behalf of

Dr.S.Murugan contended that the constitution of the Committee

itself is not in accord with law.

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27

36. The writ petition filed by Dr.S.Murugan in WP

No.25213 of 2018, wherein it is stated that the fifth respondent

Committee/ICC in the proceedings dated 30.8.2018 directed the

CBCID to register a criminal case against Dr.S.Murugan without

having any jurisdiction. Thus, an unilateral decision taken by the

ICC to register a criminal complaint against Dr.S.Murugan by the

CBCID is untenable and liable to be scrapped. It is further

contended that the very constitution of the Committee/ICC in vide

proceedings dated 17.8.2018 itself is without jurisdiction. However,

the said Committee constituted in proceedings dated 17.8.2018 was

subsequently reconstituted with the Chairmanship of Tmt.

Srilakshmi Prasad, IPS, in the rank of the Additional Director

General of Police, Vigilance, Tamil Nadu Generation and Distribution

Corporation Ltd., Chennai.

37. The learned counsel appearing for Dr.S.Murugan

raised a ground that the Internal Complaint Committee is not

entrusted with nor having any power to refer the complaint to the

CBCID for registration of an FIR with reference to Section 11(1) of

the Women Harassment Act. Relying on Section 11(1) of the

Women Harassment Act, the learned Senior Counsel advanced his

arguments by stating that only after conducting a preliminary
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28

enquiry if the Internal Complaints Committee arrived a conclusion

that a criminal offence is made out under any of the provisions of

the Indian Penal Code, then alone a direction can be issued to

register an FIR.

38. However, the present Committee constituted had

taken an unilateral decision and directed the CBCID to register a

complaint under the Indian Penal Code. Thus, such a complaint is

registered without any jurisdiction and the Internal Complaints

Committee has no authority to direct the CBCID to register the

complaint with reference to Section 11(1) of the Women

Harassment Act. On these grounds, the learned Senior Counsel for

Dr.S.Murugan submitted that Second Proviso to Section 11 of the

Act and the Rules 7(2) and 7(4) of the Rules, which mandates an

opportunity of hearing and representation be afforded to

Dr.S.Murugan before taking any decision for registration of a

criminal complaint. Second Proviso to Section 11 of the Act states

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. Rules 7(2) and 7(4) states as follows:-
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29

“7(2). On receipt of the complaint,
the Complaints Committee shall send one
of the copies received from the aggrieved
woman under sub-rule (1) to the
respondent within a period of seven
working days.”
“7(4). The Complaints Committee
shall make inquiry into the complaint in
accordance with the principles of natural
justice.”

39. Relying on the above provisions of the Act and the

Rules, the learned Senior Counsel appearing on behalf of

Dr.S.Murugan, contended that none of the procedures contemplated

under the Act were followed before issuing a direction to register a

complaint under the Indian Penal Code by the CBCID. Thus, the

order dated 17.8.2018 passed by the third respondent/Director

General of Police as well as the order of the fifth

respondent/Internal Complaints Committee dated 30.8.2018,

directing the CBCID to register a criminal complaint are liable to be

quashed. The non-adherence of the mandatory rules provided under

the Proviso to Section 11 and the Rules 7(2) and 7(4) would vitiate

the entire proceedings as well as the FIR registered against

Dr.S.Murugan.

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30

40. It is further contended that the order dated

30.8.2018 issued by the Internal Complaints Committee had not

been served to Dr.S.Murugan. Therefore, for all these reasons,

these orders are to be quashed as well as the consequential

registration of an FIR is liable to be scrapped.

The arguments advanced by the respective learned counsels,

appearing for the parties to the lis on hand, are considered

by this Court carefully.

41. Violence against women is perhaps most shameful

human rights violation and it is perhaps the most pervasive. It

knows no boundaries of geography, culture or wealth. As long as it

continues, we cannot claim to be making real progress towards

equality, development and peace.

42. The concept of equality of status and the resolutions

adopted by “We the people of India” in the preamble of the

Constitution shall be achieved only when all citizen equally respect

everybody without any discrimination on gender basis. Equal

protection of laws is the constitutional mandate.
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31

43. Importantly, the fundamental duties enunciated

under Article 51-A, Clause (e) states that “to promote harmony and

the spirit of common brotherhood amongst all the people of India

transcending religious, linguistic and regional to sectional

diversities; to renounce practices derogatory to the dignity of

women”. It is the fundamental duty of every citizen of this Great

Nation, to renounce the practices derogatory to the dignity of

women.

44. When such being the fundamental duty of a citizen,

this Court is of an opinion that the responsibility of the higher Police

Officials stands in a higher footing. The responsible Police Officials

are the law implementing authorities of the law of the land. When

the Police Force is responsible and accountable for maintenance of

Law and Order, prevention of crimes, offences against women and

all other antisocial activities in this Great Nation, the fundamental

duties of a citizen, who is holding the higher post of a Police Official

is to be construed as mandate under the Constitution.

45. An ordinary citizen of this Great Nation may plead

ignorance of laws, which itself is impermissible. However, the Higher
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32

Police Officials in the present case, serving in the rank of Inspector

General of Police as well as the Superintendent of Police can never

be allowed to plead ignorance of laws or ignorance of responsibility

and accountability to be shown by virtue of their status as higher

level Police Officials.

46. When the fundamental duties itself enumerates that

to renounce the practices derogatory to the dignity of the women,

Police Officials are certainly bound by that principles and this apart,

sexual harassments are offences under various Statutes.

47. “It is not enough to focus on the harm to women as

sexual beings; the law must also focus on women’s systematic

disadvantages … and facilitate women’s equal empowerment … as

creative, committed workers. We need an account of hostile work

environment harassment that highlights its dynamic relation to

larger forms of general hierarchy at work.”

48. Feminism arose as a result of unequal laws created

by men through whom women were denied certain fundamental

rights. Simone de Beauvoir, a French philosopher, has been the

most important feminist thinker. She has shown as how from the
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33

earliest times men enslaved women due to their physical structure.

Women, as it happened generally became weak due to repeated

child birth, so they were thought to be less important than the male

members of the group.

49. This inferior and unequal status of women is the

main reason behind sexual violence behind them.

50. While gender violence is as old as humanity it is

only in the past two decades that it has been publically recognized,

systematically structured and legislated against to a significant

degree. In 1990’s such violence was finally admitted on

international level with recognition of human rights issue.

Internationally, the World Conference on Human Rights (1993) at

Vienna, which was one of the main turning points in women’s right

declared that human rights of women and of the girl child are

inalienable, integral and indivisible part of universal human rights.

The Vienna Declaration specifically condemned gender based

violence and all forms of sexual harassment and exploitation. The

Conference concluded that:

“The human rights of women and of
the girl child are an inalienable, integral and

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34

indivisible part of universal human rights.
The full and equal participation of women in
political, civil, economic and social and
cultural life at national, regional and
international levels, and eradication of all
forms of discrimination on grounds of sex are
primary objectives of the international
community…. The world governmental and
non-governmental organisations to intensify
their efforts for the protection on human
rights urges governments, institutions,
intergovernmental and non-governmental
organisations to intensify their efforts for the
protection and promotion of human rights of
women and the girl-child.”

51. Sexual Harassment at the work place is an

extremely sensitive issue. For most it is taboo, due to the limitations

of traditional gender hierarchies.

52. However, keeping in mind the principles of our great

Nation, the Government thought fit of enacting laws in this regard

and accordingly, the Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, 2013 was enacted.

53. The Act provides protection against the sexual
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35

harassment for woman at workplace, for complaints of sexual

harassment and matters connected therewith and incidental

thereto.

54. The statement of objects and reasons are extracted

hereunder:

“Statement of Objects and Reasons:

Sexual harassment at a workplace is
considered violation of women’s right to
equality, life and liberty. It creates an
insecure and hostile work environment,
which discourages women’s participation in
work, thereby adversely affecting their
social and economic empowerment and the
goal of inclusive growth.

2. The Constitution of India embodies
the concept of equality under Articles 14
and 15 and prohibits discrimination on
grounds of religion, race, caste, sex or
place of birth or any of them. Article
19(1)(g) gives the fundamental right to all
citizens to practise any profession, or to
carry on any occupation, trade or business.

This right pre-supposes the availability of
an enabling environment for women, which
is equitous, safe and secure in every
aspect. Article 21, which relates to the right
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36

to life and personal liberty, includes the
right to live with dignity, and in the case of
women, it means that they must be treated
with due respect, decency and dignity at
the workplace.

3. Article 11 of the Convention on
Elimination of All Forms of Discrimination
(CEDAW), to which India is a party,
requires State parties to take all
appropriate measures to eliminate
discrimination against women in the field of
employment. In its General
Recommendation No.19(1992), the United
Nations Committee on CEDAW further
clarified that equality in employment can be
seriously impaired when women are
subjected to gender -specific violence, such
as sexual harassment at the workplace.
India’s commitment to protection and
promotion of women’s constitutional rights
as well as respect for its obligations under
various international treaties is
unequivocal.

4. With more and more women
joining the workforce, both in organized
and unorganized sectors, ensuring an
enabling working environment for women
through legislation is felt imperative by the
Government. The proposed legislation
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37

contains provisions to protect every woman
from any act of sexual harassment
irrespective of whether such woman is
employed or not.

5. The Supreme Court of India in the
case of Vishaka Ors. V. State of
Rajasthan Ors. [1997 (7) SCC 323], also
reaffirmed that sexual harassment at
workplace is a form of discrimination
against women and recognised that it
violates the constitutional right to equality
and provided guidelines to address this
issue pending the enactment of a suitable
legislation.

6. It is, thus, proposed to enact a
comprehensive legislation to provide for
safe, secure and enabling environment to
every woman, irrespective of her age or
employment status (other than domestic
worker working at home), free from all
forms of sexual harassment by fixing the
responsibility on the employer as well as
the District Magistrate or Additional District
Magistrate or the Collector or Deputy
Collector of every District in the State as a
District Officer and laying down a statutory
redressal mechanism.

7. The notes on clauses explain in
detail the various provisions contained in
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38

the Bill.

8. The Bill seeks to achieve the above
objectives.”

55. The term “aggrieved woman” is defined in Section

2(a) of the Act as below:

(a) “aggrieved woman” means – (i) in
relation to a workplace, a woman, of any
age whether employed or not, who alleges
to have been subjected to any act of sexual
harassment by the respondent;

(ii) in relation to a dwelling place or
house, a woman of any age who is employed
in such a dwelling place or house.”

56. The term “employer” was defined under Section

2(g) of the Act. The term “Internal Committee” means an Internal

Committee constituted under Section 4 of the Act. Thus, the

Internal Committee should be constituted pursuant to the

requirements stipulated under Section 4 of the Act.

57. Section 3 deals with “Prevention of sexual

harassment”. Section 4 Chapter II deals with constitution of Internal

Committee, which is relevant for the case on hand.

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39

58. Section 4 reads as follows:-

“4. Constitution of Internal Complaints
Committee – (1) Every employer of a
workplace shall, by an order in writing,
constitute a Committee to be known as the
“Internal Complaints Committee”.

Provided that where the offices or
administrative units of the workplace are
located at different places or divisional or sub-
divisional level, the Internal Committee shall
be constituted at all administrative units or
offices.

(2) The Internal Committee shall consist
of the following members to be nominated by
the employer, namely:-

(a) a Presiding Officer who shall be a
woman employed at a senior level at
workplace from amongst the employees:
Provided that in case a senior level woman
employee is not available, the Presiding
Officer shall be nominated from other offices
or administrative units of the workplace
referred to sub-section (1):

Provided further that in case the other
offices or administrative units of the
workplace do not have a senior level woman
employee, the Presiding Officer shall be

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40

nominated from any other workplace of the
same employer or other department or
organization;

(b) not less than two Members from
amongst employees preferably committed to
the cause of women or who have had
experience in social work or have legal
knowledge;

                                 (c)    one       member            from     amongst
nongovernmental organisations or
associations committed to the cause of

women or a person familiar with the issues
relating to sexual harassment. Provided that
at least one-half of the total Members so
nominated shall be women.

(3)The Presiding Officer and every
Member of the Internal Committee shall hold
office for such period, not exceeding three
years, from the date of their nomination as
may be specified by the employer.

(4) The Member appointed from
amongst the non-governmental organisations
or associations shall be paid such fees or
allowances for holding the proceedings of the
Internal Committee, by the employer, as may
be prescribed.

(5) Where the Presiding Officer of any
Member of the Internal Committee,-

                                 (a)    contravenes           the     provisions     of
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41

section 16; or

(b) has been convicted for an offence or
an inquiry into an offence under any law for
the time being in force is pending against
him; or

(c) he has been found guilty in any
disciplinary proceedings or a disciplinary
proceeding is pending against him; or

(d) has so abused his position as to
render his continuance in office prejudicial to
the public interest, Such Presiding Officer or
Member, as the case may be, shall be
removed from the Committee and the
vacancy so created or any casual vacancy
shall be filled by fresh nomination in
accordance with the provisions of this section.

This clause provides for the constitution
of Internal Complaints Committee. It provides
that every employer of a workplace shall
constitute, by an order in writing, a
Committee to be known as the “Internal
Complaints Committee”. It further provides
that where the offices or administrative units
of the workplace are located at different
places or divisional or sub-divisional level, the
Internal Committee shall be constituted at all
administrative units or offices.

It also provides that employer shall
nominate members of the Internal Committee
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42

which shall consist of–

(a) a Presiding Officer who shall be
woman employed at a senior level at
workplace from amongst the employees;

(b) not less than two Members from
amongst employees preferably committed to
the cause of women or who have had
experience in social work or have legal
knowledge and

(c) one member from amongst non-

governmental organisations or associations
committed to the cause of women or a person
familiar with the issues relating to sexual
harassment. Out of these members at least
onehalf shall be nominated from amongst
women.

It also provides that the term of the
Presiding Officer and every Member of the
Internal Committee shall be specified by the
employer which shall not exceed three years
from the date of their nomination and their
fees or allowances for holding the proceedings
of the Internal Committee, as may be
prescribed by rules made in the behalf, shall
be paid by the employer.

                                 It   also      provides    that       the    Presiding
Officer or any Member of the Internal
Committee shall be removed from the
Committee, if he -
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43

(a) contravenes the provisions of
section 16; or

(b) has been convinced for an offence
or an inquiry into an offence under any law for
the time being in force is pending against
him; or

(c) he has been found guilty in any
disciplinary proceedings or a disciplinary
proceeding is pending against him; or

(d) has so abused his position as to
render his continuance in office prejudicial to
the public interest, and the vacancy so
created or any casual vacancy shall be filled
by fresh nomination in accordance with the
provisions of this clause.”

59. Chapter IV deals with “complaint of sexual

harassment” under Section 9 a complaint to be filed. Section 10

deals with “Conciliation” and Section 11 provides “Inquiry into

complaint”.

60. The “action to be taken during the pendency of

enquiry” is contemplated in Chapter V Section 12 and Section 13

deals with Inquiry report. Section 14 prescribes “Punishment for

false or malicious complaint and false evidence” and Chapter VI

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44

Section 19 deals with the Duties of employer.

61. The Supreme Court of India in the case of Vishaka

and Others Vs. State of Rajasthan Ors. [1997 (7) SCC 323],

also reaffirmed that sexual harassment at workplace is a form of

discrimination against women and recognised that it violates the

constitutional right to equality and provided guidelines to address

this issue pending the enactment of a suitable legislation. While

dealing with various aspects of the matter, the Hon'ble Supreme

Court held as follows:-

Page No. 247 Paragraph No.6:

“5.Apart from Article 32 of the
Constitution of India, we may refer to
some other provisions which envisage
judicial intervention for eradication of this
social evil. Some provisions in the
Constitution in addition to Articles 14,
19(1)(g) and 21, which have relevance
are:

Article 15:

“15. Prohibition of discrimination on
grounds of religion, race, caste, sex or
place of birth –
(1) The State shall not discriminate
against any citizen on grounds only of
religion, race, caste, sex, place or birth or
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45

any of them.

                                (2) * * *
(3) Nothing in this article shall
prevent the State from making any
special provision for women and
children.”
Article 42:
“42.Provision for just and humane

conditions of work and maternity relief.

The State shall make provision for
securing just and humane conditions of
work and for maternity relief.”
Article 51-A:-

“51-A. Fundamental duties: It shall
be the duty of every citizen of India. (a)
to abide by the Constitution and respect
its deals and institutions, ....,

(b)-(d)

(e) to promote harmony and the
spirit of common brotherhood amongst all
the people of India transcending religious,
linguistic and regional or sectional
diversities; to renounce practices
derogatory to the dignity of women;”

6. Before we refer to the
international conventions and norms
having relevance in this field and the
manner in which they assume significance
in application and judicial interpretation,
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46

we may advert to some other provisions
in the Constitution which permit such use.

These provisions are:

Article 51:

                                  “51.     Promotion         of    international
peace and security. The State shall

endeavour to (a)- (b) (C) foster respect
for international law and treaty
obligations in the dealings of organised
peoples with one another; and
Article 253:

“253. Legislation for giving effect to
international agreements. Notwith-

standing anything in the foregoing
provisions of this Chapter, Parliament has
power to make any law for the whole or
any part of the territory of India for
implementing any treaty, agreement or
convention with any other country or
countries or any decision made at any
international conference, association or
other body.”
Seventh Schedule:

“List 1 – Union List 14. Entering into
treaties agreements with foreign
countries and implementing of treaties,
agreements and conventions with foreign
countries.”
Page No. 249 Paragraph No.11:

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47

“11. The obligation of this Court
under Article 32 of the Constitution for
the enforcement of these fundamental
rights in the absence of legislation must
be viewed along with the role of judiciary
envisaged in the Beijing Statement of
Principles of the Independence of the
Judiciary in the LAWASIA region. These
principles were accepted by the Chief
Justices of Asia and the Pacific at Beijing
in 1995 as those representing the
minimum standards necessary to be
observed in order to maintain the
independence and effective functioning of
the judiciary. The objectives of the
judiciary mentioned in the Beijing
Statement are:

"Objectives of the Judiciary:

10. The objectives and functions of
the Judiciary include the following:

(a) to ensure that all persons are
able to live securely under the Rule of
Law;

(b) to promote, within the proper
limits of the judicial function, the
observance and the attainment of human
rights; and

(c) to administer the law impartially
among persons and between persons and
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48

the State."

Page No. 250 Paragraph No.12:

12. Some provisions in the
'Convention on the Elimination of All
Forms of Discrimination against Women',
of significance in the present context are:

Article 12 :

"1. States Parties shall take all
appropriate measures to eliminate
discrimination against women in the field
of employment in order to ensure, on
basis of equality of men and women, the
same rights, in particular:

(a) The right to work as an
inalienable right of all human beings;

xxxx xxxxx xxxx

(f) The right to protection of health
and to safety in working conditions,
including the safeguarding of the function
of reproduction.

xxx xxxxx xxxxx
Article 24:

"States Parties undertake to adopt
all necessary measures at the national
level aimed at achieving the full
realization of the rights recognised in the
present Convention."

Page No. 252 to 254 Paragraph
No.17:

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49

17. The GUIDELINES and NORMS
prescribed herein are as under:-

HAVING REGARD to the definition of
'human rights' in Section 2(d) of the
Protection of Human Rights Act, 1993,
TAKING NOTE of the fact that the present
civil and penal laws in India do not
adequately provide for specific protection
of women from sexual harassment in
work places and that enactment of such
legislation will take considerable time, It
is necessary and expedient for employers
in work places as well as other
responsible persons or institutions to
observe certain guidelines to ensure the
prevention of sexual harassment of
women:

1. Duty of the Employer or other
responsible persons in work places and
other institutions: It shall be the duty of
the employer or other responsible
persons in work places or other
institutions to prevent or deter the
commission of acts of sexual harassment
and to provide the procedures for the
resolution, settlement or prosecution of
acts of sexual harassment by taking all
steps required.

                                 2.    Definition:       For        this    purpose,
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50

sexual harassment includes such
unwelcome sexually determined
behaviour (whether directly or by

implication) as: a) physical contact and
advances; b) a demand or request for
sexual favours; c) sexually coloured
remarks; d) showing pornography; e) any
other unwelcome physical verbal or non-
verbal conduct of sexual nature. Where
any of these acts is committed in
circumstances where under the victim of
such conduct has a reasonable
apprehension that in relation to the
victim's employment or work whether she
is drawing salary, or honorarium or
voluntary, whether in government, public
or private enterprise such conduct can be
humiliating and may constitute a health
and safety problem. It is discriminatory
for instance when the woman has
reasonable grounds to believe that her
objection would disadvantage her in
connection with her employment or work
including recruiting or promotion or when
it creates a hostile work environment.
Adverse consequences might be visited if
the victim does not consent to the
conduct in question or raises any
objection thereto.

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51

3. Preventive Steps: All employers
or persons in charge of work place
whether in the public or private sector
should take appropriate steps to prevent
sexual harassment. Without prejudice to
the generality of this obligation they
should take the following steps: (a)
Express prohibition of sexual harassment
as defined above at the work place should
be notified, published and circulated in
appropriate ways. (b) The Rules/
Regulations of Government and Public
Sector bodies relating to conduct and
discipline should include rules/regulations
prohibiting sexual harassment and
provide for appropriate penalties in such
rules against the offender. (c) As regards
private employers steps should be taken
to include the aforesaid prohibitions in the
standing orders under the Industrial
Employment (Standing Orders) Act, 1946.

(d) Appropriate work conditions should be
provided in respect of work, leisure,
health and hygiene to further ensure that
there is no hostile environment towards
women at work places and no employee
woman should have reasonable grounds
to believe that she is disadvantaged in
connection with her employment.

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52

4. Criminal Proceedings: Where
such conduct amounts to a specific

offence under the Indian Penal Code or
under any other law the employer shall
initiate appropriate action in accordance
with law by making a complaint with the
appropriate authority. In particular, it
should ensure that victims, or witnesses
are not victimized or discriminated
against while dealing with complaints of
sexual harassment. The victims of sexual
harassment should have the option to
seek transfer of the perpetrator or their
own transfer.

5. Disciplinary Action: Where such
conduct amounts to mis-conduct in
employment as defined by the relevant
service rules, appropriate disciplinary
action should be initiated by the employer
in accordance with those rules.

6. Complaint Mechanism: Whether
or not such conduct constitutes an
offence under law or a breach of the
service rules, an appropriate complaint
mechanism should be created in the
employer's organization for redress of the
complaint made by the victim. Such
complaint mechanism should ensure time
bound treatment of complaints.

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53

7. Complaints Committee: The
complaint mechanism, referred to in (6)
above, should be adequate to provide,
where necessary, a Complaints
Committee, a special counsellor or other
support service, including the
maintenance of confidentiality. The
Complaints Committee should be headed
by a woman and not less than half of its
member should be women. Further, to
prevent the possibility of any under
pressure or influence from senior levels,
such Complaints Committee should
involve a third party, either NGO or other
body who is familiar with the issue of
sexual harassment. The Complaints
Committee must make an annual report
to the government department concerned
of the complaints and action taken by
them. The employers and person in
charge will also report on the compliance
with the aforesaid guidelines including on
the reports of the Complaints Committee
to the Government department.

8. Workers' Initiative: Employees
should be allowed to raise issues of
sexual harassment at workers meeting
and in other appropriate forum and it
should be affirmatively discussed in
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54

Employer-Employee Meetings.

9. Awareness: Awareness of the
rights of female employees in this regard
should be created in particular by
prominently notifying the guidelines (and
appropriate legislation when enacted on
the subject) in suitable manner.

10. Where sexual harassment
occurs as a result of an act or omission by
any third party or outsider, the employer
and person in charge will take all steps
necessary and reasonable to assist the
affected person in terms of support and
preventive action.

11. The Central/State Governments
are requested to consider adopting
suitable measures including legislation to
ensure that the guidelines laid down by
this order are also observed by the
employers in Private Sector.

12. These guidelines will not
prejudice any rights available under the
Protection of Human Rights Act, 1993.”

62. Thus, all the aspects in this regard are

unambiguously provided under the Act itself. Such being the

provisions enacted for the welfare and protection of women at

workplace, it is the duty of the employer to ensure that such an
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55

environment is created for the purpose of creating the society in

which women can work in peace and put their efforts for the

development of our great nation and contribute their services.

63. With reference to the specific ground raised by the

learned Senior Counsel appearing on behalf of Dr.S.Murugan, this

Court is bound to consider the scope of the provisions. Undoubtedly,

Section 10 deals with conciliation. In the present case, the matter

travelled beyond the scope of conciliation and the complainant in

clear terms expressed her consent to initiate criminal action against

Dr.S.Murugan. Section 11 denotes inquiry into the complaint.

Undoubtedly, an enquiry by the Internal Complaints Committee is

mandatory to initiate all further actions under Section 11 of the Act.

If the Committee after conducting an enquiry into the complaint in

accordance with the provisions of the Service Rules applicable to the

respondents found that there is a prima facie case exists, then

forward the complaint to the Police within the period of seven days

for registering a case under Section 509 under the Indian Penal

Code and any other relevant provisions of the said Code were

applicable.

64. Section 11 of the Act contemplates an enquiry to be
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56

conducted before forwarding the complaint and for registration of a

criminal complaint under the Indian Penal Code. The very object of

Section 11 is to ensure that no criminal complaint is registered

before conducting an enquiry in respect of the complaint made

against any person or a co-employee or the higher official. When

Section 11 specifically states that an enquiry is to be conducted

before forwarding the complaint to the police for registration of a

criminal complaint, this Court cannot brush aside the independent

provisions enumerated in Chapter VI of the Sexual Harassment Act.

65. Chapter VI of the Sexual Harassment Act deals with

duties of an employer. Section 19(g) of the Act enumerates that

every employer shall provide assistance to the woman if she so

chooses to file a complaint in relation to the offence under the

Indian Penal Code (45 of 1860) or any other law for the time being

in force.

66. Thus, two distinct and different aspects are to be

considered by this Court.

67. Firstly, if a complaint is filed by any aggrieved

woman employee or a person, the employer must constitute an
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57

Internal Complaints Committee in consonance with Section 4 of the

Act. The Internal Complaints Committee so constituted may suggest

for a conciliation to be arrived between the parties with reference to

Section 10 of the Sexual Harassment Act. If there is no possibility of

conciliation under Section 10, then the Internal Complaints

Committee must conduct an enquiry under Section 11 of the

Women Harassment Act.

68. Section 11 contemplates that on conducting the

enquiry, if the Internal Complaints Committee found a prima facie

case against the person against whom such a complaint is made,

then forward the complaint to the police within the period of seven

days for registering the case under Section 509 of the Indian Penal

Code. Chapter VI of the Sexual Harassment Act, is to be read

harmoniously as well as independently. The duties of the employer

under Chapter VI of the Act, enumerates that provide assistance to

the woman if she so chooses to file a complaint in relation to the

offence under the Indian penal Code or any other law for the time

being in force.

69. Section 19(g) of the Act is an enabling provision for

an aggrieved woman to straight away prefer a complaint and if such
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58

an aggrieved person has chosen to do so, then it is the duty of the

employer to provide assistance to the aggrieved woman. Thus, this

provision is to be interpreted constructively and independently with

reference to the purpose and object sought to be achieved through

the enactment.

70. The Constitutional Courts time and again ruled that

the statement of the sexual harassment victim or the statement of a

woman under the pressure of sexual harassment is to be considered

as valid first information. For the purpose of registering the criminal

case and to proceed with the investigation, the statement of an

aggrieved woman against such heinous offences are to be taken

into account as the first evidence in view of the fact that the social

and cultural background prevailing in our Great Nation is that,

where the woman in normal circumstances would not prefer such a

complaint of sexual harassment against any person. The statements

are to be taken for consideration by the officials

concerned/competent authorities for the purpose of conducting

investigation or enquiry in accordance with law.

71. Examining the case on hand, the complainant

Smt.H.Jayalakshmi is serving in the rank of the Superintendent of
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59

Police, who is an IPS rank official. The complaint is made against the

Inspector General of Police rank official. The complainant, who is

also a Senior Police Officer, knows the consequences and other

impacts in respect of the complaint made by her. When she is the

responsible higher level Police Officer serving in the Department for

more than 15 years, this Court is of an undoubted opinion that such

a complaint filed by a responsible higher Police Officials can never

be brushed aside or kept aside in a casual manner. Such a

complaint must be looked into seriously and appropriate actions

must be taken by the authorities concerned. Thus, this Court has no

hesitation in coming to a definite conclusion that the complaint

cannot be taken so lightly and the seriousness of the complaint

must be realised by the State as well as by the other Superior

Officials.

72. This Court has shown an anxious consideration that

if a higher level Woman IPS Officer is unable to initiate action in

respect of such allegations, then the plight of the woman

employees, who all are working in subordinate cadres in various

offices, organisations and Government Departments are certainly a

great concern for everybody.

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60

73. This Court has carefully gone through the affidavit

filed by Dr.S.Murugan in support of the writ petition filed by him in

WP No.25213 of 2018. He has stated in the affidavit that the

complainant has given a false complaint against him alleging sexual

harassment. The complaint is filed with ulterior motive. It is further

stated that such a complaint is filed to sabotage his career and

reputation. However, the writ petitioner has not narrated the facts,

circumstances or events relating to the allegations set out in clear

terms in the complaint dated 4.8.2018.

74. May that it be. Dr.S.Murugan would have thought

that all such grounds are to be enquired into and he would be

provided with an opportunity by the ICC to rebut all those

contentions. However, the manner in which the defence is made in

the writ petition in respect of the complaint is also to be looked into,

to draw an inference that the complaint cannot be brushed aside or

neglected in a casual manner.

75. Straight reading of the provisions of the Sexual

Harassment Act, Section 19(g) is unambiguous in respect of the

assistance to be provided by the employer. It stipulates that it is the

duty of the employer to provide assistance to the woman, if she so
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61

chooses to file a complaint in relation to the offence under the

Indian Penal Code or any other law for the time being in force. The

very object of incorporating such a provision as a duty to the

employer by the Legislators are that there may be some

circumstances for a woman to realise that the offence of sexual

harassment committed by a person is of such a nature warranting a

criminal action. A woman, who is inside the official chamber of a

higher level official alone may have the knowledge about the nature

of the offence committed by the person against whom the complaint

is made. That is the reason why the Courts have consistently held

that the statement of a woman under those circumstances in a

private place must be taken as it is as a first information and

appropriate actions and investigations must be set in motion.

76. Let us consider the circumstances. A Senior Police

Official is calling the subordinate officials for discussion about the

official files very frequently and even in an unusual manner. The

woman police official is duty bound to go to the Chambers of the

higher official and explain the official's duties and responsibilities

performed by them. In those circumstances, if the higher official

advances certain sexual acts, then it may be a surprise or it may be

a compelling circumstance for the woman employee to defend
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62

herself. She may be in an utter confusion. What so high position of

the woman officer is. She may not be in a position to defend quickly

in view of the fact that she will be having concern about her career

and other consequences. Thus, she required some breathing time to

react.

77. In the present case, the complainant, who is an

Officer in the rank of Superintendent of Police, had immediately

reacted and went out from the chambers of Dr.S.Murugan as per

the complaint dated 4.8.2018.

78. It is pertinent to note that an immediate information

was provided to the higher official by the complainant. On the next

day i.e., on 4.8.2018, a written complaint was also submitted for all

further actions.

79. Let us now look into the nature of the complaint

submitted by Smt.H.Jayalakshmi. The complaint submitted by

Smt.H.Jayalakshmi reads as under:-

“Strictly confidential
Date: 04.08.2018
From
H.Jayalakshmi,
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63

Superintendent of Police,
Directorate of Vigilance and Anti-Corruption,
Chennai.

To
The Director,
Vigilance and Anti-Corruption,
Chennai.

                                Subject:      Complaint             on      sexual
harassment (provisions attracting Visaka

guidelines) against Thiru Murugan, IPS, Joint
Director, Directorate of Vigilance and Anti-
Corruption, Chennai.

Respected Sir,
With deepest anguish and agony, I am
writing this complaint to you.

I am levelling charges of harassment
and intimidation against Thiru Murugan, IPS,
Joint Director, Director of Vigilance and Anti-

Corruption, Chennai. I am posted as
Superintendent of Police at Chennai since
30.8.2016 and I report to him from the date
of his assumption of office on 14.7.2017.

I am committed to work with excellence
and efficient and hold an impeccable integrity
throughout my service in Police department. I
have always accomplished my task and duties
to utmost satisfaction of my superiors and
sincerely discharge my duties to my
conscience and satisfaction of my superiors.

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64

I believe that since Thiru Murugan, IPS
assured office as Joint Director, DVAC, I
noticed that his behaviour towards me was
unprofessional.

After Thiru Murugan, IPS joined DVAC,
he used to call me during night hours and
since he was my superior, I respond to him
and update him about the surprise checks
and office work. But very sooner, I observed
that his night calls were unprofessional since
he posing questions too personal and close to
my personal life. Hence when I understand
that there was no other office work to be
reported, I started avoiding attending his
voice calls and if any situation warrant to
keep him posted, I send him message
pertaining to my office work.

After this, Thiru Murugan, IPS often
called me to his room at office separately in
name of “discussion of office files”, and then
his conversation will turn on my dressing,
looks, and hairstyle. He personally made lewd
and sarcastic comments and spoke in double
meaning manner which was unwarranted and
made me feel uncomfortable.

Since he was my superior, I refrained
from responding to such talks and say him
that, “Sir, There is nothing official to continue
this and I have to leave your room to do my
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65

work.”
Even after this incident, Thiru Murugan,
IPS started taking photos of mine using the
mobile whenever I enter his room and leave
despite my strong objections but he would
claim that he want to show them to his wife.

Though I am a police officer and want
to handle this issue myself initially, by giving
him time to understand his official capacity
and hinted him that I totally disown his
activities.

But after my action, Thiru Murugan, IPS
used to shout at me over the office files
seeking doubts despite I clarify them to him
by phone and in person. He often mentioned
in file noting as “Discuss” and return the files
which I respond him whenever he needs
clarification or briefing on those files.

Despite these, I found that Thiru
Murugan, IPS has not changed his approach
and rather than changing his attitude, he
started to threaten me that, “I am in an
official position to ensure that I would
prevent you from getting into IPS since I can
write adverse remarks in your Annual
Confidential Report (ACR).” He indirectly
meant to convey the message that he may
act against me if I don't cooperate with him.

Thiru Murugan, IPS started making me
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66

calls for 20-25 times in whatsapp when I am
not in office and particularly he calls me
during late night hours.

Thiru Murugan, IPS being my Superior,
I respond to his calls and questions on official
lines. I believe I have maintained a good
official relation of a professional police officer
with him.

But in the instance began when Thiru
Murugan, IPS went to attend training at
National Police Academy at Hyderabad during
the month of May and June 2018.

In an unusual manner, he kept calling
me and asked my location details and started
making unwanted conversations which made
me anxious but avoided the calls. But I had
to talk to him since he is my superior
authority in office when he called under the
garb of official matter.

Another instance was within the office,
when Thiru Murugan, IPS often started calling
me often to his room as a habit during
afternoon post lunch which he prefer to take
rest and others are not allowed to meet him.
During those time, he attempt to make me sit
in his room in the form of posing questions
related to cases or seeking clarification on
them. But gradually, he will ask too many
personal questions, which make me feel
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67

uncomfortable.

When I respond and meet him, he
would say that “There is no reason but just
want to see you”. I have faced this
harassment very often and I have always
excused myself when he expressed such
desire.

Thiru Murugan, IPS activities, continued
when I am on leave or on holiday attending
my family commitments, and since his
intention was not good, I expressed my
dislike on his approach.

There were so many utterances, which
I have not been mentioned here. I have
maintained decency throughout my office and
it prevented me to divulge these incidents to
anyone these days.

Moreover, I was not prepared to face
any kind of adverse publicity if I lodge such a
complaint against Thiru Murugan, IPS since I
am aware that ultimately women officers
would be the sufferer at such instance of
lodging complaint. It might even tarnish the
image of the complainant. Hence I tolerated
his activity and tried to get myself out of the
DVAC.

To get out of this torture, I approached
few senior officers to get me a transfer. I also
sent a request to the DGP in this regard by
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68

Whatsapp. I did everything to handle this
harassment smoothly without creating a
controversy.

I have made the best of my tolerance in
maintaining the dignity of women police
officer but Thiru Murugan, IPS took my
tolerance level for granted and emboldened
to harass me physically.

On 1.8.2018, Thiru Murugan, IPS at
around 1.30 pm to 2 pm, while I was in my
chamber, I was called by Thiru Murugan, IPS
to his room. Once I entered he again started
to talk personally and at one stage, he locked
his room from inside. When I questioned his
action, he approached near me and tried to
“hug me physically”.

I was deeply upset over his action and
heavily shocked over his behaviour. I
refrained to abide his desire and left his
room.

After this incident, I cam to a decision
that, as a woman, I am no longer safer while
serving under Thiru Murugan, IPS.

Thereafter, I met Tmt.Vidya Kulkarni,
IPS and briefed the incident and with her
support, we met the Director General of
Police and IGP-Intelligence and orally brought
to their knowledge that I am facing such
intense harassment by Thiru Murugan, IPS.
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69

I believe that I am not the only person
who has undergone such harassment in the
service by Thiru Murugan, IPS and sincerely
want this nature of behaviour should be
disowned and eradicated.

I have joined Police Service with
deepest commitment and interest to serve
the department and society. I have used the
opportunities offered to me in various
positions I have been posted all these years.
I have greatest regards and devotion to my
service but has never come across such
mischievous actions during my service.

I experienced a mental and thereafter a
physical sexual harassment attempt by Thiru
Murugan, IPS, I am forced to lodge this
complaint in writing seeking to initiate an
enquiry against him and ensure safety of
women is protected in letter and spirit in our
glorified Police Force.

I am lodging this complaint against the
activities of Thiru Murugan, IPS whose
behaviour are fit to be dealt by law provisions
laid down by The Sexual Harassment of
Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013. It defies sexual
harassment as laid down by the Supreme
Court in the Vishakha and Others vs. State of
Rajasthan (1997) case.

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70

Unable to work under prevailing
circumstances which has caused me anxiety,
physical and mental stress, I have entered on
medical leave.

I seek to initiate criminal action against
Thiru Murugan, IPS and seek your protection
from him to establish any form of
communication with me or my immediate
family members or friends.

I also request you to issue direction to
concern to protect my privacy and details of
my complaint from Right to Information Act,
as laid down by provisions of law.

Thanking you Sir,
Yours sincerely,

s/d.............

4.8.18
H.Jayalakshmi
Superintendent of Police
Mobile: 9444772222
Copy to: (Marked as strictly confidential)

1) Tmt.Girija Vaidiyanathan, IAS, State Chief
Secretary, Government of Tamil Nadu,
Chennai.

2) Thiru Mohan Pyare, IAS, State Vigilance
Commissioner, Government of Tamil Nadu,
Chennai.

3) Dr.Niranjan Mardi, IAS, State Home
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71

Secretary, Government of Tamil Nadu,
Chennai.

4) The Director General of Police, Head of
Police Force, Tamil Nadu Police, Chennai.”

80. Pursuant to the complaint, an action was taken. Not

satisfied with the constitution of the Internal Complaints Committee,

the complainant met all the higher officials for fair and free enquiry

to be conducted under the Harassment Act. The Higher Authorities

immediately would have analysed the situation and acted promptly

in constituting the higher level Committee. However, no such higher

level Committee was constituted.

81. At the first instance, the Committee was constituted

under the Chairmanship of Smt.A.Radhika, IPS, Deputy Director,

DVAC. It is a mockery on the part of the authorities concerned to

appoint an Officer in the rank of Deputy Director, DVAC as the

Presiding Officer to conduct an enquiry against the Inspector

General of Police/Joint Director, working in the same Department of

Vigilance and Anti-Corruption.

82. The police personnels, serving in the Department of

Vigilance and Anti-Corruption, are expected to be prudent, vigilant
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72

and independent. Day-in and Day-out, they are dealing with

corruption cases against the public servants under the Prevention of

Corruption Act. Department of Vigilance and Anti-Corruption is

prosecuting the public servants for their corrupt activities. These

Police personnels are well versed with the process of investigation

and the procedures of trial etc., conducted by the Criminal Courts.

Such being the factum, one cannot expect that an officer in the rank

of the Director of Vigilance and Anti-Corruption, treated the

complaint lightly.

83. One can easily visualise that such an exercise is

done either to frustrate the enquiry or to compromise or to settle

the complaint. However, on objection, another Internal Complaints

Committee was reconstituted with the Chairmanship of

Smt.Srilakshmi Prasad, IPS in the rank of Director General of Police.

This Court is of an opinion that the State, being a model employer,

is bound to appoint a Committee consisting of higher officials in

respect of the complaint submitted by the higher level women

officials against their own higher officials. However, the present

Committee constituted in proceedings dated 4.10.2018 under the

Chairmanship of Smt.Srilakshmi Prasad, IPS in the rank of Director

General of Police is in compliance with the statutory requirements
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73

so as to conduct an enquiry under the provisions of the Women

Harassment Act. Thus, the reconstitution of the Committee issued in

order dated 4.10.2018 is in consonance with the provisions of the

Harassment Act. Thus, there is no impediment for the present

Committee to proceed with the enquiry by providing opportunity to

all the parties concerned under Section 11 of the Act.

84. As far as Section 19 of the Sexual Harassment Act is

concerned, this Court is of an opinion that the constructive

interpretation is certainly warranted. The plain reading and adopting

the principles of constructive interpretation, it is the duty of the

employer to provide assistance to the aggrieved woman, if she so

chooses to file a complaint in relation to the offence under the

Indian Penal Code or any other law for the time being in force.

85. In respect of the present case, the complainant Smt.

H.Jayalakshmi filed a complaint before the Director of Vigilance and

Anti-Corruption Department on 4.8.2018. The very complaint states

that “I seek to initiate criminal action against Thiru Murugan, IPS

and seek your protection from him to establish any form of

communication with me or my immediate family members or

friends”. The complainant in unambiguous terms stated that she
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74

seeks to initiate criminal action against Dr.S.Murugan. Thus, the

complainant intended to register a police complaint. If such an

intention is expressed in the original complaint dated 4.8.2018, the

employer is duty bound to provide an assistance to the woman

under Section 19(g) of the Harassment Act.

86. Reiterating the said complaint, Smt.H.Jayalakshmi

complainant in her letter dated 27.8.2018 addressed to Smt.Seema

Agrawal, IPS, Presiding Officer, Internal Complaints Committee that

“considering the culpability of the Act of the respondent, it is also

incompetent on the establishment to assist the aggrieved woman

Officer to initiate criminal proceedings under Sections 341, 354 and

509 IPC r/w Section 4 of Tami Nadu Prohibition of Harassment of

Women Act, 1998 under the enabling provision of Section 19(g) of

The Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act, 2013.” This made the Committee to

forward the complaint to the CBCID for registration of a criminal

case against Dr.S.Murugan.

87. Let us now look into the procedures adopted by the

Internal Complaints Committee. Undoubtedly, the Internal

Complaints Committee forwarded the complaint to the CBCID for
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75

registration of a police complaint. Section 19(g) of the Sexual

Harassment Act provides that if an intention is expressed by the

complainant in her complaint, then it is the duty of the employer to

provide assistance to the woman to file a complaint under the

Indian Penal Code. Thus, forwarding of the complaint for

registration of an FIR by the ICC, though questioned, the very

registration of an FIR cannot be found fault with, because the

original complaint dated 4.8.2018 submitted by the complaint

Smt.H.Jayalakshmi unambiguously enumerates her intention to

initiate criminal action against Dr.S.Murugan, IPS and seek

protection from him to establish any form of communication with

the complainant. The intention expressed by the complainant in her

original complaint portrays that she had intended to initiate criminal

action and therefore, it is duty mandatory on the part of the

employer, namely, the Director of Vigilance and Anti-Corruption to

provide assistance to the complainant under Section 19(g) of the

Act, to register a police complaint under the Indian Penal Code in

forwarding the said complaint to the Police Officer concerned.

88. The complaint submitted by Smt.H.Jayalakshmi was

forwarded by the Internal Complaints Committee to the CBCID for

registering an FIR and for investigation. Accordingly, the FIR also
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76

was registered under Section 19(g) of the Sexual Harassment Act.

On receipt of the written complaint from Smt.H.Jayalakshmi on

4.8.2018, the employer ought to have forwarded the complaint for

registering an FIR. However, the lapse occurred on account of the

reasons known to the employer. The subsequent forwarding of the

complaint for registration of an FIR by CBCID cannot be found fault

with in view of the fact that registration of a criminal case requires

only an information and it is not necessary that it must be

forwarded only by the employer and cannot by the Internal

Complaints Committee.

89. In the present case on hand, the Internal

Complaints Committee has to conduct an enquiry under Section 11

of the Act for the purpose of initiation of all further actions under

the provisions of the Sexual Harassment Act. Under these

circumstances, forwarding the complaint to CBCID for registration of

an FIR can never be construed as an action initiated by the Internal

Complaints Committee under Section 11 of the Sexual Harassment

Act.

90. The employer ought to have forwarded the

complaint for registration of an FIR. Contrarily, the ICC forwarded
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77

the complaint for registering an FIR. Thus, the procedure adopted

would not vitiate the entire FIR itself. Ultimately the investigation

alone would reveal all further truths and only after trial, the case is

to be disposed of in accordance with law.

91. On these technical grounds, an FIR cannot be

vitiated. Even considering the circumstances that the ICC forwarded

the complaint to the CBCID, instead of to the regular police. This

Court is of an opinion that the complaint is given by a higher level

woman police officer in the rank of Superintendent of Police. The

complaint is against a Police Officer in the rank of Inspector General

of Police. Such a decision is taken in order to conduct fair and

impartial investigation. CBCID is a specialised Wing investigating

limited number of cases and therefore, the ICC thought fit that

CBCID would be an appropriate Agency to conduct the investigation

in an impartial manner.

92. It is brought to the notice of this Court that CBCID

has been allotted with restricted number of cases and therefore,

investigations in such nature of cases are to be entrusted with the

CBCID for effective and impartial investigation. Thus, this Court is of

an opinion that registering an FIR through CBCID is done to meet
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78

out the facts and circumstances and to ensure an impartial

investigation and proceed with accordingly.

93. The learned counsel, appearing on behalf of Smt.H.

Jayalakshmi, cited the judgment of the Hon'ble Supreme Court of

India in the case of P.Sirajuddin vs. State of Madras [AIR 1971

SC 520], and the relevant paragraph 23 of the said judgment is

extracted hereunder:-

“23. The office of the Directorate of
Vigilance and Anti-Corruption Department,
Madras, became a police station for the
purpose of the Criminal Procedure Code under
sub-clause (s) of sub-section (1) of Section 4
of the Code by a notification, dated 25th May,
1964. Prior to that it was only functioning
under a Memorandum No. 1356/64-2, dated
8th April, 1964 when it was set up to ensure
the maintenance of the highest standard of
integrity and probity in public servants. If the
investigation had been taken up after May 25,
1964 it would have been one under Chapter
14 of the Code without any doubt.”

94. Importantly, the Supreme Court of India in the case

of S.P.S.Rathore vs. CBI and Another [LAWS (SC)-2016-9-

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79

36], wherein in paragraph 22 it has been held as follows:-

“22. In order to constitute the
offence under Section 354 of the IPC,
mere knowledge that the modesty of a
woman is likely to be outraged is
sufficient without any deliberate
intention of having such outrage alone
for its object. There is no abstract
conception of modesty that can apply to
all cases. A careful approach has to be
adopted by the Court while dealing with
a case alleging outrage of modesty. The
essential ingredients of the offence
under Section 354 IPC are as under:-

(i) that the person assaulted must
be a woman;

(ii) that the accused must have
used criminal force on her; and

(iii) that the criminal force must
have been used on the woman intending
thereby to outrage her modesty.”

95. In the case, cited supra, the Hon'ble Supreme Court

categorically enumerates that “mere knowledge that the modesty of

a woman is likely to be outraged is sufficient without any deliberate

intention of having such outrage alone for its object.“

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80

96. The term is to be construed carefully and with

reference to the facts and circumstances of the case. On a plain

reading of the complaint given by the complainant dated 4.8.2018,

it is stated in unambiguous terms and one paragraph alone reads as

under:-

“On 1.8.2018, Thiru Murugan,
IPS at around 1.30 pm to 2 pm, while
I was in my chamber, I was called by
Thiru Murugan, IPS to his room. Once
I entered he again started to talk
personally and at one stage, he locked
his room from inside. When I
questioned his action, he approached
near me and tried to “hug me
physically”.

97. When a woman Police Officer in the rank of

Superintendent of Police, making such a statement, this Court is of

the considered opinion that such a statement requires a serious

consideration warranting a deeper enquiry and appropriate action

against the person, the allegation is made. Enquiry is mandatory

and the higher officials by this time ought to have conducted an

enquiry. The matter is kept in abeyance for the past about six

months unfortunately by raising the dispute regarding the

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81

constitution of the Internal Complaints Committee.

98. Therefore, this Court has shown an anxious

consideration in respect of the nature of the complaint made against

the Police Officer in the rank of I.G. of Police. On a plain reading of

the complaint itself is sufficient to note that the allegations raised

are affecting the modesty of a woman and therefore, registration of

a criminal case under the Indian Penal Code is just and necessary.

99. The complainant, beyond her capacity as an IPS,

level officer, basically, she is a citizen of this great Nation. Thus,

registering of a criminal case is her fundamental right ensured

under the Constitution of India. Such a valuable right provided

under the Indian Constitution to a women, as a citizen, cannot be

taken away by interpreting the provisions of the Sexual Harassment

Act, that it is a pre-condition to conduct an enquiry by the Internal

Complaints Committee. Thus, Section 19(g) of the Sexual

Harassment Act is to be constructively interpreted in conjunction

with the fundamental rights ensured under the Constitution of India.

Accordingly, there is no infirmity in respect of the registration of an

FIR by the CBCID, at the instance of the Internal Complaints

Committee, even before conducting an enquiry under Section 11 of
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82

the Sexual Harassment Act. Such an enquiry is to be proceeded with

hereafter. Thus, the insensitiveness shown by the authorities

competent on receipt of a Sexual Harassment complaint, cannot be

appreciated by this Court.

100. Thus, this Court has to come to the conclusion that

registration of an FIR is not infirm and the same is in accordance

with law and further investigations and prosecutions are certainly

warranted in view of the fact that the allegations set out in the

original complaint dated 4.8.2018 is serious in nature.

101. The learned counsel, appearing on behalf of

Smt.H.Jayalakshmi, further solicited the attention of this Court with

reference to Section 28 of the Women Harassment Act, which

stipulates “Act not in derogation of any other law”. Accordingly, the

provisions of the Act shall be in addition to and not in derogation of

the provisions of any other law for the time being in force.

Therefore, it is unambiguous that the action under the Sexual

Harassment Act by the employer is independent and the complaint

registered under the Indian Penal Code is also independent. In other

words, two fold actions are permissible with reference to the sexual

harassment complaint. The employer is empowered to constitute
http://www.judis.nic.in
83

the Internal Complaints Committee under Section 4 of the Act and

proceed with the enquiry and based on the report, initiate all further

actions under the provisions of the Act as well as under the Service

Rules in force, more specifically, under the Conduct and Discipline

Rules.

102. This apart, the FIR registered by the CBCID under

the Indian Penal Code must be proceeded with separately and

criminal trial must be conducted in accordance with law. Two

separate actions are independent, unconnected and permissible.

103. The Constitutional Courts have repeatedly held

that registration of a criminal case is not a bar for continuing the

departmental disciplinary proceedings under the Discipline and

Appeal Rules. Therefore, the provisions of the Sexual Harassment

Act are to be invoked by the employer and appropriate actions are

to be initiated after conducting an enquiry under Section 11 of the

Act. If the employer is of an opinion that an offence or a misconduct

is made out, then the employer has to initiate all further actions.

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84

104. The CBCID, who registered the FIR is also

empowered to conduct the investigation and proceed with the same

in accordance with law.

105. Beyond this, Chapter V of the Sexual Harassment

Act deals with enquiry and complaint. Section 12 deals with action

during pendency of inquiry. During the pendency of an inquiry, on a

written request made by the aggrieved woman, the Internal

Committee or Local Committee, as the case may be, may

recommend to the employer to transfer the aggrieved woman or the

respondent to any other workplace. This apart, as far as the person

against whom the complaint is made, registration of an FIR is also a

ground to initiate departmental disciplinary proceedings. Thus, if the

investigation is commenced by the CBCID police, then all

appropriate actions are to be initiated under the relevant Service

Rules, enabling the Investigating Officer as well as the Internal

Complaints Committee to proceed with the matter in an unbiased

manner and fairly. All such required actions are to be initiated by

the State as well as the Head of the Department to conduct free,

fair and unbiased enquiry and investigations are done properly.

106. In view of the adjudication made in the
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85

aforementioned paragraphs, this Court is inclined to pass the

following orders:-

(1) The Internal Complaints Committee/fifth respondent

in WP No.25213 of 2018 constituted under Section 4 of The Sexual

Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013 by the Director of Vigilance and Anti-

Corruption in proceedings Rc.No.A5/3572/2018 dated 4.10.2018

consists of Smt.Srilakshmi Prasad, IPS, Additional Director General

of Police, Smt.P.Kannammal, IPS, SP, CR, DVAC, Chennai,

Smt.M.Kanaga, Manager, Confidential Branch, DVAC, Chennai, Thiru

S.Ramadoss, DSP, HQRS, DVAC, Chennai and

Smt.K.M.Valsalakumari, Advocate, Madras High Court stands

confirmed.

(2) The ICC constituted is directed to proceed with the

enquiry by following the procedures contemplated under the Sexual

Harassment Act and by affording opportunity to all the parties

concerned and submit a report, within a period of two weeks from

the date of receipt of a copy of this order. If any further time is

required, the Internal Complaints Committee is at liberty to

approach this Court by filing appropriate petitions, seeking

extension of time.

(3) The CBCID, Headquarters is directed to proceed with
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86

all further actions pursuant to the registration of FIR No.2 of 2018

by commencing the investigation and to proceed with the case by

following the procedures contemplated under law.

(4) The Chief Secretary to Government/first respondent

in WP No.25213 of 2018, is directed to initiate all required further

actions against Dr.S.Murugan, IPS under the relevant Service Rules,

which are necessary under the facts and circumstances of the case

and, with reference to the complaint dated 4.8.2018 submitted by

Smt.H.Jayalakshmi as well as the FIR No.2 of 2018 registered by

the CBCID Headquarters;

(5) This Court strongly recommends to the Chief

Secretary to Government/first respondent in WP No.25213 of 2018,

for installation of CCTV Cameras inside the official Chambers and

office rooms of all the higher officials, in order to avoid all such

allegations/complaints against the higher officials and to safeguard

the interest of women officers and women employees from the

offences of sexual harassment.

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87

107. With the above directions, the writ petitions stand

disposed of. However, there shall be no order as to costs.

Consequently, connected miscellaneous petitions are closed.

The Registry, High Court of Madras, is directed to list

the matter under the caption “For Reporting Compliance” on

6.3.2019.

14-02-2019

Index : Yes.

Internet: Yes.

Speaking Order

Svn

http://www.judis.nic.in
88

To

1.The Chief Secretary to the Government,
State of Tamil Nadu,
Fort St George,
Chennai, Tamil Nadu.

2.The Home Secretary to the Government,
State of Tamil Nadu,
Fort St George,
Chennai, Tamil Nadu.

3.The Principal Secretary,
State of Tamil Nadu,
Home Department
Fort St George, Chennai-09.

4.The Additional Chief Secretary to Government,
State of Tamil Nadu,
Home Prohibition and Excise Department
Fort St George,
Chennai-09.

5.The Director General of Police,
Kamrajar Salai, Kailasapuram
Chennai-600005

6.The Director,
Vigilance and Anti-Corruption
No.293, MKN Road,
Collector Nagar,
Alandur,
Chennai-600016.

7.Dr.S.Murugan
Joint Director, DVAC
293, MKN Road,
Collector Nagar,
Alandur, Chennai-600 016.

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89

8.The Director General of Police,
Radhakrishnan Salai,
Mylapore,
Chennai-Tamil Nadu.

9.The Director,
Vigilance and Anti Corruption Department
No.293, MKN Road,
Alandur,
Chennai 600016.

10.The Internal Complaints Committee,
Represented by its Chairman,
Office of the Director General of Police
Radhakrishnan Salai,
Mylapore,
Chennai,
Tamil Nadu.

11.Tmt.H Jayalakshmi
Superintendent of Police
1-B, CID, Mandaveli,
Chennai- 600 028.

12.CBCID,
Egmore,
Chennai – 8.

Copy forwarded to:

The Registrar (Administration),
High Court,
Madras.

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90

S.M.SUBRAMANIAM, J.

Svn

W.P.Nos.25213, 23292,
23293 and 23846 of 2018

14-02-2019

http://www.judis.nic.in

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