Apparel Export Promotion Council vs A.K. Chopra on 20 January, 1999

Supreme Court of India
Apparel Export Promotion Council vs A.K. Chopra on 20 January, 1999 Author: D Anand
Bench: V.N.Khare

                  PETITIONER:

       APPAREL EXPORT PROMOTION COUNCIL

Vs.

       RESPONDENT:

       A.K. CHOPRA

       DATE OF JUDGMENT:

       BENCH:

       V.N.Khare

JUDGMENT:

1. ANAND, CJI :

20/01/1999

Special Leave granted. Does an action of the superior against a female employee which is against moral sanctions and does not withstand test of decency and modesty not amount to sexual harassment? Is physical contact with the female employee an essential ingredient of such a charge? Does the allegation that the superior tried to molest a female employee at the place of work, not constitute an act unbecoming of good conduct and behaviour expected from the superior? These are some of the questions besides the nature of approach expected from the law courts to cases involving sexual harassment which come to the forefront and require our consideration. Reference to the facts giving rise to the filing of the present Appeal by Special Leave at this stage is appropriate : The respondent was working as a Private Secretary to the Chairman of the Apparel Export Promotion Council, the appellant herein. It was alleged that on 12.8.1988, he tried to molest a woman employee of the Council, Miss X (name withheld by us) who was at the relevant time working as a Clerk-cum-Typist. She was not competent or trained to take dictations. The respondent, however, insisted that she go with him to the Business Centre at Taj Palace Hotel for taking dictation from the Chairman and type out the matter. Under the pressure of the respondent, she went to take the dictation from the Chairman. While Miss X was waiting for the Director in the room, the respondent tried to sit too close to her and despite her objection did not give up his objectionable behaviour. She later on took dictation from the Director. The respondent told her to type it at the Business Centre of the Taj Palace Hotel, which is located in the Basement of the Hotel. He offered to help her so that her typing was not found fault with by the Director. He volunteered to show her the Business Centre for getting the matter typed and taking advantage of the isolated place, again tried to sit close to her and touch her despite her objections. The draft typed matter was corrected by Director (Finance) who asked Miss X to retype the same. The respondent again went with her to the Business Centre and repeated his overtures. Miss X told the respondent that she would leave the place if he continued to behave like that. The respondent did not stop. Though he went out from the Business Centre for a while, he again came back and resumed his objectionable acts. According to Miss X, the respondent had tried to molest her physically in the lift also while coming to the basement but she saved herself by pressing the emergency button, which made the door of the lift to open. On the next day, that is on 16th August, 1988 Miss X was unable to meet the Director (Personnel) for lodging her complaint against the respondent as he was busy. She succeeded in meeting him only on 17th August, 1988 and apart from narrating the whole incident to him orally submitted a written complaint also. The respondent was placed under suspension vide an order dated 18th August, 1988. A charge-sheet was served on him to which he gave a reply denying the allegations and asserting that the allegations were imaginary and motivated. Shri J.D. Giri, a Director of the Council, was appointed as an Enquiry Officer to enquire into the charges framed against the respondent. On behalf of the management with a view to prove the charges as many as six witnesses were examined including Miss X. The respondent also examined seven witnesses. The Enquiry Officer after considering the documentary and oral evidence and the circumstances of the case arrived at the conclusion that the respondent had acted against moral sanctions and that his acts against Miss X did not withstand the test of decency and modesty. He, therefore, held the charges levelled against the respondent as proved. The Enquiry Officer in his report recorded the following, amongst other, findings : 8.1. Intentions of Shri A.K. Chopra were ostensibly manifested in his actions and behaviour; Despite reprimands from Miss X he continued to act against moral sanctions; 8.2. Dictation and subsequent typing of the matter provided Shri A.K. Chopra necessary opportunity to take Miss X to the Business Centre a secluded place. Privacy in the Business Centre room made his ulterior motive explicit and clear; 8.3. Any other conclusion on technical niceties which Shri A.K. Chopra tried to purport did not withstand the test of decency and modesty.

The Enquiry Officer concluded that Miss X was molested by the respondent at Taj Palace Hotel on 12th August, 1988 and that the respondent had tried to touch her person in the Business Centre with ulterior motives despite reprimands by her. The Disciplinary Authority agreeing with the report of the Enquiry Officer, imposed the penalty of removing him from service with immediate effect on 28th June, 1989. Aggrieved, by an order of removal from service, the respondent filed a departmental appeal before the Staff Committee of the appellant. It appears that there was some difference of opinion between the Members of the Staff Committee and the Chairman of the Staff Committee during the hearing, but before any decision could be arrived at by the Staff Committee, the respondent, on the basis of some unconfirmed minutes of the Staff Committee meeting, filed a Writ Petition in the High Court inter alia challenging his removal from service. On January 30, 1992, the Writ Petition was allowed and respondent Nos. 1 and 3, therein, were directed to act upon the decision of the Staff Committee, assuming as if the decision, as alleged, had been taken at the 34th Meeting of the Staff Committee on 25th July, 1990. The appellant challenged the judgment and order of the High Court dated 30th January, 1992, through Special Leave Petition (Civil) No.3204 of 1992 in this Court. While setting aside the judgment and order of the High Court dated 30th January, 1992, a Division Bench of this Court opined : We have been taken through the proceedings of the meeting starting from 33rd meeting upto 38th meeting by both the learned Counsel appearing for the respective parties. Considering the same it appears to us that the alleged decision taken on the said Agenda No.5 in the 33rd and 34th meeting is in dispute and final decision on the same has not yet been taken and the view of the matter, the High Court was wrong in deciding the disputed question of fact in favour of Respondent No.1. We, therefore set aside the impugned order of the Delhi High Court as according to us the final decision on the resolution taken on the said Agenda No.5 has not yet been finally ratified. We are not inclined to consider the other questions sought to be raised in this appeal and the said questions are kept open. In view of the pendency of the matter for a long time, we direct the appellant company to convene the meeting of Staff Committee as early as practicable but not exceeding two months from today so that the question of ratification of the resolution on the said Agenda No.5 taken in the meeting of the Staff Committee is finally decided.

Pursuant to the above directions, the Staff Committee met again and considered the entire issue and came to the conclusion that the order passed by the Director General terminating the services of the respondent on 28th June, 1989 was legal, proper and valid. The appeal was dismissed and the removal of the respondent for causing sexual harassment to Miss X was upheld. The respondent, thereupon, filed Writ Petition No.352 of 1995 in the High Court, challenging his removal from service as well as the decision of the Staff Committee dismissing his departmental appeal. The learned Single Judge allowing the Writ Petition opined that … the petitioner tried to molest and not that the petitioner had in fact molested the complainant. The learned Single Judge, therefore, disposed of the Writ Petition with a direction that the respondent be reinstated in service but that he would not be entitled to receive any back wages. The appellant was directed to consider the period between the date of removal of the respondent from service and the date of reinstatement as the period spent on duty and to give him consequential promotion and all other benefits. It was, however, directed that the respondent be posted in any other office outside Delhi, at least for a period of two years. The appellant being aggrieved by the order of reinstatement filed Letters Patent Appeal No.27 of 1997 before the Division Bench of the High Court. The respondent also filed Letters Patent Appeal No.79 of 1997 claiming back wages and appropriate posting. Some of the lady employees of the appellant on coming to know about the judgment of the learned Single Judge, directing the reinstatement of the respondent, felt agitated and filed an application seeking intervention in the pending L.P.A. The Division Bench vide judgment and order dated 15th July, 1997, dismissed the L.P.A. filed by the appellant against the reinstatement of the respondent. The Division Bench agreed with the findings recorded by the learned Single Judge that the respondent had tried to molest and that he had not actually molested Miss X and that he had not managed to make the slightest physical contact with the lady and went on to hold that such an act of the respondent was not a sufficient ground for his dismissal from service. Commenting upon the evidence, the Division Bench observed :

We have been taken in detail through the evidence/deposition of Miss X. No part of that evidence discloses that A.K. Chopra even managed to make the slightest physical contact with the lady. The entire deposition relates that A.K. Chopra tried to touch her. As we have said that no attempts made, allegedly by A.K. Chopra, succeeded in making physical contact with Miss X, even in the narrow confines of a Hotel lift. To our mind, on such evidence as that was produced before the Enquiry Officer, it is not even possible to come to a conclusion that there is an attempt to molest as there have been no physical contact. There being no physical contact between A.K. Chopra and Miss X, there cannot be any attempt to tried to molest on the part of A.K. Chopra. (Emphasis ours) Aggrieved by the judgment of the Division Bench, the employer- appellant has filed this appeal by special leave. We have heard learned counsel for the parties and perused the record. The Enquiry Officer has found the charges established against the respondent. He has concluded that the respondent was guilty of molestation and had tried to physically assault Miss X. The findings recorded by the Enquiry Officer and the Disciplinary Authority had been confirmed by the Appellate Authority (the Staff Committee) which admittedly had co-extensive powers to re-appreciate the evidence as regards the guilt as well as about the nature of punishment to be imposed on the respondent. The Staff Committee while dealing with the question of punishment has observed : Shri Chopra has also mentioned in his appeal that the penalty on him was harsh and disproportionate to the charge levelled against him. On this, the Staff Committee observed that no lenient view would be justified in a case of molestation of a woman employee when the charge was fully proved. Any lenient action in such a case would have a demoralizing effect on the working women. The Staff Committee, therefore, did not accept the plea of Shri Chopra that a lenient view be taken in his case.

The learned Single Judge, did not doubt the correctness of the occurrence. He did not disbelieve the complainant. On a re- appreciation of the evidence on the record, the learned Single Judge, however, drew his own inference and found that the respondent had tried to molest but since he had not actually molested the complainant, therefore, the action of the respondent did not warrant removal from service. The learned Single Judge while directing the reinstatement of the respondent observed : 15. In the totality of facts and circumstances, ends of justice would meet if the petitioner is reinstated in service but he would not be entitled to any back wages. The Council shall consider this period as on duty and would give him consequential promotion to the petitioner. He shall be entitled to all benefits except back wages. The petitioner shall be posted in any other office outside Delhi, at least for a period of two years.” (Emphasis ours) The Division Bench of the High Court also while dismissing the L.P.A. filed by the appellant did not doubt the correctness of the occurrence. It also concluded that since the respondent had not actually molested Miss X and had only tried to assault her and had not managed to make any physical contact with her, a case of his removal from service was not made out. Both the learned Single Judge and the Division Bench did not doubt the correctness of the following facts : 1. That Miss X was a subordinate employee while the respondent was the superior officer in the organization; 2. That Miss X was not qualified to take any dictation and had so told the respondent; 3. That the respondent pressurized her to come with him to Taj Palace Hotel to take dictation despite her protestation, with an ulterior design; 4. That the respondent taking advantage of his position, tried to molest Miss X and in spite of her protestation, continued with his activities which were against the moral sanctions and did not withstand the test of decency and modesty; 5. That the respondent tried to sit too close to Miss X with ulterior motives and all along Miss X kept reprimanding him but to no avail; 6. That the respondent was repeating his implicit unwelcome sexual advances and Miss X told him that if he continued to behave in that fashion, she would leave that place; 7. That the respondent acted in a manner which demonstrated unwelcome sexual advances, both directly and by implication; 8. That action of the respondent created an intimidated and hostile working environment in so far as Miss X is concerned.

The above facts are borne out from the evidence on the record and on the basis of these facts, the departmental authorities keeping in view the fact that the actions of the respondent were considered to be subversive of good discipline and not conducive to proper working in the appellant Organization where there were a number of female employees, took action against the respondent and removed him from service. The High Court appears to have over-looked the settled position that in departmental proceedings, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in Writ Jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Haltom in Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141, observed : The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the court.

Judicial Review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court while exercising the power of Judicial Review must remain conscious of the fact that if the decision has been arrived at by the Administrative Authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the Administrative Authority on a matter which fell squarely within the sphere of jurisdiction of that authority. It is useful to note the following observations of this Court in Union of India v. Sardar Bahadur, (1972) 4 SCC 618 : Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court.

After a detailed review of the law on the subject, this Court while dealing with the jurisdiction of the High Court or Tribunal to interfere with the disciplinary matters and punishment in Union of India v. Parma Nanda, (1989) 2 SCC 177, opined : We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Enquiry Officer or Competent Authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of Legislature or Rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter of exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority.

In B.C. Chaturvedi v. Union of India, (1995 ) 6 SCC 749, this Court opined : The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate them evidence or the nature of punishment. In a Disciplinary Enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal.

Further it was held :

A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.

( Emphasis supplied) Again in Government of Tamil Nadu and another v. A. Rajapandian, 1995(1) SCC 216, this Court opined : It has been authoritatively settled by string of authorities of this Court that the Administrative Tribunal cannot sit as a court of appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority. The Administrative Tribunal, in this case, has found no fault with the proceedings held by the inquiring authority. It has quashed the dismissal order by re-appreciating the evidence and reaching a finding different than that of the inquiring authority. (Emphasis ours) In the established facts and circumstances of this case, we have no hesitation to hold, at the outset, that both the learned Single Judge and the Division Bench of the High Court fell into patent error in interfering with findings of fact recorded by the departmental authorities and interfering with the quantum of punishment, as if the High Court was sitting in appellate jurisdiction. From the judgments of the learned Single Judge as well as the Division Bench, it is quite obvious that the findings with regard to an unbecoming act committed by the respondent, as found by the Departmental Authorities, were not found fault with even on re-appreciation of evidence. The High Court did not find that the occurrence as alleged by the complainant had not taken place. Neither the learned Single Judge nor the Division Bench found that findings recorded by the Enquiry Officer or the Departmental Appellate Authority were either arbitrary or even perverse. As a matter of fact, the High Court found no fault whatsoever with the conduct of Enquiry. The direction of the learned Single Judge to the effect that the respondent was not entitled to back wages and was to be posted outside the city for at least two years, which was upheld by the Division Bench, itself demonstrates that the High Court believed the complainants case fully for otherwise neither the withholding of back wages nor a direction to post the respondent outside the city for at least two years was necessary. The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on the respondent for his proven misconduct. To hold that since the respondent had not actually molested Miss X and that he had only tried to molest her and had not managed to make physical contact with her, the punishment of removal from service was not justified was erroneous. The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone. But there is another aspect of the case which is fundamental and goes to the root of the case and concerns the approach of the Court while dealing with cases of sexual harassment at the place of work of female employees. The High Court was examining disciplinary proceedings against the respondent and was not dealing with criminal trial of the respondent. The High Court did not find that there was no evidence at all of any kind of molestation or assault on the person of Miss X. It appears that the High Court re-appreciated the evidence while exercising power of judicial review and gave meaning to the expression molestation as if it was dealing with a finding in a criminal trial. Miss X had used the expression molestation in her complaint in a general sense and during her evidence she has explained what she meant. Assuming for the sake of argument that the respondent did not manage to establish any physical contact with Miss X, though the statement of management witness Suba Singh shows that the respondent had put his hand on the hand of Miss X when he surprised them in the Business Centre, it did not mean that the respondent had not made any objectionable overtures with sexual overtones. From the entire tenor of the cross-examination to which Miss X was subjected to by the respondent, running into about 17 typed pages and containing more than one hundred & forty questions and answers in cross-examinations, it appears that the effort of respondent was only to play with the use of the expressions molestation and physical assault by her and confuse her. It was not the dictionary meaning of the word molestation or physical assault which was relevant. The statement of Miss X before the Enquiry Officer as well as in her complaint unambiguously conveyed in no uncertain terms as to what her complaint was. The entire episode reveals that the respondent had harassed, pestered and subjected Miss X, by a conduct which is against moral sanctions and which did not withstand the test of decency and modesty and which projected unwelcome sexual advances. Such an action on the part of the respondent would be squarely covered by the term sexual harassment. The following statement made by Miss X at the enquiry : When I was there in the Chairmans room I told Mr. Chopra that this was wrong and he should not do such things. He tried to persuade me by talking. ……………………. I tried to type the material but there were so many mistakes. He helped me in typing. There he tried to blackmail me. …………….. He tried to sit with me. In between he tried to touch me………………………. Mr. Chopra again took me to the Business Centre. Thereafter again he tried. I told him I will go out if he does like this. Then he went out. Again he came back. In between he tried. (Emphasis supplied) unmistakably shows that the conduct of the respondent constituted an act unbecoming of good behaviour, expected from the superior officer. Repeatedly, did Miss X state before the Enquiry Officer that the respondent tried to sit close to her and touch her and that she reprimanded him by asking that he should not do these things. The statement of Miss Rama Kanwar, the management witness to the effect that when on 16th August she saw Miss X and asked her the reason for being upset, Miss X kept on weeping and told her she could not tell being unmarried, she could not explain what had happened to her. The material on the record, thus, clearly establishes an unwelcome sexually determined behaviour on the part of the respondent against Miss X which was also an attempt to outrage her modesty. Any action or gesture, whether directly or by implication, aims at or has the tendency to outrage the modesty of a female employee, must fall under the general concept of the definition of sexual harassment. The evidence on the record clearly establishes that the respondent caused sexual harassment to Miss X, taking advantage of his superior position in the Council. Against the growing social menace of sexual harassment of women at the work place, a three Judge Bench of this Court by a rather innovative judicial law making process issued certain guidelines in Vishaka v. State of Rajasthan, (1997) 6 SCC 241, after taking note of the fact that the present civil and penal laws in the country do not adequately provide for specific protection of woman from sexual harassment at places of work and that enactment of such a legislation would take a considerable time. In Vishakas case (supra), a definition of sexual harassment was suggested. Verma, J., (as the former Chief Justice then was), speaking for the three-Judge Bench opined : 2. Definition : For this purpose, 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 whereunder the victim of such conduct has a reasonable apprehension that in relation to the victims 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.

An analysis of the above definition, shows that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her. There is no gainsaying that each incident of sexual harassment, at the place of work, results in violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India. As early as in 1993 at the ILO Seminar held at Manila, it was recognized that sexual harassment of woman at the work place was a form of gender discrimination against woman. In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate. The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) and the Beijing Declaration which directs all State parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is loud and clear. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate working environment. These international instruments cast an obligation on the Indian State to gender sensitise its laws and the Courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the International Conventions and Instruments and as far as possible give effect to the principles contained in those international instruments. The Courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws more so when there is no inconsistency between them and there is a void in domestic law. [See with advantage Prem Sankar v. Delhi Administration, AIR 1980 SC 1535; Mackninnon Mackenzie and Co. v. Audrey D Costa, (1987) 2 SCC 469 JT 1987 (2) SC 34; Sheela Barse v. Secretary, Childrens Aid Society, (1987) 3 SCC 50 at p.54; Vishaka & others v. State of Rajasthan & Ors., JT 1997 (7) SC 392; Peoples Union for Civil Liberties v. Union of India & Anr., JT 1997 (2) SC 311 and D.K. Basu & Anr. v. State of West Bengal & Anr., (1997) 1 SCC 416 at p.438]. In cases involving violation of human rights, the Courts must for ever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field. In the instant case, the High Court appears to have totally ignored the intent and content of the International Conventions and Norms while dealing with the case. The observations made by the High Court to the effect that since the respondent did not actually molest Miss X but only tried to molest her and, therefore, his removal from service was not warranted rebel against realism and lose their sanctity and credibility. In the instant case, the behaviour of respondent did not cease to be outrageous for want of an actual assault or touch by the superior officer. In a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or dictionary meaning of the expression molestation. They must examine the entire material to determine the genuineness of the complaint. The statement of the victim must be appreciated in the background of the entire case. Where the evidence of the victim inspires confidence, as is the position in the instant case, the courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy has no relevance. The High Court overlooked the ground realities and ignored the fact that the conduct of the respondent against his junior female employee, Miss X, was wholly against moral sanctions, decency and was offensive to her modesty. Reduction of punishment in a case like this is bound to have demoralizing effect on the women employees and is a retrograde step. There was no justification for the High Court to interfere with the punishment imposed by the departmental authorities. The act of the respondent was unbecoming of good conduct and behaviour expected from a superior officer and undoubtedly amounted to sexual harassment of Miss X and the punishment imposed by the appellant, was, thus, commensurate with the gravity of his objectionable behaviour and did not warrant any interference by the High Court in exercise of its power of judicial review. At the conclusion of the hearing, learned counsel for the respondent submitted that the respondent was repentant of his actions and that he tenders an unqualified apology and that he was willing to also go and to apologize to Miss X. We are afraid, it is too late in the day to show any sympathy to the respondent in such a case. Any lenient action in such a case is bound to have demoralizing effect on working women. Sympathy in such cases is uncalled for and mercy is misplaced. Thus, for what we have said above the impugned order of the High Court is set aside and the punishment as imposed by the Disciplinary Authority and upheld by the Departmental Appellate Authority of removal of the respondent from service is upheld and restored. The, appeals, thus succeed and are allowed. We, however, make no order as to costs.

Indian Kanoon – http://indiankanoon.org/doc/856194/

Gaurav Jain vs Hindustan Latex Family Planning … on 7 January, 2015

Author: Valmiki J. Mehta

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P(C) No. 139/2015 & CM No.218/2015 (stay) 7th January, 2015

GAURAV JAIN                                                ……Petitioner

Through:     Ms. Ginny J. Rautray, Ms. Sumitha S. and Ms. Harsha, Advocates.

                            VERSUS

HINDUSTAN LATEX FAMILY PLANNING PROMOTION TRUST (HLFPPT) & ORS.                            …… Respondents

Through: Mr. Mohit Abraham, Mr. Arvind Ray and Ms. Shruti Dutt, Advocates for R-

Ms. Suparna Srivastava, CGSC with Mr. Kumar Harsh, Advocates for R-2 and 3.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner, who was an employee of the respondent no.1/employer/Hindustan Latex Family Planning Promotion Trust (HLFPPT), impugning the order of the employer dated 20.11.2014 by which the services of the petitioner were terminated pursuant to the report dated 17.11.2014 of the Internal Complaints Committee (ICC) which indicted the petitioner for sexual harassment of one lady employee Ms. Nidhi Guha/complainant. In the present case, at this stage itself, I must note that the ICC which has given its report dated 17.11.2014 has given a very detailed report running into about 27 pages and which report very thoroughly and exhaustively discusses all the facts, evidences and the issues and thereafter arrives at the necessary conclusions. The report of the ICC is lucid and very well written as if it is a judgment of a court. There were a total of five members of ICC who have given the report dated 17.11.2014, and which concludes with the following recommendations:-

“VI. Recommendation Considering the serious nature of misconduct of the Respondent, ICC recommends the following to the Employer i.e., HLFPPT:

1. The Respondent, Mr. Gaurav Jain be terminated with immediate effect in view of the findings of the ICC and the service rules of HLFPPT.
2. Warning to Deepak Solanki, Joseph Savy and Narsimhan for their gender insensitive conduct towards a female colleague during outstation travel by inviting her to a hotel room at night and drinking & smoking by 4 male members in front of a female colleague till the midnight. ICC also recommends counseling them on gender sensitivity.
3. Undertake regular gender sensitization program including training with regard to Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 in all units of HLFPPT irrespective of governance structure.

               Sd/-                 Sd/-                  Sd/-                   Sd/-                   Sd/-

               Dr.Anasua      Dr. Madhu                     Renu          D Sreenivas                         Shoumen

               Bagchi            Sharma             Sharma        Rao                       Paul,

                                                                  Member,

               Presiding         Member,           Member,           Member,           ICC”

               Officer,                       ICC                  ICC                               ICC                   ICC

2. There were a total of 7 charges against the petitioner on the aspect of harassment of the complainant. Five out of the seven issues have been held in favour of the complainant and against the petitioner, with the second issue and the seventh issue not being decided against the petitioner.
3. The facts of the case are that the complainant Ms. Nidhi Guha made a complaint of her sexual harassment by the petitioner and which complaint pertains to two basic set of facts. The first set of facts pertains to the trip/tour to Hyderabad from 22.7.2014 to 25.7.2014. The second set of facts pertains to harassment of the complainant by the petitioner after coming back from the tour/trip at Hyderabad and which is said to be on account of the complainant not bowing to the illegal actions of the petitioner.
4. The law with respect to hearing of a challenge against orders passed by departmental authorities is that this Court does not sit as an appellate court over the findings and conclusions of departmental authorities; being the ICC in the present case. ICC was constituted by the respondent no.1/employer in terms of the relevant provisions of the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as ‘the Act’) and the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Rules, 2014. ICC issued notice to the petitioner. Petitioner filed his reply to the charges. Evidence was led by both the parties. Department examined 11 witnesses in support of the charges besides filing documentary evidence. Once detailed findings and conclusions are given by the departmental authority/ICC based on the evidence led before the ICC, unless the findings are perverse, this Court cannot interfere with the findings of facts and conclusions given by the ICC. A Court interferes with the orders passed by the departmental authorities only if the same are in violation of the principles of natural justice or are in violation of rules of the organization/ the law or the findings and conclusions of the departmental authorities are perverse and which no reasonable man could have arrived at or if the punishment is shockingly disproportionate. In the present case, the two aspects argued before this Court are the aspects pertaining to the alleged violation of the rules and that the findings arrived at are perverse ie evidence led does not justify the findings and conclusions of the ICC.
5. The following arguments have been urged on behalf of the petitioner:-
6. The ICC of the respondent no.1/employer had no jurisdiction to enquire into the complaint inasmuch as the complaint had to be enquired into only by respondent no.3/National AIDS Control Organization (NACO) with whom the petitioner was posted.
7. ICC has recommended punishment of removal of the petitioner from services which is against the rules of the employer-organization.

• The complaint made by the complainant was motivated and malafide and which becomes clear from the fact that it was made after around two months of the trip at Hyderabad and at the stage when the contract of the complainant with the respondent no.1 was to expire.

6. Let us take each of the arguments as urged on behalf of the petitioner and deal with the same.
7. So far as the first argument that not the respondent no.1/employer through its ICC, but the respondent no.3/NACO had the necessary jurisdiction to enquire into the complaint, the argument is ex facie misconceived because it is not disputed that the employer of the petitioner is indubitably the respondent no.1. Surely the employer is entitled to look into the complaints made against its employees and more so because the Act specifically talks of the employer and the ICC of the employer taking action against the employee with respect to a complaint made by an employee of the employer-organization. Reliance placed by the petitioner upon the provision of Section 2(g) (ii) of the Act that it is the management at the work place which controls the work place only has the power to take action on complaint of sexual harassment, is a misconceived argument because employer is exhaustively defined by Section 2(g) of the Act and the provision of Section 2(g) of the Act contains four sub-clauses and employer can fall into any of the four sub-clauses. More importantly, once the employer is covered under Section 2(g)(i) of the Act, the provision of Section 2(g)(ii) of the Act does not apply as this latter provision itself states that the same will apply only if the employer is not one already covered under Section 2(g)(i) of the Act. The object of Section 2(g)(ii) of the Act is to elucidate and enlarge the scope of employer and not narrow the scope of Section 2(g)(i) of the Act ie in case an employer is not covered under Section 2(g)(i) of the Act, the employer can fall under Section 2(g)(ii) of the Act. This is clarified by Section 2(g)(iii) of the Act which provides that the person who performs the contractual obligations to the employee ie payment of salary etc, would be the employer. I therefore do not find anything in the provision of sub-clause 2(g) (ii) of the Act relied upon by the petitioner which states that an actual employer cannot take action against the employee once there are allegations of sexual harassment alleged against the employee. The first argument urged on behalf of the petitioner is therefore rejected.
8. The second argument urged on behalf of the petitioner that ICC had no power to make recommendation for termination of services of the petitioner, is once again a misconceived argument and in fact the provision of Section 13(3)(i) of the Act which is relied upon by the petitioner goes against the petitioner because this provision specifically states that ICC shall recommend to the employer the action which is to be taken against the employee, of course which action has to be in accordance with service rules. Before me no service rules are filed or pointed out or referred to which say that in spite of a complaint having been proved of sexual harassment of an employee, the service rules provide that an employee who is guilty of sexual harassment cannot be terminated from services. The second argument urged on behalf of the petitioner is also equally misconceived and is therefore rejected.

• The third argument raised of the first charge/issue being held against the petitioner without any evidence is now to be examined. Let me therefore at this stage reproduce the first charge against the petitioner and the findings of the ICC in this regard. The findings are detailed and lengthy, but I have no option but to reproduce the same in its entirety because such portion of the ICC report has to be examined to decide for correct appreciation of evidence by the ICC, and in case out of the two views possible one view has been taken by the ICC, then this Court cannot interfere with the findings of the ICC because it cannot be held that the findings and conclusions are perverse. This relevant portion of the report reads as under:-

“(a) The first issue which arises for consideration by the ICC, is in relation to the incident which happened on 23^rd July 2014. It is alleged that the Respondent pressurized the complainant to come over to the Respondent’s room at night using his power of seniority. The Respondent is alleged to have used sexually tainted threats to the complainant, such as “do you know what is ‘Shoshan’ (Exploitation) This is ‘Shoshan’, “why did you ask for food from my BLOODY juniors?”It is alleged that the Respondent abused the complainant using his hierarchy as a pretext while she was alone and confined to his room at night. It is alleged that the Respondent was in a drunk status and threw cigarette smoke in her face, and forced option of spending the night in his room, if she is not able to finish the ½ kg of Biriyani, Forceful unwelcome physical conduct of sexual nature by coning her into hand over her room key, creating pressure and forcing her to eat Biriyani against her will to the extent that she was physically harmed and fell ill, creating a serious sexual and physical threat to her by refusing to hand over key and thereby preventing her to seek the security and privacy of her room at late night, Knocking the door of the complainant’s room and coning her to open the room door at late night on the pretext of enquiring her well-being.

Findings of the ICC on the above Issue The Issue No.1 is proved against the Respondent and in favour of the Complainant. ICC finds it a matter of fact that the trip to Hyderabad was planned and designed by the Respondent with a definite motive, with support of his reporting team members. Although the 23^rd July night incident happened between only the Respondent and the Complainant, there is sufficient circumstantial evidence to believe that the incident had taken place, with the Respondent himself confirming the timings and the fact of sharing time within closed doors in his room for considerable time, the fact that the complainant left the room in obvious physical discomfort, and that he physically had gone and knocked at her room at late night. There is also confirmation by her colleagues that she had reached out to them immediately after the visit with the exact narration of the incident as mentioned in the complaint.

ICC also finds that the Respondent used his hierarchy as a senior male Team Leader to pressurize her into such a traumatic situation. ICC believes that the complainant did not have much option to deny the directives including the travel plan and spending time with the Respondent as per his wish. The ICC also believes, that the complainant had no reason to frame him due to vested interest in the organization, and has not put the complaint to extend her service, since she had not even worked long enough in TSG to develop rapport with any of the HLFPPT senior management and neither had any understanding of the TSG governance Model. In addition, the ICC also recognizes that the contracting of TSG as an institute is only up to March 2015, and it is highly unlikely for a dignified woman to stake her stigma to be associated with the sexual harassment for a job extension of 5 more months.

The statement of witness-Deepak Solanki and Rahul Ram proves that the outstation trip to Hyderabad for the complainant was not required, and her trip to some field of Delhi NCR would have sufficed. It is also clear that it was the Respondent who finally decided that the complainant should be accompanying the Respondent for Hyderabad visit and also, that Deepak Solanki (complainant’s direct supervisor) had no say in deciding where the complainant would be taken for field visit. As per statement of Mr. Deepak Solanki, and Ms. Latha Kumari, it is evident that travel plan of Hyderabad including travel arrangement were made by the Respondent and that the Respondent had done the web check in for the complainant and himself for the flight as well. In fact, the Respondent also confirmed in his statement 9^th October 2014 that he only had done booking of Hotel Sarovar Aditya Hometel for himself and complainant for 22^nd July to 25^th July, and for Deepak for 24^th July 2014. He has also confirmed that he only had done the web check in for the complainant and himself for ongoing flight to Hyderabad (From Delhi). The statement of the Respondent also confirms that the room booked for the complainant was over and above her official entitlement for the hotel tariff. It has also come to light that the flight approval for the complainant was approved by Deepak Solanki but final decision and approval was given by the Respondent, since Deepak Solanki was not authorized to do so as per Employer’s travel rules. The Respondent’s contention that the visit to Hyderabad was a planned decision of the Respondent, the Complainant and Mr. Solanki is not of much force. It is pertinent to note that it was the Respondent who had booked the accommodation in the hotel. The Respondent could not give any satisfactory explanation as to why he had booked high tariff room for the complainant, which was also beyond her entitlement. There could be no concern for safety of the Complainant, as contented by the Respondent, because the Respondent and Mr. Solanki were staying in the same hotel. Further, the Respondent claims that the Complainant used the words “As discussed” in her email to Deepak seeking travel approval implies that the decision was taken with her consent. ICC is of the view that the complainant had not complained that she was pressurized to go, and further the reference of a discussion does not imply that the decision was a participatory or taken with the consent of the complainant, it may also mean the directive that was discussed. The Respondent has also raised the defense that he had booked Deepak Solanki in the same hotel, which proves that he did not have any malicious intention. The said contention is countered by the fact that travel was planned in such a way that Deepak was to check in the hotel only on 24^th  July, while the Respondent and complainant was booked from 22^nd July onwards.

Further, Respondent’s contention is that if complainant was apprehensive of accompanying with Respondent then she had almost a week’s time to refuse to travel to Hyderabad but she did not do so at all which means that she travel willingly without any pressure. ICC is of the view that the Complainant being a junior employee had no choice but to go to Hyderabad. She went ahead with the Hyderabad visit as she could not have a said a categorical ‘NO’ to the Respondent (a senior employee) as it would have severely reflected on her performance on the job. Further this was a case of an official trip, directed by two seniors of the Complainant, there was no scope for a junior employee to say no on the pretext of insecurity. ICC is of the view that this is a case where the male hierarchy has used his power to create apprehension and at the same time used that power to abide by his plan. Further, it has also come into evidence no staff as TSG had the courage to raise voice against the Respondent.

ICC has also perused the Statement of Hotel Aditya Hometel dated 20th October, which has confirmed that they (The Hotel) got the reservation request from Respondent for 3 Superior rooms on 17^th July 2014 at 14.50 hrs (Respondent & Complainant) for 3 nights (from 22th to 25^th 2014). Mr. Deepak Solanki one night 24th and 25th and the confirmation number for the same was 49918. The Respondent had requested for reservation of Superior rooms, which was superior room no. 115 in 1st Floor and the complaint was allotted Superior Room no. 202 in second floor, by the Hotel Aditya Hometel, during their check in on 22^nd July, but within 14 minutes the Respondent had changed his booked Superior room 115, to Suite room 204 which was in the same floor and next to the complainant’s room(202). The Respondent’s contention that the room allotted to him was very uncomfortable & cramped to him therefore as he saw that room, he immediately requested hotel for a change which they did and the next room allotted to him by hotel was a suite room within his entitlement as well as he opted for that. The said contention is liable to be rejected as the Respondent has himself booked superior rooms and further he has stated that he used to stay in the same hotel during Hyderabad visit. This implies that the Respondent was very familiar with the rooms and the facilities in the Hotel and the intent behind shifting to a room next to the Complainant’s room was not bona fide and could not be explained satisfactorily by the Respondent. Further it is difficult to believe that the hotel staff allotted a higher category room next to the allotted superior room of the complainant by mere asking by the Respondent. This gives enough circumstantial evidence to the ICC to believe that the Respondent had intentionally changed the room with definite purpose of being close to the Complainant during the stay. Respondent’s contention that he was not aware that what room has been allotted to Complainant is also without any merit as both the Complainant and the Respondent had checked in the hotel at the same time. And this implies that the Respondent was aware what room has been allotted to the complainant. From the Statement of Latha Kumari, and Deepak Solanki dated 8^th October, 2014, Statement of Joseph Savy dated 9^th October, Statement of Deepak Solanki dated 22^ndSeptember, it is evident that Joseph Savy (RMM, TSG) had checked in the same Hotel Aditya Hometel on 22^nd October 2014 at 7 am, and then he was directed by Deepak to move out of the hotel by 7 pm to check in another hotel which next to Hotel Aditya Hometel. The reason for moving out of the hotel was that the Respondent would not like Joseph to be staying in the same hotel where Respondent & Complainant were booked. Although the Respondent has taken a stand that he did not instruct Deepak to ask Joseph to check out of the Hotel, the said stand is falsified by the fact that Joseph did check out of the hotel and further, Joseph has also confirmed receiving a call from Deepak. Deepak’s statement in addition states that he was instructed by the Respondent to ensure that Joseph Savy moves out of the hotel before the Respondent check in. Further, Latha has also confirmed that Joseph informed her that he would not be of much help to the Complainant as he had checked out of the hotel due to the instructions of the Respondent. Email from Hotel Aditya Hometel dated 20^th October 2014 also confirmed that 3 guests who checked in to their hotel were Mr. Gaurav, Complainant and Mr. Joseph on 22^nd July 2014, and that Mr. Joseph checked in around 9.05 hrs and checked out 18.26 hrs on same day (22^nd July 2014).

As per statement of Respondent dated 9th October, and 7^th November, it is evident that the Respondent and the complainant were together from 9.30 pm onwards in closed door in the Respondent’s room for Dinner of Biryani, and had dinner together. The Respondent admitted that the complainant left the room complaining of physical illness, and also confirmed that he had knocked at her room post dinner, and that she had opened the door of her room and had asked her of her well-being. The Respondent has claimd that he knocked at the door of the Complainant’s room to inquire about her health. ICC is of the view that this explanation of the Respondent does not appear to be logical and reasonable as the Respondent instead of knocking at the door late in the night, could have easily communicated with the Complainant through the intercom facility or mobile phone. There was no reason for the Respondent to disturb the Complainant by knocking on the door already knowing that she was not well also as per the Statement of Respondent.

From the statement of Nitin, Bhupendra, dated 8^th October 2014, it is evident that the complainant, after her return from Hyderabad had immediately confided the incident of 23^rd July 2014 night, including the fact that the Respondent had detained her in his hotel room forced her to take Biriyani or otherwise spend the night in his room that her hotel room key was taken away by Respondent. From the statement of Sudarshan Negi and Latha Kumari, it is evident that there was change in the behaviour of the complainant after return from Hyderabad and that she was agitated and disturbed. There is nothing on record to disprove the statements made by the witnesses in relation to the present issue. The entire circumstances go against the Respondent and hence, the present issue stands proved against the Respondent.” (underlining added)

7. A reading of the aforesaid portion of the report of the ICC shows that it is an admitted fact that the complainant was in the hotel room of the petitioner. The fact with respect to the complainant having to eat biryani is also borne out from the statements of the complainant and the petitioner. The fact that the petitioner thereafter went to the room of the complainant, of course allegedly on the pretext of health, is also an admitted fact. The aspect is that whose version should be believed ie viz of the complainant or of the petitioner. I have already reproduced detailed findings with respect to the issue no.1 above and some of the relevant aspects given by the ICC to hold the first issue/charge against the petitioner are rightly as under:-
8. Complainant immediately after the trip to Hyderabad narrated the incident to her colleagues.
9. The Hyderabad trip of the complainant was in fact not required and it was sufficient if the complainant would have got experience within the Delhi NCR itself and which is also confirmed by the statements of the witnesses Sh. Deepak Solanki and Sh. Rahul Ram.

• The petitioner himself had done the booking of the complainant at the concerned Hotel Sarovar Aditya Hometel and that too beyond the financial entitlement of the complainant.

2014. The trip at Hyderabad was planned in such a way that the petitioner and the complainant would be alone in the hotel for three out of the four days at the Hyderabad trip because booking at the hotel for the rooms of the complainant and the petitioner was from 22^nd July, 2014 to 25^th July, 2014 whereas the booking for the other employee was only for 24^th July, 2014.
2015. Petitioner was given a different room on the different floor being the first floor being the room no.115 but within about 14 minutes of check-in in the hotel, the petitioner changed his room from 115 to suite no. 204 which was adjacent to the room no. 202 on the second floor which was booked for the complainant.
2016. Another employee Mr. Joseph Savy (RMM, TSG) had checked into the same Hotel Aditya Hometel on 22.10.2014, and then he was directed by Sh. Deepak Solanki on the instructions of the petitioner to move out of hotel by 7 pm and to check-in to another hotel which is next to Hotel Aditya Hometel.
2017. The aforesaid aspects show that the findings and conclusions with respect to first issue/charge against the petitioner are not without any evidence as argued on behalf of the petitioner. In fact, at this stage itself I must note that when the report is read as a whole, it becomes clear that trips to Hyderabad were planned by the petitioner in which female staff used to be taken alongwith him and many of such female staff had appeared harried and worried on returning back from the Hyderabad trips. It has also come on record that only and only the petitioner had complete liberty and discretion to decide as to who will go to the outstation trip at Hyderabad, with whom, how and when. The detailed report shows that it was a game plan and the usual modus operandi of the petitioner. Once two views of the situation are possible, and the conclusions of the ICC cannot be said to be perverse, this court cannot interfere with the findings and conclusions of the ICC. Also, it is again important to note that even for the sake of argument if we take away the aspect with respect to first issue/charge, there are four other charges which are duly proved against the petitioner by means of evidence led before the ICC, and which proved charges were sufficient in themselves to give findings of sexual harassment against the petitioner and the consequent recommendation of termination of his services. This argument urged on behalf of the petitioner is also therefore rejected.
2018. The last argument which is urged on behalf of the petitioner is that of the complaint lacking merits, having been made after two months and in around the period when the contract of the complainant was to expire with the respondent no.1/employer. This aspect at the first blush required deeper consideration, and therefore, I have gone through the impugned ICC report dated 17.11.2014 in detail. I have clearly reproduced above the reasons given by ICC for rejecting the arguments with respect to the complaint not having merits because it was made after about two months and in around the period when the contract of the complainant was to expire and which portion is the fourth sub-para of the findings of ICC qua issue no.1 and which is sufficient to reject this argument. It also needs to be noted that ICC has held that petitioner being the only male member in the senior position, and the female employees being in the junior position, it was difficult for the female employees to stand up to the petitioner. Also, statements were recorded of the witnesses namely Ms. Latha Kumari, Mr. Nitin Kumar Sharma, Mr. Purujit Praharaj, Mr. Sudarshan Negi and Mr. Bhupendra Pratap Singh which showed that the trend with respect to other women staff was similar to the game plan adopted with respect to the complainant of taking them to outstation trips and the female staff looking distressed and tensed after coming back from the outstation visits. Also, the ICC notes that merely because a complaint is delayed does not mean that on merits the complaint should not be examined because it is the first time when a victim had found courage to raise her voice against the petitioner with respect to sexual harassment and complainant required lot of courage to do so because not only she was young and unmarried but that she had lost her father and was staying with her working mother and a younger sister ie without support of a male member in her family. ICC also notes that complainant was a female member and it is only after much courage that she was able to raise her voice against the petitioner. ICC rightly in my opinion also notes that there is no reason why the complainant would want to adversely affect her reputation at her young age by making such a complaint. Various other aspects are also noted in the report and since as already stated above, ICC has done a very thorough job, let me reproduce the language of the other portion of the report in this regard instead of adding my own words and which relevant portion of the report reads as under:-

Findings of the ICC on the above issue ICC noted the material evidences given in the regard, and after interacting with the witness at length has sufficient reason to conclude that the respondent has created hostile and oppressive work environment for her and at least of another woman employee who has given her statements.

From the Statement of Latha Kumari, Nitin Sharma, Purujit, Sudarshan, Bhupendra, it is apparent that this was the trend with all women staff who had joined and left TSG, that they would be taken for an outstation trip the Respondent, where the booking of hotel and web check in for flights will be all done by the Respondent or on his instructions, and that after the visit there would be visible change in relation between Respondent and the female teams member and has also seen girls looking distressed and tensed after coming back from outstation visits. It has also come to light that the Complainant was warned repeatedly by other female colleagues before they left the organization, that overnight travel and stay with the Respondent is not at all safe and will be very dangerous for her, and that complainant was very scared to undertake overnight stays with the Respondent. It has also come in evidence that Latha Kumari had accompanied Complainant in a review meeting held at Stellar Hotal which included overnight stay, since Complainant was very scared to go alone as there was no other female staff in the review meeting.

Respondent also misbehaved with women staff in the past as narrated by them to Latha Kumari, She has further stated that Respondent has forced all women staff to state to the HR that they had no problem in TSG (reference to Vibhanini’s exit reason), otherwise he would have made life miserable for her. It is evident that the Respondent’s looks and behaviour had often made women’s staff feel uncomfortable and that he had been continuously misbehaving with all female staff and passing personal humiliating comments within the office in front of other male colleagues and external stakeholders. From the statement of Latha Kumari, Deepak Sati and Sudarshan Negi, it is obvious that TSG Staff was scared of raising voice against the Respondent since if the Respondent comes to know would definitely make life miserable for them. From the statement of Sudarshan Negi and Nitin Sharma’s, it is apparent that women staff working in TSG that were not of senior level, and not matured and did not have any support system, they are not able to handle harassment by the Respondent Nitin Kumar Sharma has even gone to the extent by saying that all female members in TSG work for very short span because this place is “HELL FOR WOMEN”. In fact, it has also come into evidence that that perceived threat to female staff was so high that Latha had even called Joseph Savy, the Regional Manager for South before the Hyderabad trip mentioned above to request him (Joseph) to take care of the Complainant, on a personal note. The Respondents objection that why Latha had to call only Joseph to take care of the Complainant cannot be the sole basis to discard her statement.

Deepak Sati has also state before the ICC that the Respondent use to pass objectionable remarks and always narrates instances related to sex & rape case among other headlines of newspapers/current affairs in presence of all team members including female staff during the lunch time. He further added that despite the fact team members detest these lunch time stories however, they do not have the courage to protest him. ICC has also recorded statements of some of the staff of TSG. From their statements, it is clear that TSG staff observed the women to be distressed, depressed, agitated after coming back from outstation visits with the Respondent, and some of them have openly expressed what they have experienced with some of their trusted and supportive colleagues. More than one woman colleague has reached out to the complainant and warned her of Respondent’s behaviour while outstation trip, and asked the complainant to be very careful to maintain her dignity. Some of TSG Staff have even gone on the extent of saying, “There is no humanity left”, “it is completely male dominated”, “Respondent has “ensured that there is no ambience that any staff can provide professional /emotional support/protest against exploitation to any female staff, since the respondent will spil the peace and reputation of that staff”, “the indecency, torture, and domination over even male and that too very senior staff by the respondent is so severe, that god only knows the plight of these very junior, low in hierarchy naive, young vulnerable women staff”.

It has also come to light that the Respondent had been habitually cracking obscene Sexual jokes, shares stories of rapes, -“ladki uthake program kar lia”(referring to incidents of rape), how women enjoy rape and then as and when required complain on rape, comments on body and body parts of women during common lunch hours are detestable/protest (As per statements of Sudarshan Negi, Latha Kumari, Nitin Kumar Sharma, Deepak Sati, Purujit Praharaj). More than one witnesses above have narrated before the ICC that Respondent has number of times insisted the need for recruiting female employees in Delhi TSG office, and not taking the opinion of the reporting supervisor in account. More than one witnesses also narrated before the ICC that this Hyderabad incident, is not a single incident, but this is a known trend in TSG, whereby young, new, junior, inexperienced, vulnerable woman employee had to undertake outstations trips with the Respondent and in all these occasions, Respondent is the only person to decide who will go where, with whom, how and when. More than one witnesses also mentioned that after these (outstation) trips, either the Respondent Jain will start extending extra favour and suggest promotion for the woman employee, or start harassing and crafting a “GAME-PLAN” (as quoted by more than one team member), pressurizing few of his close associates, to put pressure and harass the woman employee to leave TSG. The Respondent has argued that, if some female colleague had informed them about their apprehension about travelling with Respondent then Latha should have either shared with Senior Management of HLFPPT or HLL Lifecare without informing Respondent or she could have suggested Complainant to inform or write mail to share her apprehension with HR for easy redressal. He questioned as to why Latha had kept quiet for about 6 yrs and now suddenly she realized everything. The Respondent has also stated that if Mr. Sudarshan Negi being a senior manager in TSG has noticed historical trends in behaviour of female staff then why did he not share it with HLFPPT senior member of HR team who are quite easy statement of other witnesses. However, ICC cannot lose sight of the fact that the TSG staff has come out in support of the Complainant because it is for the first time that a victim has raised voice against the Respondent. A victim of sexual harassment needs lot of courage and support to raise voice against the culprit, who has assaulted a women’s dignity, especially in the male dominated Indian society. The ICC noted that the complainant is young and unmarried. The father committee also understands her vulnerability in the context that very recently she has lost her father and staying with her working mother and a younger sister without much support of the male member in her family. The committee found her emotionally drained and noted her determination to bring justice to her dignity. The committee with 3 women members could also bring out her fear, doubts and lever of stigma that she has inflicted on herself following the incidents on 23rd and 24th July, and bearing its consequences till the date of complaint, at her workplace. The facts that several staff have supported the case of the Petitioner, despite being acquainted with the misdeeds of the Respondent and not having raised objections earlier, further fortifies the fact that such staff got courage to speak against the Respondent due to the courage and boldness shown by the complainant. Merely because, no grievance has been raised against the Respondent in the past cannot be a ground to absolve the Respondent. Hence, the ICC does not find much force in the Respondent’s objections to reject the evidence tendered by the TSG staff regarding the past misbehaviour by the Respondent.

The Respondent has also contended that his junior from TSG could have reached the Board of trustees and the CEO, if the Respondent had done anything wrong. However, no one had approached the Board of Trustees or the CEO for the redressal of grievances. The ICC took into the TSG Governance model to examine his contention of the Respondent. ICC found that the TSG governance model does not allow any direct communication with HLFPPT Management and that all communications are as per the model and are routed through the Team Leader. Since the Respondent was himself the Team Leader, none of the juniors could have mustered the courage to communicate with the CEO or the Board of Trustees in relation to any issue, in which the Respondent was himself interested. Further, it is highly improbable that junior team member will have an easy access to the Board of Trustees and senior management or have a level of personalized communication scope for discussing behavioural issues of their team leader with them. Respondent has also raised objection that some witnesses such as Latha and Bhupendra are very close to CEO or have worked in the organisation for long and hence they have good connection with the senior management of HLFPPT. The Respondent’s contention that these witnesses have testified against him due to vested interest in the organisation. The ICC is of the view that merely because people are close to the CEO or other senior personnel or have worked in the organisation for long time does not make the evidence of such witness doubtful. The Respondent has also not produced any evidence to show that the witnesses have falsely testified against him. On the other hand, almost all the witnesses have stated that the Respondent used to have objectionable behaviour with female staff.

In view of the above unchallenged evidence and the entire facts and circumstances of the case, the allegations against the Respondent stands proved.” (underlining added)

10. It is therefore clear that there is no violation of principles of natural justice or violation of rules of the employer- organization or violation of any law or that there is any perversity in the findings of the report of the ICC in the present case. The writ petition is therefore without any merit whatsoever.
11. Dismissed

JANUARY 07, 2015                               VALMIKI J. MEHTA, J.

Vidya Akhave Vs. Union of India

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. 796 OF 2015

Vidya Akhave, aged 39
R/at: 9/301, Perth CHS Ltd., Millennium Park, Hari Om Nagar, Mulund (E), Mumbai­400081. … Petitioner

Versus

1. Union of India
Department of Women & Children
2. Suneet Shukla, Designation : General Manager,Address :IFCI Ltd.,, 307, 3rd Floor,
Amar Neptune,Near Big Bazaar,Baner, ) Pune 411 045.

3. IFCI LTD., Address: IFCI Tower,61, Nehru Place, New Delhi 110 019.

4. Rashmi Kapoor, Designation: Presiding Officer, Internal Sexual Harassment ­ Complaints Committee, Address: IFCI LTD, IFCI Tower, 61, ) Nehru Place, New Delhi 110 019.
5. Disciplinary Authority, Address: IFCI LTD, IFCI Tower, 61, ) Nehru Place, New Delhi 110 019. … Respondents.
6. Amar Dass Kharbanda Designation: Dy. General Manager, Address : IFCI LTD, IFCI Tower, 61, Nehru Place, New Delhi 110019.

Ms. Veena Gowda, Advocate a/w. Surabhi Singh, Advocate for the Petitioner.


Mr. Dhanesh R. Shah, Advocate for the Respondent No.1 Union of India.


Mr. Ashish Kamat, Advocate a/w. Mr. Nikhil Rajani i/by M/s. V. Deshpande & Co. for Respondent No.2.


Mr. Sanjay Jain a/w. Mr. Hemant Prabhukar i/by Jurisperitus Mumbai for Respondent Nos. 3, 5 & 6.

ORAL JUDGMENT: CORAM : V. M. KANADE AND MRS.SWAPNA JOSHI,JJ.DATE : 04 OCTOBER, 2016

1. Rule is made returnable forthwith by consent of the parties

2. Heard the learned counsel appearing on behalf of the Petitioner and the learned counsels appearing on behalf of the respective Respondents.
3. By this Petition, filed under Article 226 of the Constitution of India, the Petitioner is seeking following reliefs:
4. That this Hon’ble Court be pleased to grant a writ of mandamus or a writ, order or direction in the nature of mandamus directing the Respondent No.1 to take steps to ensure that employers comply with the law on sexual harassment, in letter and spirit;
5. That this Hon’ble Court be pleased to grant a writ of certiorari or a writ, order or direction in the nature of certiorari quashing and setting aside the report dated 17.02.2014 of the committee constituted by the Respondent No.3 Company and consequently the order of the Disciplinary Authority dated 01.05.2014 awarding punishment to the Respondent No. 2;
6. That this Hon’ble Court be pleased to grant a writ of certiorari or a writ, order or direction in the nature of certiorari quashing and setting aside the decision of the Board of Directors dated 03.12.2014 refusing to re­look into the punishment given to the Respondent No.2;
7. That this Hon’ble Court be pleased to consider the evidence on record and statement of witnesses and hold that the conduct of the Respondent No. 2 amount to sexual harassment at workplace as defined by the Hon’ble Supreme Court of India in Vishaka vs. State of Rajasthan, AIR 1996 SC 1, as well as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013;
8. That this Hon’ble Court be pleased to impose such penalty on the Respondent No. 2 as is commensurate with the serious allegations made against him;
9. That this Hon’ble Court be pleased to direct Respondent Nos. 2 and 3 to pay the Petitioner compensation as deemed fit by this Hon’ble Court;
10. That this Hon’ble Court be pleased to grant a writ of mandamus or a writ, order or direction in the nature of mandamus directing the Respondent No.3 not to transfer or assign Respondent No.2 to the same office as the Petitioner;
11. The facts which are germane for the purpose of deciding this writ petition can be briefly stated as under:
12. On 21st July, 2008 the Petitioner joined IFCI (Industrial Finance Corporation of India) which is now known as IFCI Ltd.. Respondent No.2 was also working in the said Company as General Manager and was immediate superior officer of the Petitioner. A complaint was filed by the Petitioner with the then C.E.O. and M.D. of Respondent No.3 on 22nd February, 2013, alleging that she was subjected to sexual harassment by Respondent No.2 ­ Mr. Suneet Shukla. It was urged that the CEO and MD should constitute a committee, as laid down by the Apex Court in the case of Vishakha vs. State of Rajasthan (AIR 1997 SC­301). A second complaint was again filed on 6th June, 2013 by her since no action was taken on her first complaint dated 22ndFebruary, 2013. She also asked the CEO and MD to constitute a Disciplinary Committee and Internal Complaints Committee to inquire into the allegations which are made by her in her complaints. In view of the said two letters/complaints, which were sent by the Petitioner, a Committee was constituted and a show cause notice was given to the Respondent No.2, asking him to give his explanation. Presiding Officer was also appointed and then the Petitioner presented detailed complaint before the Committee in which she had cited 25 instances of allegations of sexual harassment made to her by the Respondent No. 2. It will be relevant here to mention that initially i.e. from 21st July, 2008 the Petitioner was working at the Mumbai Regional Office of the IFCI Ltd. and that she started working with the Respondent No.2 from April, 2011. According to her, the first incident took place in July, 2011 and last incident took place in February / March, 2012. The Petitioner then was transferred to the another Company known as “IFCI Sycamore Capital Advisors Pvt. Ltd.”, an associate company of Respondent No.3. The Petitioner was working there from March, 2011 for a period of about 11 months and again was posted back to IFCI, MURO, Mumbai on 18^th February, 2013. The first thirteen incidents which she has mentioned in the complaint pertain to the period from April, 2011 to February/ March, 2012. The other allegations pertain to the subsequent period when she joined the Mumbai Regional Office of IFCI.
13. The Committee conducted an enquiry and evidence was led by both the parties and statements of witnesses were also recorded. The Internal Complaints Committee submitted a report dated 17^th February, 2014 and after taking into consideration the allegations which were made by the Petitioner against the Respondent No.2 and the evidence which was produced, the committee came to the conclusion that so far as the incidents which had taken place prior to February/ March, 2012 were concerned, no complaint was filed within three months after the last incident or three months thereafter, as prescribed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 (hereinafter referred as “the said Act”, for the sake of brevity) and therefore, it has not considered the said allegations though they had made certain observations and given their comments on each of the incidents. The Committee has also observed in its report as under :

“Further, the sexual harassment complaints have to be submitted immediately and in time for effective disposal. Since, there is time gap in filing complaint qua allegation in para no. 1 to 13, the same seems to be beyond time limit in terms of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the committee was of the view that the observations of the committee on the issues/ allegations in para no. 1 to 13 may be considered by HR Department as per its policy for taking appropriate steps/ action even apart / separate from the provisions under Sexual Harassment Act.”

Thus the committee was of the view that since the allegations in para nos. 1 to 13 were filed beyond time, it was of the view that the observations of the Committee on the issues in para nos. 1 to 13 will be considered by the H.R. Department, as per its policy for taking appropriate steps/action even apart separate from the provisions under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013. In respect of the complaint/ allegations in para­14 onwards, the Committee was of the view that in view of the observations made by the Committee appropriate action in terms of its Service Rules (Rule 9 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, should be taken.

7. Accordingly, the Disciplinary Authority has passed a detailed order dated 1^st of May, 2014 in which finding given by the Committee on each allegations made by the complainant were firstly reproduced and thereafter, the final finding of the Committee was noted. The Disciplinary Authority examined the enquiry report and has observed that the enquiry was conducted as per the provisions of the said Act and that the Respondent No.2 was given full opportunity to defend himself. The Disciplinary Authority thereafter, has observed in para nos. 4 , 5 and 6 as under :

 “4. I now propose to deal with punishment to be imposed on the accused based on the findings of the Committee’s report. I have given careful consideration to the complaint, the submissions of the parties, the statement of witnesses and also the final report of the Committee. I am convinced that instances of this behavior in an organization like IFCI needs to be dealt with firmly and consistent with the behavior i.e. expected of the officials in this organizations, a punishment commensurate with the acts proven needs to be imposed.

5. Considering that the acts accused are of unbecoming of a person holding an important office in IFCI, it is appropriate to impose the penalty as prescribed under Regulation No. 61(f) of the IFCI Staff Regulations, 1974. The penalty which I am imposing is a major penalty and accordingly, I order as under :

“In exercise of the powers vested in me a major penalty by way of reduction to a lower stage by two stages with cumulative effect be imposed.”

6. The order be communicated to the accused with a copy to the complaint and the effect of this order be given from the date of communication of this order.”

The Disciplinary Authority came to the conclusion that some of the allegations against the Respondent No.2 were established and further observed that the acts of the accused were of unbecoming of a person of holding the office and it was appropriate to impose penalty as prescribed under the Regulation No. 61(f) of the IFCI Staff Regulations, 1974 and a major penalty was imposed of reduction to a lower stage by two stages with cumulative effect. As a result of this punishment, the Respondent No.2 was transferred to Chennai, his salary was reduced to Rs. 2500/­ per month, according to the Petitioner, and according to the Respondent No.2 his salary was reduced to Rs. 7104/­ per month.

8. The Petitioner has approached this court under Article 226 of the Constitution of India, challenging the validity of punishment that is imposed by the Disciplinary Authority on the Respondent No.2. The sum and substance of the submissions of the learned counsel appearing on behalf of the Petitioner is that the higher punishment ought to have been imposed by the Disciplinary Authority on the Respondent No.2. Secondly, it was submitted that the observations of the Committee in respect of the allegations are not correct. It is submitted that the totality of the evidence and the statements of the witnesses have not been considered in its proper perspective and, therefore, the observations of the Internal Complaints Committee of not entertaining the allegations in para nos. 1 to 13 were illegal and incorrect. It was further submitted on behalf of the Petitioner that the Disciplinary Authority has merely felt that the acts of the accused are of unbecoming of a person, holding an important office and no finding has been given that the Respondent No.2 was guilty of committing sexual harassment, as defined under the provisions of the said Act and as the law laid down in Vishakha’s case, cited supra. The learned counsel appearing on behalf of the Petitioner has taken us through the entire report of the Internal Complaints Committee and also through the order passed by the Disciplinary Authority. It is submitted that this is a fit case where punishment should be enhanced and that there should have been reduction in the post held by the Respondent No.2. It is submitted that the penalty of reduction to a lower stage by two stages with cumulative effect was inadequate, taking into consideration the conduct of the Respondent No.2.
9. Learned counsel appearing for the Petitioner has also invited our attention to the judgments of the Apex Court. She submitted a compilation of the judgments in the cases of : (1) Vishakha & Ors. vs. State of Rajasthan & Ors. (JT. 1997 (7) SC 384, (2) US Verma vs. National Commission for Women & Ors. 163 (2009) DLT 557, (3) Medhal Kotwal Lele & Ors. vs. UOI & Ors., AIR 2013 SC 93 (4) Seema Lepcha vs.State of Sikkim & Ors. (2013) 11 SCC641, (5) Gaurav Jain vs. Hindustan Laetx & Ors. 2015 IXAD (Delhi) 569 and (6) L.S. Sibu vs. Air India Limited and Ors.(2016(150)FLR 488).

• Learned counsel for the Petitioner invited our attention to para 63 of the Judgment of the Delhi High Court delivered in W.P. (C) Nos. 1730, 1731 and 1733 of 2001 in the case of S. Verma, Principal and Delhi Public School Society vs. National Commission for Women and Ors., ­ 163 (2009) DLT 557 decided on 12^th October, 2009, wherein the Delhi High Court has relied on the Judgment of the US Supreme Court in the case of Joseph Oncale vs. Sundowner Offshore Services, Inc. 523 U.S.75 (1998) Supreme Court in which the US Supreme Court had an occasion to consider the various facets of the complaints of sexual harassment of a woman.
• Learned counsel for the Petitioner submitted that the observations made by the Internal Complaints Committee that the complaint was filed by her beyond limitation were not correct. It is submitted on behalf of the Petitioner that since the Petitioner was a subordinate officer, working under the Respondent No.2, she had a reasonable apprehension that if a complaint is filed by her it would have adverse consequences on her career. She submitted that therefore, the findings of the Committee are illegal. It was further submitted on behalf of the Petitioner that the transcript of the record was not given to her and opportunity to cross­examine also was not given to the Petitioner and if this had been done, she would have been in a position to bring further evidence on record.
• On the other hand, Mr. Ashish Kamat, learned counsel appearing on behalf of the Respondent No.2, firstly submitted that the order of penalty which was imposed by the Disciplinary Authority on the Respondent No.2 was harsh enough by which the Respondent No.2 had suffered physically, financially and he was also transferred to Chennai where he could not stay with his family, which was stationed in Mumbai. Consequently, it was submitted that the Committee has considered the material on record and has given its findings and it was not open to challenge these findings by re­ appreciating the evidence on record. Thirdly, it was submitted on behalf of the Respondent No.2 that the penalty which was imposed by the Disciplinary Authority on the Respondent No. 2 was a major penalty and, therefore, it could not be said that the Disciplinary Authority has exonerated the Respondent No.2 by imposing a minor punishment. It was also submitted that it is well settled that the proportionality of the sentence normally should not be interfered with by the High Courts while exercising its writ jurisdiction under Article 226 of the Constitution of India. Mr. Kamat, learned counsel for the Respondent No.2, relied upon the judgment of the Supreme Court in the case of Om Kumar and Ors. Union of India, [(2001) 2 Supreme Court Cases 386) and in particular the paragraphs 24 to 28 and 71 of the said Judgment.
• After having heard both the learned counsel at length, firstly, we are of the view that it is necessary to examine scope of jurisdiction of this court in examining the proportionality of sentence imposed by the Disciplinary Authority. It is well settled that unless the court comes to the conclusion that the penalty imposed by the Disciplinary Authority is shockingly disproportionate to the misconduct committed by the delinquent employee, this court has to be slow in interfering with the order of punishment which is imposed on the delinquent employee. The Apex Court in the case of Om Kumar, cited supra, has very succinctly crystallized the individual issues regarding scope of the High Courts under Article 226 of the Constitution of India or of the Administrative Tribunals. It would be fruitful to reproduce the said observations made by the Apex Court since they are very clear on quantum of punishment as also the language used by the Supreme Court in its said order/judgment. The Apex Court in the said order has succinctly explained the position and, therefore, it is necessary to reproduce the said paragraphs nos. 24 to 28 as under :

24. We agree that the question of the quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well known principles known as Wednesbury principles. (See Associated Provincial Picture Houses v. Wednesbury Corporation 1948 (1) KB 223). This Court had occasion to lay down the narrow scope of the jurisdiction in several cases. The applicability of the principle of ‘proportionality’ in Administrative law was considered exhaustively in Union of India v. Ganayutham (2000)IILLJ648SC ) where the primary role of the administrator and the secondary role of the Courts in matters not involving fundamental freedoms, was explained.
25. We shall therefore have to examine the cases of Sri Om Kumar and of Sri Virendra Nath from the stand point of basic principles applicable under Administrative Law, namely, Wednesbury principles and the doctrine of proportionality. It has therefore become necessary to make reference to these principles and trace certain recent developments in the law.
I(a) Wednesbury principle:
26. Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or other of the following conditions were satisfied, ­namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Service 1983 (1) AC 768 (called the GCHQ case) summarised the principles of judicial review of administrative action as based upon one or other of the following ­ viz. illegality, procedural irregularity and irrationality. He, however, opined that proportionality’ was a “future possibility “.

(b) Proportionality:

27. The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administrative action. But even long before that, the Indian Supreme Court has applied the principle of ‘proportionality’ to legislative action since 1950, as stated in detail below.
28. By ‘proportionality’, we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority ‘maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve’. The legislature and the administrative authority are however given at area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality.

• The Apex Court has then examined the issue of proportionality of legislations in UK and India as well as Australia and Canada. It is not necessary to refer to the said observations made by the Apex Court in the latter part of the said Judgment. However, the Apex Court has summarized and crystallized its views in para 71 of the said judgment, which reproduced is as under :

“71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment is disciplinary cases is questioned as ‘arbitrary’ under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment.”

There is no dispute to the ratio laid down by the Apex Court on this issue and the Apex Court has taken a consistent view throughout in all the cases where quantum of punishment is challenged.

• Having observed the settled position of law regarding the scope of the High Court in interfering with the punishment that is imposed by the Disciplinary Authority, next question which falls for our consideration is whether the inquiry was held in a fair and proper manner. We have perused the report submitted by the Internal Complaints Committee and we find that full opportunity was given to both the parties to lead evidence and the Respondent No.2 was also given a fair opportunity of defending himself. It is not necessary to deal with each and every allegation which has been made by the Petitioner in the complaint since we have to examine whether the findings recorded by the Committee can be interfered with by this Court. It is equally well settled that if a domestic enquiry is held, after giving an adequate opportunity to the parties and the Enquiry Committee comes to a particular conclusion then merely because two views are possible, the High Court while exercising its writ jurisdiction is not expected to re­appreciate the evidence and come to the different conclusion than the one which is arrived at by the Committee. We are, therefore, of the view that the Committee has dispassionately considered all the allegations and have discarded certain allegations which were made after lapse of one year and at the same time held the Petitioner guilty of instances of sexual harassments which had taken place from July, 2011 to 22^nd February, 2013. The Committee had also requested the Disciplinary Authority to take action under Rule 9 of the said Rules.
• We are of the view, therefore, that it will not be possible for us to accept the submissions of the learned counsel appearing on behalf of the Petitioner that the findings given by the Committee should be set aside or interfered with.
• So far as the order passed by the Disciplinary Authority is concerned, it is not in dispute that the punishment imposed on the Respondent No.2 is a major punishment of reduction in rank to a lower stage by two stages with cumulative effect. It has been urged that this punishment is disproportionate and the Respondent No.2 ought to have been reduced in rank. It is submitted that taking into consideration the statements of witnesses and more particularly, the statements of the women employees, who had in their statements talked about the unbecoming of a person and conduct of Respondent No.2, ought to have been considered as a circumstance for the purpose of establishing the case of the Petitioner. We are of the view that it is not possible to accept this submission of the learned counsel for the Petitioner. The Disciplinary Authority in no uncertain terms has condemned the conduct of the Respondent No.2 and has observed that this part of the behaviour of the Respondent No.2 needs to be dealt with firmly, consistent with the behaviour expected of the official in the said organization. It must also be noted that even though the Enquiry Committee did not take into consideration the allegations made in para nos. 1 to 13 of the complaint on the ground of limitation, but it still recommended that the departmental enquiry will have to be made on these allegations but not under the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
• So far as the allegations from February, 2013 onwards are concerned, a major penalty has been imposed. We are of the view that it cannot be said that the punishment which is imposed is shockingly disproportionate to the conduct of the Respondent No.2 and therefore, the ratio of the judgment of the Apex Court in the case of Om Kumar, supra, squarely applies to the facts of the present case. We are, therefore, not inclined to interfere with the punishment which is imposed by the Disciplinary Authority.
• However, we would like to make reference to the observations made by the Delhi High in the case of U.S. Verma, cited supra, wherein the observations made by the US Supreme Court have been reproduced. The Delhi High Court made reference to the observations of the US Supreme Court in para nos. 63, 64 and 65, which read as under :

“63. In Joseph Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998) the US Supreme Court (judgment delivered by Justice Scalia) even held that behavior deemed offensive could cover same sex intimidation, ridicule, or other abusive conduct. While on the subject, it would be interesting to note that the general perspective, which the courts often adopt, in the United States is not the standard of a “reasonable man” but the standard of a “reasonable woman” (Ref. Ellison v. Brady (1991) 9th Circuit, 924 F.2d, 872):

we believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. Courts “should consider the victim’s perspective and not stereotyped notions of acceptable behavior.” …Conduct that many men consider unobjectionable may offend many women…. Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly­sensitive women would object”; the characteristically male view depicts sexual harassment as comparatively harmless amusement.

We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share. For example, because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive. One writer explains: “Their greater physical and social vulnerability to sexual coercion can make women wary of sexual encounters. Moreover, American women have been raised in a society where rape and sex­related violence have reached unprecedented levels, and a vast pornography industry creates continuous images of sexual coercion, objectification and violence…. Because of the inequality and coercion with which it is so frequently associated in the minds of women, the appearance of sexuality in an unexpected context or a setting of ostensible equality can be an anguishing experience.

In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper­sensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable women would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment….Of course, where male employees allege that coworkers engage in conduct which creates a hostile environment, the appropriate victim’s perspective would be that of a reasonable man….

We note that the reasonable victim standard we adopt today classifies conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment…. To avoid liability under Title VII, employers may have to educate and sensitize their workforce to eliminate conduct which a reasonable victim would consider unlawful sexual harassment…. If sexual comments or sexual advances are in fact welcomed by the recipient, they, of course, do not constitute sexual harassment. Title VII’s prohibition of sex discrimination in employment does not require a totally desexualized work place….

We cannot say a matter of law that Ellison’s reaction was idiosyncratic or hyper­sensitive. We believe that a reasonable woman could have had a similar reaction…. A reasonable woman could consider Gray’s conduct, as alleged by Ellison, sufficiently severe and pervasive to alter a condition of employment and create an abusive working environment….”

64.
 Several other countries have drawn up laws against sexual harassment, oftentimes based on substantially different models of unwelcome and objectionable sexual behavior, deemed to be harassment than the ones that underwrote MacKinnon’s understanding, and U.S. law (Australia enacted the Sex Discrimination Act 1984; the United Kingdom enacted the Sex Discrimination Act, 1975, and also framed the Sexual Discrimination and Employment Protection (Remedies) Regulations, 1993).

65. Article 15 (3) of the Constitution enables the State to legislate special provisions, or frame policies to inter alia, address gender specific concerns. There are gender specific laws, to foster good practices in the work place, and ensure gender equality (special provisions in the Factories Act, the Maternity Benefit Act, the Equal Remuneration Act, etc). Yet, the legislative vacuum and lack of clarity in statute law to address the problem of sexual harassment at the workplace, was recognized in Vishaka, where the Supreme Court formulated guidelines that would govern the field, till appropriate legislation was initiated and brought into place. The Supreme Court, in Vishaka, recollected the Convention on the Elimination of All Forms Discrimination Against Women, adopted by the General Assembly of the United Nations, in 1979 and the resolution of the Committee on the Elimination of Discrimination against Women (CEDAW), ­set up under the Convention, adopted in January 1992 i.e. the General Recommendation No. 19 on violence against women.”

• very often women share common concerns which men do not necessarily share or the concern expressed by women have not been necessarily understood by men in the proper perspective. There is no manner of doubt that women are socially and physically vulnerable and are faced with sense of constant insecurity while working in any organization and it is the duty of every employer to ensure that the appropriate safeguards are provided by the men in the organization to protect the women from sexual harassment and other types of harassments. The employer should ensure that the duties which are cast upon them by the said Act are complied in neat. It will be relevant to reproduce the duties which have been cast upon the employer by section 19 of the said Act which reads as under :

“Section 19 – Duties of Employer – Every employer shall­

• provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
• display at any conspicuous place in the workplace, the penal consequences of sexual harassment; and the order constituting, the Internal Committee under Sub­section (1) of section 4;
• organize workshops and awareness programmes at regular intervals for sensitizing the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
• provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
• assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
• make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub­section (1) of section 9;
• 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;
• cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
• treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
• monitor the timely submission of reports by the Internal Committee.

• We are of the view that apart from displaying the penal consequences of sexual harassments and organizing the workshops by organizing the programmes at regular intervals, it is necessary to provide the safeguards and assistance to the women in relation to the complaints of sexual harassment. There should be an inbuilt internal mechanism so that any instance of harassment faced by a woman can be conveyed in a confidential manner to the senior women superior officer and, therefore, an Internal Committee should be constituted to ensure that such instances are nipped in the bud at the inception itself. This is particularly important considering the fact that the number of working women has increased in India and they are occupying various post in different sectors and are contributing financially to the economy of the country. The Internal Committee should also act in a free and transparent manner in order to ensure that the complaints of sexual harassment are inquired into seriously and that too without any bias. Very often men may view sexual conduct in a vacuum without full appreciation of the social setting or the underlying threat of violence that a woman may perceive, as observed in the judgment of the US Supreme Court in the case of Joseph Oncale vs. Sundowner Offshore Services. It is, therefore, necessary to continue to create awareness of the vulnerability of the women to all the men employees.
• Lastly but not the least, when a complaint is filed by a woman employee, it should be promptly looked into and an enquiry should be made by the Internal Committee within a reasonable period of time.
• Lastly, the safety mechanism should be evolved to ensure that the women employees can express their concern to a suitable higher officer.
• Though the Apex Court delivered the judgment in Vishakha’s case, supra, for almost a period of 11 years no legislation was passed and finally the said Act was passed in 2013. We find that though the said Act was passed in 2013, yet most of the companies, corporations and government undertakings have not constituted the Internal Complaints Committee. If this is not done, these Committee should be constituted in an expeditious manner.
• The writ petition is disposed of in the above terms. Rule is discharged accordingly.

We express our appreciation to the assistance given to us by both the learned counsel.

(MRS.SWAPNA JOSHI,J.) …..

(V. M. KANADE,J.)

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SARDAR VALLABHBHAI NATIONAL INSTITUTE OF TECHNOLOGY & JUDGMENT

C/LPA/1349/2015

JUDGMENT

1….Appellant(s)

Versus

Whether Reporters Of Local Papers … vs Ranjit Roy & on 22 March, 2016

RANJIT ROY & 1….Respondent(s)

Appearance:

MR RS SANJANWALA, SENIOR COUNSEL with MS MEGHA JANI,

ADVOCATE for the Appellant(s) No. 1 – 2

MR YATIN OZA, SENIOR COUNSEL and MR ASIM PANDYA with MR

ASHISH B DESAI, CAVEATOR for the Respondent(s) No. 1

RULE SERVED for the Respondent(s) No. 2

CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI

and

HONOURABLE MR.JUSTICE Z.K.SAIYED

Date : 22/03/2016

ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI)

1. These appeals arise out of the common judgment of the learned Single Judge dated 7.8.2015 passed in Special Civil Applications No.4213/ 2015 and No.3563/ 2015.
2. Brief facts are as under :−
3. The original petitioners (hereinafter to be referred to as ‘the petitioners’) of the said Special Civil Applications are Associate Professors working with Sardar Vallabhbhai Patel National Institute of Technology (hereinafter to be referred to as ‘the institute’). According to the institute, several complaints of sexual harassment were received against the petitioners from the girl students and other women. The institute therefore constituted Internal Complaints Committee (hereinafter referred as ‘ICC’ for short) in terms of the provisions containing Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 (hereinafter to be referred to as ‘Act of 2013’) to examine the complaints of such girl students and other women employees. The committee asked the petitioners to remain present on 6.2.2015. According to the institute, after giving a reasonable opportunity of being heard to the petitioners the ICC submitted its report on 13.2.2015 in which the ICC recommended to the institute to award penalty upon the petitioners and for their termination from service with the stipulation that they cannot be employed as a teaching staff elsewhere also.
4. Pursuant to such report of the ICC two separate show cause notices, both dated 17.2.2015, came to be issued by the institute on the petitioners as to why suitable action should not be taken as per report of the ICC. In such notices it was pointed out that the ICC in its report had held the petitioners guilty of sexual harassment by way of “(a) physical contact and advances (b) other unwelcome physical, verbal and nonverbal conduct of sexual nature (c) threatening to the victims during the investigation process of ICC. The petitioners were called upon to show cause for such misconduct. Alongwith such notice the petitioners were also supplied relevant portion of the report of the ICC. It was, therefore, conveyed that “in light of the above mentioned alleged misconduct by Dr.Ranjit Roy, Associate Professor in Electrical Engineering Department, Dr.Ranjit Roy is given an opportunity to explain as to why suitable action should not be taken against him.” Similar proposal was made against the other petitioner also.
5. Ranjit Roy replied to such notice under communication dated 26.2.20 15 pointing out that he is working as Professor since 20 0 7. Earlier he was teaching at West Bengal. In the past he had never been involved in any such incident. He requested that his detailed representation which was annexed to such letter be taken into account before taking final decision in which he had pointed out why according to him none of the allegations were established.
6. Ranjit Roy filed further reply dated 3.3.2015 and contended, inter alia, that the inquiry should have been conducted in terms of the Central Civil Service (Classification Control & Appeals) Rules 1965 (hereafter after to be referred to as ‘CCS (CCA) Rules’ for short). He contended that his service cannot be terminated without following the procedure envisaged under Articles 311 of the Constitution. He also questioned the procedure followed by the ICC contending that such procedure was neither fair nor reasonable and was thus violative of Article 14 of the Constitution.
7. Ignoring such pleas the Director of the institute passed order dated 6.2.2015. In such order it was noted that as per the committee there were three serious charges of sexual harassment against the petitioner. As per the report of the Committee Dr. Ranjit Roy had misused his position as a teacher and harassed the complainants. He had indulged in physical sexual overtones and had created hostile work environment for complainants. He had also threatened M.Tech and Ph.D. students during the investigation. It was recorded that after due deliberation the Board had come to a conclusion that Dr.Ranjit Roy had committed misconduct in terms of Rule 3C of CCS (Conduct) Rules, 1964. In the conclusion under such order it was conveyed that looking to the gravity of the charges the competent authority under the National Institute of Technology Act, 20 0 7 had resolved to dismiss Dr.Ranjit Roy from service immediately.
8. Against the other petitioner, namely, Prof. Vivekanand Mishra also similar procedure was followed. After considering his replies the Board of Directors of the respondent institute passed the order of penalty dated 4.3.2015 which decision was conveyed to him by the Director under his letter dated 6.3.2015. It is not necessary to record details in the second case.
9. Both these orders were challenged by the petitioners before the learned Single Judge taking up multiple contentions. It was contended that the procedure as required under the CCS (CCA) Rules was not followed. In any case reasonable opportunity was not made available to the delinquents before passing the final order of punishment. It was contended that the charges leveled against the petitioners were not established. On the other hand, on behalf of the institute it was argued that CCS (CCA) Rules would not apply, since detailed procedure is provided under the National Institute of Technology Act, 2007 and the Statutes framed under the said Act. It was also contended that principles of natural justice are not rigid rules of procedure. When the question of dealing with complaints of sexual harassment on campus arises, the fulfillment of requirement of principles of natural justice must be seen in light of peculiar facts and circumstances. Majority of the complainants were girl students of tender age. It was not possible to reveal the identity of such complainants whose complaint was against the behaviour of a senior professor. It was, therefore, also not possible to offer such witnesses for cross−examination.
10. The learned Single Judge substantially allowed both the petitions. Impugned orders of dismissal of both the petitions were set aside. The institute is, however, permitted to initiate fresh proceeding against the petitioners by deciding whether to invoke powers under the proviso to clause (b) of Articles 311(2) of the Constitution or to conduct a departmental inquiry treating the report of the ICC as report of preliminary inquiry. It was observed that if such an inquiry is to be undertaken, the same would be completed within three months from the date of receipt of the copy of the order. It was also provided that such inquiry would be conducted as far as practicable following Rules 14 and 15 of the CCS (CCA) Rules. It is this judgment which the institute has challenged by filing Letters Patent Appeals No.1349 and 1350 of 20 15.
11. During the pendency of the writ petitions the institute had filed Civil Application before the learned Single Judge for vacating the interim relief against protection to the petitioners allowing them to retain the staff quarters at the institute campus site. The learned Single Judge while disposing of the writ petitions directed the petitioners to vacate the quarters and vacated the interim relief for such purpose. This order of the learned Single Judge has given rise to Letters Patent Appeals No.1328 and 1329 of 2015 filed by the employees.
12. The learned Single Judge in the impugned judgment noted that in several communications and orders which the institute had passed, there was a clear reference to the provisions of CCS (CCA) Rules. She was of the opinion that the procedure contained in the CCS (CCA) Rules as far as practicable in such proceedings was required to be followed. If no rules are provided then the procedure to be followed is as provided under Sexual Harassment Rules particularly Rules 7 and 8 thereof. In the present case, the learned Judge was of the opinion that the procedure under CCS (CCA) Rules though required, was not followed. Having said so the learned Judge also held that the procedure laid down in Rule 7 of Sexual Harassment Rules had also not been followed by the ICC. The last alternative contention of the institute that what was required to be followed was the principles of natural justice which should be flexible in such cases, was also examined. It was also held that even such requirements were not satisfied. The learned Judge therefore concluded that the procedure under Rule 14 of CCS (CCA) Rules was not followed. Procedure under Rule 7 of the Sexual Harassment Rules was also not followed and even if assuming that these rules did not apply even principles of natural justice were also not followed. The learned Judge also recorded that there was no conscious decision recorded for dispensing with the departmental inquiry in terms of second proviso to clause (b) to Article 311(2) of the Constitution.
13. Appearing for the institute learned counsel Shri Sanjanwala submitted that,
14. The learned Judge committed an error in holding that CCS (CCA) Rules apply. He submitted that when the National Institute of Technology Act, 2007 and Statutes made thereunder provide for a detailed procedure, reference to CCS (CCA) Rules would not be permissible. Merely because the institute referred to such rules in the order of suspension or in the correspondence with the petitioners would not establish its applicability.
15. Counsel submitted that the ICC had followed all the necessary procedure by providing gist of complaints to the petitioners and giving reasonable opportunity of making representations. The report of the Committee was also supplied to the petitioners, their representations considered before the Board of Directors took the final decision.

• The allegations established against the petitioners were very serious. The nature of inquiry and the establishment of charges must be seen in light of the sensitivity of the subject, particularly looking to the fact that the petitioners were the senior professor of the institute and majority of the complainants were the girl students studying in the same college.

14. Reliance was placed on the decision of the Supreme Court in the case of Hira Nath Mishra & Ors. vs. The Principal, Rajendra Medical College, reported in (1973) 1 SCC 805 in which in the context of complaint made by the girl students in a college it was observed that strict principles of natural justice would not apply. It was, however, a case where the girl students had made a serious complaint of male students having behaved vulgarly and the action initiated by the college was of rusticating such male students. It was observed that administration could not have called the police, because if the investigation had started the female students of sheer fright and harm to their reputation would not have cooperated. It was observed that under such circumstances the authorities had to device a just and reasonable plan of inquiry which, on one hand, would not expose individuals to harassment and on the other hand secure reasonable opportunity to the students to state their cases.
15. Reliance was also placed on the decision in the case of Medha Kotwal Lele & Ors. vs. Union of India and Ors, reported in (2013) 1 SCC 311 in which in continuation of the judgment of the Hon’ble Supreme Court in case of Vishaka vs. State of Rajsthan, reported in (1997) 6 SCC 241 further directions were issued for carrying out amendments in the service rules of educational institutions to treat the report of the Complaints Committee as an inquiry report.
16. In the context of the petitioners retaining staff quarters it was contended that their presence at the campus would not be desirable, particularly looking to the sensitive nature of the case as they could exert influence over the complainants and witnesses. Therefore, in order to conduct a fair inquiry their presence should be removed from the campus. It was contended that both the professors have their own residential accommodation at Surat, where the college in question is situated.
17. On the other hand, learned Senior Counsel Shri Yatin Oza opposed the Letters Patent Appeals filed by the institute contending that the learned Judge has given cogent reasons. Procedure under the CCS (CCA) Rules was not followed. Even otherwise, the principles of natural justice were breached. No charge−sheet was issued. Copy of inquiry report was not supplied. Statements of witnesses were not supplied or even cited.
18. Regarding the direction of the learned Judge regarding the quarters, counsel submitted that no untoward incidents have been reported against either of the petitioners. Pending further inquiry they are ordered to be continued under suspension. During suspension an employee does not cease to be in employment. He, therefore, cannot be asked to vacate the staff quarter.
19. Before dealing with the rival contentions, we may briefly record the procedure followed by the institute before passing the punishment orders of dismissal. As noted, upon receipt of several complaints an ICC was constituted. The ICC called the petitioners orally to remain present during the hearing on 6.2.2015. It is undisputed that on such date the petitioners were asked to explain the conduct. Their oral representations and denials were noted and the proceedings were thereafter adjourned. It appears that on that day the petitioners were supplied copies of two complaints signed by several students of the college, of course without revealing the identity of the signatories. It seems that in addition to the said two complaints made in writing by bunch of students, several other oral complaints were also made by individual or group of the students to the committee. After the proceedings of 6.2.2015 several of such statements or complaints were reduced in writing and duly signed by the complainant students and in some cases further supported by other students or the staff members. Admitted position is that copies of such complaints were not supplied to the petitioners. There was no further bi−parte hearing before the ICC. The ICC submitted its report on 13.2.20 15 which formed the basis for the institute to first issue show cause notice and after eliciting replies from the petitioners pass orders of dismissal.
20. We may first examine whether either procedure laid down in the CCS (CCA) Rules or under the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 was required to be followed. As is well known that CCS (CCA) Rules apply to all employees of the Central Government. Sub−rule (1) of Rule 3 of the said Rules provides that these rules shall apply to every Government servant including Civil Government servant in the defence services, but would not apply to five categories of Government servants specified in clause (a) to (e) thereof. Essentially therefore CCS (CCA) Rules apply to every Government servants other than those mentioned in the exclusion clauses. Admittedly the petitioners are not Government servants. They are in the employment of an educational institution. It is not even their case that being Government servants they were covered under CCS (CCA) Rules. Merely because the institute referred to such rules in some of the correspondence would not by itself make the applicability of rule binding to the institute. It is well known that as long as there is power to take certain action mere reference to a wrong statutory provision would not invalidate exercise of such powers. In the present case, in fact, neither the order of suspension nor that of dismissal is in challenge on such ground of reference to a wrong provision. The conclusion of the learned Single Judge therefore that procedure under Rules 14 and 15 of the CCS (CCA) Rules was required to be followed and having not so done the institute in the fresh inquiry would do so, therefore cannot be upheld.
21. Coming to the question of applicability of Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 we may first refer to some of the provisions contained in the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013. Term ‘work place’ has been defined under Section 2(o) of the Act, 2013, perusal of which would show that the same includes not only department, organization, undertaking of the Government, local authority or a Government company but also private sector, organization, private venture undertaking etc. Term ‘sexual harassment’ is defined under Section 2(n) in a widest possible manner. Provisions of Act, 2013 would thus demonstrate that detailed provisions have been made for protection of women at work place which need not necessarily be the Government organizations. In this context, Section 11 needs to be seen which pertains to inquiry into complaints. Under Sub−section (1) of Section 11 it is provided that subject to the provision of Section 10 pertaining to conciliation, internal committee or the local committee, as the case may, shall where the respondent is employee, proceed to make inquiry into complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist in such manner as may be prescribed. Such procedure is prescribed under the Rules of 2013 and particularly under Rule 7 thereof which pertains to manner of inquiry into complaint. This rule sets out the provisions for conducting the inquiry by the complaints committee and the manner in which such inquiry would be conducted. However, if there are service rules governing the employee, in view of Section 11 of the Act of 2013 the procedure prescribed under the Rules of 2013 would not apply.
22. In this context we may notice that the National Institute of Technology Act, 2007 contains in the Schedule−1 the list of central institutes incorporated into the Act, one of them being the Sardar Vallabhbhai Patel Institute of Technology. In term of Section 1 of Section 13 of the National Institute of Technology Act, 2007 the board of every institute would be responsible for general superintendence, direction and control of the affairs of the institute and would exercise all powers of the institute not otherwise provided in the Act, Statute or Ordinances. Section 25 of the Act pertains to the power for framing Statutes and provides that subject to the provisions of the Act the Statute may provide for all or any of the following matters which in clause (g) includes the classification, the method of appointment and the determination of the terms and conditions of service of teachers and other staff of the institute.
23. In exercise of such powers the Central Government has framed the First Statute of National Institute of Technology (hereinafter referred to as the ‘First Statute’). Statute 24 of the First Statute pertains to the general terms and conditions of service of permanent employees. It provides that permanent employee of the institute would be governed by the following terms and conditions which in clause (5) provides that the employee of the institute shall be governed by the Central Civil Service (Conduct) Rules 1964. Statute 26 pertains to suspension, penalties and disciplinary proceedings. Relevant portion of which reads as under :− “(1) The Director may place a member of the staff appointed at the institute under suspension :−

(i) Where a disciplinary proceeding against him is contemplated or is pending;

(ii) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial:

Provided that where a member of the staff is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty−eight hours, such member of the staff shall be deemed to have been placed by an order of the competent authority under suspension with effect from the date on which he was so detained.

(2) During the period of suspension, the member of the staff shall be entitled to the following payments, namely :−

(a) a subsistence allowance at an amount equal to the Leave Salary, which the staff member would have drawn had he been on leave on half pay and Dearness Allowance, if admissible on the basis of such leave salary :

Provided that where the period of suspension exceeds six months, the Subsistence Allowance shall be as follows :

(i) the amount of subsistence allowance may be increased by a suitable amount not exceeding fifty percent of the subsistence allowance admissible during the period of the first six months, if, in the opinion of the Competent Authority the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the employee concerned;

(ii) the amount of subsistence allowance may be reduced by a suitable amount, not exceeding fifty percent of the subsistence allowance admissible during the period of the first six months, if, in the opinion of the Competent Authority, the period of suspension has been prolonged due to reasons, to be recorded in writing, directly attributable to the employee.

(b) The rate of dearness allowance will be based on the increased or as the case may be the decreased amount of subsistence allowance admissible under sub−statute 2.

(c) Any other compensatory allowance admissible from time to time on the basis of pay of which the staff member was in receipt of on the date of suspension subject to the fulfillment of other conditions laid down for the drawl of such allowances.

(5) The following penalties may be imposed on any employee :−

(i) censure;

(ii) withholding of increments or pay;

(iii) withholding of promotion;

(iv) recovery from his pay of the whole or part of any pecuniary loss the institute by negligence or breach of orders;

caused to

(v) reduction to lower grade or post or to a lower
stage in a time−scale for a period of three years without cumulative effect and not adversely affecting his pension (where ever applicable):

(vi) compulsory retirement;

(vii) removal from service which shall not be a disqualification for future employment under the institute;

(viii) dismissal from service, which shall ordinarily be a disqualification for future employment under the institute.

(6) No order imposing on any member of the staff any of the penalties specified at (v) to (viii) above shall be passed by any authority subordinate to that by which he was appointed and except after an enquiry has been held the member of the staff has been given reasonable opportunity of showing cause against the action proposed to be taken in this regard.

time−scale of pay,

(7) No order imposing on any member of the staff any of the penalties specified at (i) to (iv) above shall be passed by any authority subordinate to that by which he was appointed and unless the member of the staff concerned has been given an opportunity to make a representation to the appointing authority:

provided that the provisions of sub− statute (5) and (6) shall not apply to the following :−

(a) where an employee is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;

(b) where the authority empowered to dismiss or remove the person or to reduce him in rank is satisfied that for some reason to be recorded that authority in writing, it is not reasonably practicable to give to that person such opportunity; or

(c) where the visitor is satisfied that in the interest of the security of the State, it is not expedient to give to that person such opportunity.

(8) If, in respect of such person as aforesaid, any question arises whether it is reasonably practicable to give to an opportunity referred to under clause (b), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.

(9) A member of the staff aggrieved by any order imposing penalty passed by the Director against him shall be entitled to prefer an appeal to Board of Governors against the order and there shall be no further appeal from the decision of the Board.

(10) A member of the staff aggrieved by any order passed by the Board inflicting a penalty on him shall be entitled to prefer an appeal to the Visitor against such order.

(12) The authority to whom an appeal against an order imposing penalty lies may, of its own motion or otherwise call for the records of the case from the Director or the Board, as the case may be, review any order passed in such a case and pass such orders as it deems fit.

 (13) Notwithstanding anything contained in this Statute, the Visitor may, on his own motion or otherwise after calling for the records of the case, review any order which is made under this Statute, and

(a) confirm modify or set aside the order;

(b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order,

(c) remit the case to the authority which made the order or to any other authority directing such further action or enquiry as he considers proper in the circumstances of the case, or

(d)Pass such other orders as he deems fit:

Provided that an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty.”

24. It can be thus seen that the Statute provides for the employees to be governed by the Central Government Conduct Rules and there is no reference to being governed by the Classification, Control and Appeal Rules. On the contrary, the Statute 26 is a self− contained code providing for suspension, penalties and disciplinary proceedings against the employees of the institute. It envisages placing a staff member under suspension, continuation of such suspension, payment or discontinuation of payment of subsistence allowance and so on. It prescribes penalties ranging from censure to dismissal from service. It lays down in clauses (6) and (7) of the said Statute the procedure for imposing minor and major penalties. The Statute also provides for appellate and revisional powers. When such detail procedure has been contained in the Statutes framed by the Central Government in discharge of its delegated legislative powers vested under the parent Act, the procedure set out in Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 would not be applicable. This would be for two reasons. Section 11 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 clearly envisages the procedure prescribed to be followed only when the service rules are silent. Secondly when the service rules hold the field to refer to the general procedure laid down under the Rules of 2013 would lead to conflict of procedures which would not be envisaged by the legislation.
25. Under the circumstances, we do not concur with the view of the learned Single Judge that the procedure under the CCS (CCA) Rules or at any rate that laid down in Rule 7 of Rules 2013 was required to be followed before imposing any punishment on the petitioners. However, it cannot be gainsaid that at any rate the procedure under Statute 26 of the first Statute had to be followed. Even if such procedure was flexible and in view of serious charges of sexual harassment against the professor by the girl students, require certain safeguards, conclusion of the learned Single Judge that neither such procedure nor the very basic rules of natural justice were followed, was completely justified. We have noted the procedure adopted by the ICC once, such committee was constituted and the matter was referred for its consideration. On 6.2.2015, the petitioners were summoned without any written communication. Even assuming that they were made aware about the gist of the allegations against them, their responses were obtained extempore and orally. The ICC thereafter submitted its report without any further participation from the petitioners.
26. The procedure adopted by the ICC for drawing the report which forms basis for the institute to impose the major punishment would not satisfy any requirement of principles of natural justice. The petitioners were not communicated in writing the charges. Even the gist of complaints and contents of statements that may have been made against the petitioners were not conveyed. The petitioners were not given any time to collect material and make the representations. Their oral response was heard without reducing into writing. After such meeting further statements were recorded without ever sharing gist thereof with the petitioners. On all counts therefore the procedure adopted by the ICC falls short of satisfying the requirement of the natural justice. We, therefore, would not temper with the decision of the learned Single Judge. We would, however, recognize the anxiety of the institute to grant certain flexibility in the procedure to be followed, when we are dealing with the serious allegations of sexual harassment against the teaching faculty of an educational institution and the complainants are none other than the girl students of tender age. We may recall clause (6) of the Statute 26 of the first Statute provides that no order imposing any of the major penalties would be passed by an authority subordinate to which he was appointed and except after an inquiry has been held and the staff members have been given a reasonable opportunity of showing cause against the action proposed to be taken in this regard. Thus, this clause provides for two requirements, one is of a major penalty not being imposed by an authority subordinate to the appointing authority and without holding an inquiry, where the member of the staff has been given a reasonable opportunity of showing cause against proposed action. In tune with these requirements and looking to the peculiar facts of the case, we direct the institute to reduce in writing the allegations against the petitioners emerging from various complaints received by the institute. This would form the charge−sheet against the petitioners and would be served on them. The petitioners would have time of 14 days to reply to such charge−sheet. The institute shall also supply to the petitioners the statements or copies of complaints unless to maintain secrecy of the complainants, it is found not desirable to provide the entire documents in which case gist of the complaints/ statements would be supplied.
27. If the institute desires to examine any other witness, the petitioners would have right to cross−examine them. However, this would not mean that it will be obligatory on the institute to examine girl students, who might have complained or whose statements have been recorded on which the institute desires to rely and in which case the petitioners would have no right to seek their cross−examination.
28. It would be open for the petitioners to lead evidence before the ICC in their defence which will be admitted by the ICC depending on its relevance.
29. Upon completion of this procedure ICC shall submit a fresh report to the institute. The institute would after supplying copy of the report of the ICC and enabling the petitioners to make their representation shall take a final decision in accordance with law on the basis of the material that may be available on record.
30. It is clarified that this procedure is provided looking to the peculiar facts of the case and the background leading to these appeals; in order to ensure fair enquiry and conclusions.
31. Coming to the question of retention of the staff quarters we concur with the views of the learned Single Judge that the continued presence of the petitioners at the campus would not be desirable for a fair and impartial inquiry. When it is pointed out that the petitioners themselves have suitable residential accommodation at Surat nearby to the site of the institute, they must vacate the staff quarters latest by 15th April, 2016. This would be subject to two riders viz. that the petitioners would receive H.R.A. in terms of the rules as may be payable to the employees under suspension and that they will be paid travel charges whenever they are called in the departmental inquiry. The learned Single Judge has provided that pending fresh decision by the institute the petitioners would remain under suspension. Such direction would continue to operate. The departmental inquiry may be concluded as early as possible and preferably within four months from the date of receipt of copy of this order.
32. With these further observations and directions all the four appeals are disposed of.

(AKIL KURESHI, J.) (Z.K.SAIYED, J.) KKS

Indian Kanoon – http://indiankanoon.org/doc/115523273/

G. Pushkala vs High Court Of Judicature on 20 June, 2007 DATED: 20.6.2007

Madras High Court

20. Pushkala vs High Court Of Judicature on 20 June, 2007 DATED: 20.6.2007

CORAM:

THE HONOURABLE MR.JUSTICE DHARMA RAO ELIPE

AND

THE HONOURABLE MS.JUSTICE K. SUGUNA

W.P. Nos.10157 of 2000 and 29024 of 2003 and

W.P.M.P. No.17558 of 2006

W.P. No.10157 of 2000:

1. Pushkala … Petitioner

Vs.

1. High Court of Judicature at Madras, rep. by its Registrar General, Chennai-104
2. K.Muthukumarasamy, Deputy Registrar, Tribunal CLAA (on deputation), High Court Campus, Chennai-600104
3. V.Navaneethan, Special Officer, Vigilance Cell, High Court, Chennai-104 … Respondents

W.P. No.29024 of 2003:

1. Muthukumarasamy … Petitioner

Vs.

The Registrar General

High Court of Judicature at Madras

Chennai 600 104 … Respondent

* * *

Both the petitions are filed under Article 226 of the Constitution of India. W.P.No.10157 of 2000 has been filed praying to Issue a Writ of Declaration to declare that the enquiry constituted by the first respondent and being conducted by the 3rd respondent vide ROC NO.24/2000 Con B2 dated 14-6-2000 is illegal and unconstitutional and consequently direct the first respondent to implement the directions given by the Hon’ble Supreme Court in Vishaka vs. State of Rajasthan (AIR 1997 SC 3011) and properly investigate into the petitioner’s complaint dated 18-2-2000 against the 2nd respondent through an independent complaints committee consisting of representatives of Women’s Organisations and NGOs and punish him after affording due protection to the petitioner.

W.P.No.29024 of 2003 has been filed praying to issue a Writ of Certiorarified Mandamus, to call for the records of the respondent in R.O.C. No.24/2000 Con B.2 dated 10.10.2002 and to quash the same, directing the respondent to reinstate the petitioner in service with all attendant benefits.

* * *

For Petitioner : Mr. S.V.Jayaraman, in W.P.No.29024/03, Senior Counsel who is R2 in for Mr.K.Balachandran WP.10157/2003

For Petitioner

in W.P.No.10157/00 : Ms.R.Vaigai

For Respondent in

W.P. No.29024/03 : Mr.B.Rajendran

 amp; for R1  amp; R3 in W.P. No.10157/00

* * *

COMMON ORDER

DHARMA RAO ELIPE, J.

1. While the Complainant in the domestic enquiry, which was initiated on her complaint, has P.No.10157 of 2000 seeking a Writ of Declaration, the delinquent Officer who was inflicted with the order of compulsory retirement has filed W.P.No.29024 of 2003 challenging the said punishment. Since both the matters are inextricably connected with each other, they were heard together for better appreciation of the facts of the case and this common order is passed.
2. On the basis of the complaint dated 2.2000 given by the petitioner in W.P.No.10157 of 2000 (hereinafter referred to as ‘the complainant’) against the petitioner in W.P.No.29024 of 2003 (hereinafter referred to as the delinquent officer), alleging ‘sexual harassment’ and ‘indecent behaviour’ at the place of work, disciplinary proceedings were initiated against the delinquent officer in which he was found guilty and the punishment of compulsory retirement from service was imposed on him.
3. The complaint against the delinquent-officer, in the words of the complainant, is as follows: “My Lord, with regret, I would like to submit that soon after days of my deputation to the Advisory Board, K. Muthukumarasamy started behaving with me in an improper manner by using intolerable words. He used to blabber so many things including saying that his wife is a permanent patient and that he is not leading a happy married life and so on. Since then, I have been avoiding him and he used to get annoyed for that. Later this became a nuisance and he started going to the extent of writing his expressions in bits of papers and giving it to me. Though, I use to destroy them then and there, I have some in hand. He even started calling my house in the midnights which I used to avoid saying one reason or the other. … … … Now, though I have been transferred from the said Tribunal (CLAA) recently, he is continuing his harassment one way or the other. Even now instead of feeling remorse, he harasses me again and again by words and deeds.”
4. A show cause notice was issued to the delinquent-officer calling upon him to submit his Since the explanation offered by the delinquent-officer was found to be not satisfactory, the following charges were framed against him and a departmental enquiry was initiated against him: 1.That you, Thiru Muthukumarasamy, Deputy Registrar, now on deputation as Deputy Registrar, Tribunal under Criminal Law Amendment Act, Chennai had behaved in an improper manner with Tmt. G. Pushkala, P.A. to Hon’ble Judges, while she was working as P.A. on deputation in the said Tribunal by issuing two slips to her containing the following words: ”I want to kiss on cheeks, chin and lips”  ”VERNACULAR (TAMIL) PORTION DELETED” and this amounts to a demand or request for sexual favours and sexual harassment at the place of work and thereby you outraged her modesty and caused mental torture and agony to her and thus committed the acts of misconduct unbecoming of a Government Servant for which you are liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
5. That you, Thiru Muthukumarasamy, Deputy Registrar, now on deputation as Deputy Registrar, Tribunal under Criminal Law Amendment Act, Chennai while Tmt.G. Pushkala, P.A. to Hon’ble Judges, was working as P.A. on deputation in the said Tribunal, called her house in the midnights and caused mental torture and agony to her and that even after her transfer from the said Tribunal, you had harassed her again and again by words and deeds, thereby outraged her modesty and caused mental torture and agony to her and thus committed the acts of misconduct unbecoming of a Government servant for which you are liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 
6. In the enquiry proceedings, the complainant examined herself as W.1 and also examined five other persons, which included her husband, her colleague and other court-staff. She also produced eight documents G. Pushkala vs High Court Of Judicature on 20 June, 2007 as documentary evidence. The delinquent-officer examined a court-staff as defence witness and produced fourteen documents as documentary evidence. The enquiry officer, on the basis of the materials placed before him, came to the conclusion that the delinquent-officer harassed, pestered and subjected the complainant by a conduct against moral sanction and could not stand the test of decency and modesty and made unwelcome sexual advances, which action would squarely covered by the term ”sexual harassment” even though there was no physical contact and held that the delinquent was guilty for the act of  ”sexual harassment” in the work place against the complainant and as such the charges levelled against the delinquent were proved. The delinquent-officer was given an opportunity to submit his further representation, if any, to the findings of the enquiry officer, but his further representation and representation made by him in person were found to be not satisfactory and the Appointing Authority has accepted the findings of the enquiry officer and imposed the punishment of  ”compulsory retirement” from service on the delinquent officer.
7. The learned senior counsel for the delinquent officer/petitioner in P.No.29024 of 2003 has submitted that the petitioner was originally appointed as Steno-Typist in the District Court, Vellore in the Tamil Nadu Judicial Ministerial Service in the year 1981 and later on in the year 1988, he was appointed on transfer as P.A. to Hon’ble Judges and since his lien over the post in the parent department has not been severed as per the Fundamental Rules (FR) and Government Orders, his ”Appointing Authority” is the District Judge, Vellore, who alone is competent to initiate disciplinary action and to impose punishment. It was further contended that since the alleged  ”sexual harassment” took place when the petitioner and the complainant were working in the Tribunal (CLAA), it is the Presiding Officer of the Tribunal who is the competent authority to initiate disciplinary action and to impose punishment and that Madras High Court Service Rules will have no bearing and as such, the disciplinary proceedings initiated by the respondent was in violation of the procedures as well as the C.C.A. Rules.
8. On the merits of the complaint, learned senior counsel for the delinquent officer submitted that the two slips in question were part of the materials prepared by the delinquent for submitting a dissertation on the subject ”Child Labour Exploitation Preventive Measures and Indepth Study” to the Annamalai University for completing his L. Degree Course. Learned senior counsel further submitted that the delinquent used to note down his thoughts on the above said subject on bits of papers/slips and later on incorporate the same in his dissertation and in fact, the complainant herself assisted the delinquent in preparation of the dissertation and that she also knew well that the delinquent used to instantaneously jot down his thoughts on bits of paper/slips and later on incorporate the same in the dissertation. Learned senior counsel submitted that the lodging of the complaint was only a counter-blast to the delinquent’s demand for repayment of the money borrowed by the complainant and in making such a complaint of  ”sexual harassment ”, the complainant was induced and encouraged by a group of disgruntled staff, who could not digest the successive promotions viz. Sub Assistant Registrar, Assistant Registrar and Deputy Registrar given to the delinquent in a short span of time. Learned senior counsel submitted that the writings found on the two slips were not intended towards the complainant for soliciting  ”sexual favours” from her. The said slips, which were kept in the office room of the delinquent, were stealthily removed by the complainant for using the same as the basis for making a complaint of  ”sexual harassment” against the delinquent.
9. The learned counsel appearing for the complainant would submit that the delinquent officer, taking advantage of his position as superior to that of the complainant, has started behaving indifferently and issued the slips expressing his quench towards her and even made phone calls to her during middle of the nights, tarnishing her image in the family circle and disturbing her family life also and unable to bear the torture meted out to her, the complainant had to lodge the complaint against the erring official, which was properly considered by the Enquiry Officer and the Appointing Authority, affording all opportunities to the The learned counsel further submitted that since the enquiry officer originally appointed had not acted according to the rules, the complainant had filed W.P.No.10157 of 2000 and even sought for the implementation of the directions of the Apex Court in VISHAKA AND OTHERS vs. STATE OF RAJASTHAN AND OTHERS (AIR 1997 SC 3011) wherein the Apex Court considering the fundamental rights of working women under Articles 14,19 and 21 of the Constitution, framed certain guidelines and norms for protection and enforcement of these rights of the women at their workplaces, and prayed to allow W.P.No.10157 of 2000 and dismiss W.P.No.29024 of 2003.
10. Before dealing with the questions involved in these matters, it must be said that though the complainant challenged the enquiry proceedings by filing P.No.10157 of 2000, casting remarks on the then Enquiry Officer, who was also impleaded as third respondent, since the said individual has retired from the service, a Division Bench of this Court by its order dated 5.11.2001, made in W.M.P.Nos.14658 and 14659 of 2000 has issued a direction to proceed with the disciplinary enquiry by affording opportunity to both sides by another Enquiry Officer. Consequent thereupon, the enquiry was proceeded with, which culminated in the punishment of the delinquent officer. Therefore, that part of the prayer in W.P.No.10154 of 2000 becomes infructuous.
11. The other part of the prayer of the complainant in P.No.10154 of 2000, to direct the 1st respondent/Registrar to implement the directions of the Apex Court in Vishaka case (cited supra), is in the nature of advancing the cause of justice and in the larger interest of society. But, since during the pendency of the said writ petition, Complaints Committees have been constituted by the High Court to look into the complaints made against the officers and Staff of the High Court and the Judicial Officers and the Judicial Ministerial Staff of the Subordinate Judiciary, by R.O.C.No.5000-A/2001-B2, dated 15.5.2001, nominating one Chairperson and three Members for each Committee, thus answering such prayer of the petitioner and complying with the directions of the Apex Court in Vishaka case, we hold that the writ petition filed by the complainant in W.P.No.10154 of 2000 in its entirety became infructuous. Hence, it is liable to be dismissed as such.
12. However, since the said proceedings of the Registrar does not contain names of the Chairperson or the Members, but carries a bracketed information that they would be nominated as and when necessary, we feel it appropriate to direct the Registrar General, High Court of Madras, to name Chairpersons and Members to such Committees, with no further loss of time, and circulate copies of the same to all the Sections in the High Court and to all the Subordinate Courts, so that the aggrieved personnel can report to the respective Committees to redress their
13. During pendency of P.No.29024 of 2003, the complainant also filed WPMP.No.17558 of 2006, praying to implead her as a party to the said proceedings. Since she has been extensively heard on the points connected to and covered by W.P.No.29024 of 2003, as it being a common hearing in the writ petition filed by the complainant and the writ petition filed by the delinquent officer, we feel it not necessary to implead her as a party in W.P.No.29024 of 2003. Accordingly, W.P.M.P.No.17558 of 2006 is dismissed.
14. Thus settling these issues, now we shall proceed to deal with the main matter in issue the complaint lodged by the complainant, which ultimately culminated in imposing a punishment of compulsory retirement on the delinquent officer.
15. The delinquent officer contended that since the petitioner was originally appointed as Steno-Typist in the District Court, Vellore and since his lien over the post in the parent Department has not been severed, only the District Judge, Vellore is competent to initiate disciplinary action and to impose Though this plea was taken by the delinquent officer only at the time of this writ petition and never raked up such an issue either before the Enquiry Officer or before the Appointing Authority, since the same is in the nature of a legal question, we entertained the said plea so as to be answered. On a perusal of the entire materials placed on record and the relevant provisions of law, we are not able to appreciate the said contention of the delinquent officer for the reason that on his being appointed as P.A. to the Honourable Judges in the High Court w.e.f. 27.1.1988, which is a permanent post, carrying a definite time-scale of pay and also enjoyed promotions thereafter, including deputations, it cannot be said that his lien continued in the Tamil Nadu Judicial Ministerial Service.
16. The delinquent officer further contended that since he was deputed to the Tribunal constituted under the provisions of the Criminal Law Amendment Act, the competent authority to initiate departmental proceedings, if any, is the Presiding Officer of the Tribunal and the Madras High Court Service Rules will have no bearing on the Criminal Law Amendment Act For this purpose, he relied on G.O.Ms.No.111 Personnel and Administrative Reforms (FR.II) Department dated 2.5.1994 which deals with deputation of Government Servants to State Owned Corporations/Boards/Undertakings and to Cooperative Institutions, Autonomous Bodies, Universities etc., which have no application to the case of the delinquent officer. Since admittedly, he was appointed as P.A. to the Honourable Judges, which was a permanent post and carrying a definite pay scale and was promoted thereafter also, as has already been stated supra, his lien to the Tamil Nadu Judicial Ministerial Service was severed and he falls within the disciplinary rules of the Madras High Court and therefore, it cannot be said that the proceedings initiated by the High Court are void ab initio. Thus, rejecting the claim of the delinquent officer, we shall now proceed to examine the charges, findings of the enquiry officer, which culminated in the order of compulsory retirement of the delinquent officer.
17. The crux of the complaint made against the delinquent officer is that by using his official position, he solicited sexual favours from the complainant passing on written slips and disturbed her during midnights by making telephone calls to her residence and thereby outraged her modesty and caused mental torture and agony to In short, the complaint against the delinquent was ”sexual harassment at the place of work ”.
18. It is the case of the complainant that the delinquent-officer, taking advantage of his ”superior” position in the High Court, the work atmosphere and the loan availed by her from the delinquent to tide over the urgent financial crisis, started making tacit expressions and gestures to gain sexual favours from her and forced her to surrender to his sexual The complainant alleged that the delinquent openly stated to her that he very much needed her company to quench his sexual thirst since his wife, because of her health condition, was unfit for cohabitation. It was further alleged that the delinquent, in pursuit of his attempts, passed on several slips in his handwriting to the complainant expressing his sexual desire. It is on the basis of two such slips, containing certain expressions/lyrics written in the handwriting of the delinquent and alleged to be passed on by him to the complainant, the complaint had been filed. It was further alleged that the delinquent disturbed the complainant at odd hours by making frequent telephone calls to her residence and later threatened her with the help of the Police to withdraw the complaint made against him.
19. The delinquent-officer while admitting that the writings found on the two slips in question were written by him, denied the allegation that such writings were intended towards the complainant for getting sexual favours and submitted that he never passed on any slips containing any expression to the His consistent defence was that the slips in question were part of his preparation for submitting the dissertation on the topic  ”Sexual Harassment and Abuse of Girl Child Worker” for his M.L. Degree course. According to the delinquent, since he demanded repayment of the money lent by his wife to the complainant, the complainant, to wreak vengeance against him, had stealthily removed those slips from his office-room and used the same as the basis for her complaint. In making the complaint and pressing the same vigourously, she was instigated and encouraged by a group of employees, who could not digest the accelerated promotions earned by him.
20. The enquiry officer framed five points for determination on the basis of the two charges framed against the delinquent and after giving findings on the five points, ultimately held that the charges framed against the delinquent have been A copy of the enquiry officer’s findings was furnished to the delinquent and he was called upon to submit his representation, if any, on the said findings. The delinquent was also given a personal hearing before the appointing authority. The appointing authority, while rejecting the further representation of the delinquent, accepted the findings of the enquiry officer and ordered to impose the punishment of compulsory retirement from service on the delinquent. The period of suspension undergone by the delinquent was ordered to be treated as ”not on duty” for all purposes.
21. Learned senior counsel for the petitioner-delinquent assailed the findings of the enquiry officer on the ground that the enquiry officer failed to appreciate the evidence in its proper It was argued that the enquiry officer failed to take into consideration the vast discrepancies in the evidence of the complainant and that the complainant had improved her complaint made before the Registrar General which goes to show that she was instigated and encouraged by other staff who bore ill-will against the delinquent because of his quick and successive promotions. It was further argued that it is the complainant’s case that the delinquent started misbehaving with her soon after her deputation, i.e. from December, 1998, and if that were to be true, it is very strange and unbelievable that she ventured to borrow money from the delinquent, ignoring such sexual harassment. This only goes to show that the alleged sexual harassment never took place. The alleged complaint of ”sexual harassment” was made only with a view to get away with the repayment of the amount borrowed by the complainant.
22. Insofar as the two slips in question are concerned, learned senior counsel argued that the enquiry officer had failed to appreciate the fact that such slips were prepared by the delinquent for the purpose of the preparation of the dissertation for L. Degree course. Further, it was argued that at no point of time, the delinquent had handed over any slips expressing his sexual desire. The complainant herself said that the delinquent had passed on several slips with obscene expressions and that she had destroyed all except the said two slips, which establishes clearly the attitude of the complainant to wreck vengeance against the delinquent. Further, there was no identity of the author of those slips, nor was there any indication that the message therein was directed towards the complainant. The learned senior counsel argued that the complainant stealthily removed the slips which were kept in the office-room of the delinquent and used the same against the delinquent. The delinquent is leading a happy married life and there was no necessity for him to solicit sexual favours from anyone much less the complainant.
23. The learned counsel for the complainant submitted that when the delinquent officer has not made any complaint against the conduct of enquiry, like procedural irregularity or lack of opportunity, this Court, sitting under Article 226 of the Constitution of India, cannot act like an appellate Court to re-appreciate the The learned counsel for the complainant relied on a judgment of the Apex Court in APPAREL EXPORT PROMOTION COUNCIL vs. A.K.CHOPRA [(1999) 1 SCC 759], wherein it has been held: ”Regarding the nature of approach that courts should take while dealing with cases of sexual harassment at the place of work of female employees, it is to borne in mind that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her. Any action or gesture, whether directly or by implication, aims at or has the tendency to outrage the modesty of a female employee, must fall under the general concept of the definition of sexual harassment. In a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or the dictionary meaning of the expression  ”molestation . They must examine the entire material to determine the genuineness of the complaint. The statement of the victim must be appreciated in the background of the entire case. Where the evidence of the victim inspires confidence, as is the position in the instant case, the courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the delinquent superior officer is wholly misplaced and mercy has no relevance. It has also been held therein:  ”Findings of disciplinary proceedings should not be treated as one of criminal trial. Courts should examine the broader probabilities of the case and not get swayed by insignificant discrepancies or narrow technicalities. They must examine the entire material to determine the genuineness of the complaint ”
24. There is no quarrel regarding the proposition laid down by the Apex In this context, it is to be mentioned that as against the impugned order passed by the Appointing Authority in this case, no appeal G. Pushkala vs High Court Of Judicature on 20 June, 2007 remedy is available to the delinquent officer and the only remedy available for him is to invoke the jurisdiction of this Court under Article 226 of the Constitution. Further more, in MATHURA PRASAD vs. UNION OF INDIA [(2007) 1 SCC 437, considering the entire case law on the subject of judicial review, the Apex Court has categorically and in no uncertain terms has ruled: ”When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under the sub-rules are required to be strictly followed. A judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review. ”
25. True, sexual harassment, in any form, at workplace must be viewed seriously and culprits should not be allowed to escape from the clutches of law since, to narrate in the words of Justice A.S.Anand, former Chief Justice of India, ‘it humiliates and frustrates a victim of crime when the offender goes unpunished or is let off with a relatively minor punishment as the present system pays no attention to his injured feelings. Imposition of appropriate punishment on the criminal is the response of the courts to the society’s cry for justice.’
26. But, at the same time, it should be kept in mind that a charge of this nature is very easy to make and is very difficult to When a plea is taken of false implication for extraneous reasons, Courts have a duty to make deeper scrutiny of the evidence and decide the acceptability or otherwise of the accusations. Every care has to be taken to separate chaff from the grain. The veracity and genuineness of the complaint should be scrutinised to prevent any misuse of such laudable laws enunciated for the upliftment of the society and for equal rights of people without gender discrimination, by anybody under the garb of ‘sexual harassment’, lest the justice rendering system would become a mockery.
27. In PANDURANG SITARAM BHAGWAT STATE OF MAHARASHTRA [(2005) 9 SCC 44 ], at page 47 the Apex Court has held: ”The approach of the learned trial Judge as noticed supra that ordinarily a lady would not put her character at stake may not be wrong but cannot be applied universally. Each case has to be determined on the touchstone of the factual matrix thereof. The law reports are replete with decisions where charges under Sections 376 and 354 IPC have been found to have been falsely advanced. ”
28. Keeping in mind the above propositions of law laid down by the Apex Court and further since, as has already been adverted to supra that there is no appeal remedy to the delinquent officer as against the impugned order of compulsory retirement inflicted on him with a stigma and the only remedy to him is under Article 226 of the Constitution, we are of the view that in such matters, the Court should be more vigilant in assessing the case so as to render justice, to its true meaning to uphold the majesty of justice and
29. As could be seen from the complaint of the complainant, the delinquent officer is accused of issuing two slips to her, first slip containing English writings as ”I want to kiss on cheeks, chin and lips” and the second slip containing the Tamil scribblings as  ”Jd;gk; neh;ifapy; ahHpirj;J ,d;gk; nrh;f;f khl;lhah gt; ”, the English translation of which, as has been narrated by the Appointing Authority, is  ”Can’t you give me pleasure at times of crisis, by playing .. ”
30. Admittedly, both these slips were in the handwriting of the delinquent officer, but not addressed to the The complainant claims that they were handed over to her by the delinquent officer, for which there is no evidence on record, expressing his illegal and immoral quench towards her. As against the said charge, a strong, cogent, consistent, probable and reliable defence has been raised by the delinquent officer stating that as a student preparing for M.L. Dissertation, he had collected various materials as and when available from various journals and magazines and the materials so collected were written in small slips of papers with an intention to prepare a rough draft subsequently. The materials so collected in various bits of papers were kept in his office table, which had no lock and key and the alleged slips of papers, alleged to have been given to the complainant, were among many bits of papers in which materials have been gathered by him from various sources. When he was preparing his M.L. Dissertation, he found some of the slips being either misplaced /lost and immediately himself along with his colleagues in the Tribunal, including the complainant searched for the said materials. But, they could not be traced. Hence, he gathered the relevant materials once again and submitted his M.L. Dissertation titled ”Child Labour-Exploitation-Preventive Measures and its study indepth ”.
31. The delinquent officer further submits that to emphasise the difference between infatuation and true love, some lines from the poem written by great Tamil poet ”Bharathidasan” and a portion from a novel ‘Payum Oli Nee Enakku’ written by great novelist Janakiram were quoted in one slip from his Further, to highlight the exploitation of women workers despite their non-acceptance for any favour/s, another quotation was written. His further case is that the complainant helped him in typing out his M.L.Dissertation, which was admitted by her in her evidence also, and only to avoid the loan of Rs.10,000/= advanced by his wife, to the complainant, she has pitted the slips, which she has stolen/had possession of against him at the instance of some jealous colleagues, who were unable to bear/digest his frequent promotions.
32. A perusal of the entire materials placed on record would show that the husband of the complainant by name Ganapathy Subramanian was an accused in C.C.No.2056 of 1996 on the file of the Court of VII Metropolitan Magistrate, Madras for an offence under Section 138 of the Negotiable Instruments Act and to bail out her husband from criminal prosecution, the complainant borrowed a sum of Rs.10,000/= from the wife of the delinquent officer, by executing a promissory note dated 14.6.1999, for which D.W.1 was the witness, agreeing to repay the same within three months with interest at 24% p.a. which, according to the complainant, was repaid by her. According to the complainant, at the relevant time, the delinquent officer was misbehaving with her. If there is truth in her contention and complaint, the complainant should not have sought the help of the delinquent officer and received money from his wife. No prudent man would seek the help of anybody, if there is genuine reason to believe that such a person is causing any kind of harassment to him. When such a serious complaint of sexual harassment has been made by the complainant against the delinquent officer, if it is really true, in the firm view of this Court, she should not have approached the delinquent officer, which raises a strong suspicion about the genuineness and veracity of her complaint, which was not erased by the complainant. This aspect also favours the strong and consistent defence raised by the delinquent officer that only to avoid payment of the debt towards him, this false complaint has been lodged by the complainant against him.
33. The Appointing Authority also, in para 11, has observed that the complainant ought not to have approached the delinquent for a loan of Rs.10,000/= even if it was so urgent and necessary to bail out her husband from criminal prosecution since she felt that she was being sexually harassed by the delinquent and was vexed with him and ought not to have attempted at all to borrow any money from him, but has proceeded on wrong footings to found the delinquent guilty of the charges.
34. When such a strong and consistent defence was advanced on the part of the delinquent employee, by examining W.1 also to prove the loan advanced by his wife to the complainant and the subsequent compromise mooted by the complainant herself, but taking a ‘U’ turn on the ground it would tell upon her, further leading to some kind of punishment from the Registry for lodging such a complaint and withdrawing it later, the Enquiry Officer proceeded only on the basis that the writings on Exs.P2 and P.3 were admitted by the delinquent, forgetting the fact to which extent they were admitted. In the light of the above factual matrix of the case on hand, we are unable to appreciate the argument advanced on the part of the complainant that in all such cases of sexual harassment, the defence of the delinquent officer would be that he advanced a loan to the complainant and only to avoid repayment of such loan amount, a false complaint has been lodged by the complainant, since neither the factum of borrowing an amount of Rs.10,000/= from the wife of the delinquent officer nor the execution of the pronote was denied by the complainant. Further, as has already been observed supra, through the evidence of D.W.1 it is clear that the complaint mooted a compromise, but has taken ‘U’ turn on the ground that it may lead to initiation of disciplinary proceedings against her for lodging such a complaint and withdrawing it later. Therefore, the argument advanced on the part of the complainant is rejected.
35. When the slips does not contain anybody’s name or address, much less the name of the complainant and when a strong case has been put up on the part of the delinquent that they were misused by the complainant, who assisted him in preparing his L. Dissertation, to avoid the loan amount, the Enquiry Officer, ought to have considered the matter in depth in proper perspective. The failure on the part of the Enquiry Officer to appreciate the evidence available on record in its proper perspective, led to miscarriage of justice. Though the standard of proof in departmental enquiry proceedings is not as that of in criminal proceedings and it is sufficient to prove the preponderance of probability, since the Enquiry Officer failed to appreciate the entire probabilities of the case from the proper perspective of the cases put up on either side, he has landed in an erroneous conclusion leading to miscarriage of justice, since even the Appointing Authority has taken the findings of the Enquiry Officer as God’s saying in spite of abundant material available on record contra.
36. The delinquent officer marked his Dissertation submitted on ”Child Labour-Exploitation-Preventive Measures and Indepth Study” as D.14 before the Enquiry Officer, which fortifies his defence that he intended the contents in those two slips for his dissertation since Page Nos.12 and 13 of his Dissertation contains the contents of Exs.P.2 and P.3. The same is extracted hereunder:  ”A scene is also available. At factories/Offices/Private Establishments, Officers/employers have this in mind, a sadistic approach to tease the working women. When the working woman is a new recruit, they do this in the garb of helping/giving the training to the work. When they raise a voice or when they resist, they will fly off. Another kind of Officers/employees are also available. With nicety in their words, with utmost begging, chocked with emotion they will beg with the woman folk saying: With permission, I want to kiss on cheeks, chins and lips. If agreeable, please give your hands, if not, excuse me….  ”To get rid of the sexual harassment, among all the things they should be understood to have the variation between sexual harassment, true love and infatuation. This student thinks that youngsters should read good magazines, epics like Ramayana, Mahabharata, Bharathiar songs, novels written by famous writers Kalki, Sivasankari ‘Nandu’, Indumathi’s ‘Tharaiyil Irangum Vimanangal’, Janaki Raman’s ‘Paviyum Oli Nee Yenakku’ and recent one of Adu Oru Nilakalam’. Cinemas also try to exhibit good films, avoiding cheep comedy etc.,… ”
37. While such is the factual position that the contents of P.2 and P.3 are the ingredients of Ex.D.14, a strange finding was recorded by the Enquiry Officer that since because the contents of Ex.P.2 and P.3 find a place in Ex.D14, it cannot be stated that they were not intended to the complainant. The Appointing Authority, in Para No.9 of his order, found that ‘as rightly pointed out by the Enquiry Officer, there is no link between the dissertation submitted by the delinquent and the plea made by him that they were notes prepared for the said purpose, as the dissertation was submitted during August 1999 while the contents of Exs.P2 and P3 are of the month of September/October 1999 during Dasara holidays’. In the light of the above clinching evidence available on record, this Court is unable to appreciate the findings of the Enquiry Officer, which were taken for granted by the Appointing Authority, leading to miscarriage of justice.
38. At this juncture, it is relevant to point out that as could be seen from the Certificate issued by R.Viduthalai, Advocate, 101, New Law Chambers, High Court Madras, who was the guide of the delinquent officer for his Dissertation, the same was dated 29.8.1999. But, the complaint of the complainant is dated 18.2.2000. When such is the factual position, that too in the absence of any date or name of the addressee in Exs.P.2 and P.3, we are unable to appreciate the findings of the Enquiry Officer and the Appointing Authority that Exs.P.2 and P.3 were intended only towards the complainant and they were handed over by the delinquent to the complainant during Dasara Holidays.
39. Furthermore, to the ‘acknowledgements’ annexed to his Dissertation, the delinquent expressed his sincere thanks, among others, to the complainant also, for their constant unstinted encouragement, support and valuable assistance during the course of the said Therefore, it cannot be said the delinquent officer has fraudulently introduced such writings into his Dissertation only to escape from the allegations of the complainant.
40. The Enquiry Officer has not even bothered to look at the defence evidence, which, as said above, is strong, cogent, consistent probable and reliable in
41. The explanation offered on the part of the complainant for delay in lodging the complaint that since she was a probationer, she feared to lodge the complaint, cannot also be appreciated since by the time she lodged the complaint on 2.2000 also, she was a probationer. Further more, there is no restriction or prohibition for any probationer to lodge any such complaint. The other explanation that since the delinquent officer was her superior, he would have impaired the chances of her probation being declared, if she venture to lodge such a complaint against him also cannot be accepted, since, only the Appointing Authority is competent to declare her probation and the delinquent officer or any other officer for that matter has no role to play in such decisions of the Appointing Authority.
42. Regarding the other charge of phone calls made by the delinquent officer during midnights to the complainant, the delinquent officer has replied that under compelling circumstances that too on two or three occasions, he contacted her during daytime that too during holidays requesting repayment of loan advanced by his wife to the complainant and nothing more nothing Even regarding the allegation of the complainant that the delinquent officer had made telephone call to her from Delhi, where he had been on an official duty, a strong case has been put up on the part of the delinquent officer that he instructed her to hand over the computerized speech to the Honourable Chief Justice before lunch. In this context, it is relevant to mention that the delinquent officer has produced materials before this Court in the form of typed set, to show that the then Honourable Chief Justice used to give handwritten material for typing. When such is the position, it is paining to note that the said defence put up by the delinquent officer was not even considered by the Enquiry Officer and without any discussion, he observed on Point No.2 as follows: ”P.W.2 also corroborated the factum of calling P.W.1 by delinquent from Delhi. From the narration of events, it is proved that the delinquent called P.W.1 at her residence over phone on several occasions including a call from Delhi.” The same reasoning would apply to the alleged phone calls made by the delinquent officer to the P.A. Section, where the complainant used to sit. It is on record that there is no much work in the Tribunal where the delinquent officer and the complainant were deputed and hence the complainant used to attend the Courts to take down dictations and she used to sit either in the Personal Secretary’s room or in the P.A. Section. Therefore, it is but probable for the delinquent officer to contact her wherever she is, to leave any instructions imparted to him by the Honourable Chief Justice. This aspect has not at all been considered by the Enquiry Officer and the Appointing Authority. Except the interested ipse dixit of the complainant and her husband, there is nothing on record to substantiate such a serious charge levelled against the delinquent officer.
43. At this point, we feel it appropriate to record the motivated intention of the The complainant lodged her complaint on 18.2.2000, based on which an Official Memorandum was issued to the delinquent officer on 1.3.2000, seeking for his explanation and charges were framed against him on 5.6.2000. Thereafter, on 20.6.2000, the complainant sent another complaint to the Registrar General, High Court, wherein besides giving details in minute, she made allegations against the then Enquiry Officer, who was a senior-most District Judge on other duty as Special Officer of the Vigilance Cell of the High Court, as if he intimidated her and the entire examination by the Enquiry Officer was aimed at bullying her and discrediting her character. The complainant narrated the questions put to her by the then Enquiry Officer. From the said questions alleged to have been put by the Enquiry Officer, we are able to understand that the then Enquiry Officer wanted to apprise himself fully of the matter, which were commented otherwise by the complainant, since she might have thought that her desired goal cannot be achieved. We are prompted to comment so because in the very same complaint, she requested the Registrar General to suspend or atleast transfer the delinquent officer from the High Court, as if otherwise the delinquent will continue to misuse his position as an Officer of the High Court as if the Enquiry Officer was obliged to the delinquent officer, and requested to stay the enquiry until a Committee is constituted as per Visaka judgment of the Apex Court. As already stated supra, the delinquent officer, has no authority to interfere in the enquiry proceedings, which were being conducted by a senior-most District Judge and there was no such complaint also either from the earlier Enquiry Officer or the subsequent Enquiry Officer. This fact would establish that the complainant is destined to go to any extent, to achieve her desired goal. Further more, the said complaint of the complainant, as observed supra, is dated 20.6.2000. The very next day i.e. on 21.6.2000, she filed W.P.No.10157 of 2000 before this Court, without even waiting for the reply from the Registrar General to her complaint dated 20.6.2000.
44. Another aspect this Court wants to point out is that as against the delinquent officer, the complainant lodged a criminal complaint in No.29 of 2001 before the B4 High Court Police for the offences under Sections 294(b) and 506(1) IPC on 7.11.2001. When the said case was called by the VII Metropolitan Magistrate, G.T., Chennai on 25.4.2005, she was not present and there is no representation also for the complainant. Therefore, the FIR was closed as further action dropped. Thereafter, no step was taken by the complainant to pursue her criminal complaint, probably because she has already achieved her desired goal of throwing the delinquent officer from his official position in the departmental proceedings initiated at her initiation on 10.10.2002 itself, on which date the order of compulsory retirement was served on the delinquent officer. The complainant lodged the said criminal complaint on 7.11.2001 during the pendency of the enquiry proceedings, i.e. after 21 months of her complaint to the Registrar General (which was given by her on 8.2.2000), which, in our view, is only to create documentary evidence in her favour so as to be used in the departmental proceedings which shows her motivated intention of achieving her illegal goal of throwing the delinquent officer from his official position. As has already been observed supra, neither the Enquiry Officer nor the Appointing Authority appreciated the materials on record in their proper perspective, resulting in miscarriage of justice.
45. The entire reading of the Enquiry Officer’s Report depicts his pre-concluded mind and trying to supply reasons to substantiate the same, which was approved by the Appointing The entire findings of the Enquiry Officer, which were carried on by the Appointing Authority went on hypothesis and without appreciating the materials placed on record in their proper perspective, leading to miscarriage of justice.
46. In VISHAKA STATE OF RAJASTHAN (1997) 6 SCC 241, the Apex Court has prescribed the guidelines and norms to ensure the prevention of sexual harassment of women and in clause (2) it has been prescribed as follows:

For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

1. physical contact and advances;
2. a demand or request for sexual favours;
3. sexually-coloured remarks;
4. showing pornography;
5. any other unwelcome physical, verbal or non-verbal conduct of sexual

Where any of these acts is committed in circumstances whereunder 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.

47. From the above discussion, we are satisfied that the allegations levelled against the delinquent officer by the complainant in her complaint do not attract any one of the above conditions prescribed by the Apex Court in the above Judgment, to punish the delinquent officer such 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 There is no physical contact and advances made by the delinquent officer towards the complainant and the writings on Exs.P.2 and P.3 cannot be considered as a demand or request for sexual favours as the said material is meant only for inclusion in the Dissertation for his M.L. We find that there are no sexually coloured remarks made against the complainant by the delinquent officer or showing any pornography and any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Therefore, initiation of disciplinary proceedings against the complainant is not at all warranted since no fundamental right of the complainant or her right to live with gender equality enshrined under Articles 14,15,19(1)(g) and 21 of the Constitution is violated. Therefore, we hold, as rightly contended on behalf of the delinquent officer, that the complainant misused Exs.P.2 and P.3, which were in her possession, with ulterior motive to avoid repayment of the loan obtained by her from the wife of the delinquent officer on a promissory note executed by her on 14.6.1999 to get relief to her husband from the criminal case in C.C.No.2056 of 1996 on the file of the Court of VII Metropolitan Magistrate, Madras for the offence under Section 138 of the Negotiable Instruments Act. Therefore, we hold that the framing of charges, conduct of enquiry and passing the impugned order of compulsory retirement on the delinquent officer are all illegal and liable to be quashed. Accordingly, we order that the delinquent officer is entitled to be reinstated into service with all attendant benefits including continuity of service and backwages. Therefore, W.P.No.29024 of 2003 filed by the delinquent officer is entitled to be allowed. In the result, as has already been observed supra, W.P.No.10157 of 2000 filed by the complainant is dismissed as infructuous and W.P.No.29024 of 2003 filed by the delinquent officer is allowed. The delinquent officer is ordered to be reinstated into service with all attendant benefits, with continuity of service and backwages. If, by this time, the delinquent officer attained the age of superannuation, he shall be treated as retired in usual course after attaining the age of superannuation. No costs.

Jai/Rao

To

The Registrar General,

Delhi High Court
Delhi High Court
Neena Shad vs MCD on 2 November, 2010


Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On: 28th September, 2010 Judgment Delivered On: 2nd November, 2010 + W.P.(C) 6423/2010


NEENA SHAD ….. Petitioner
Through: Petitioner in person

versus

MCD ….. Respondent

Through: Mr.Gaurang Kanth and Ms.Biji Rajesh, Advocates, W.P.(C) 6113/2010

DR.SUNIL CHAUDHARY ….. Petitioner

Through: Petitioner in person

versus

MCD & ORS. ….. Respondents

Through: Mr.Gaurang Kanth and Ms.Biji, Rajesh, Advocates

CORAM:

HON’BLE MR. JUSTICE PRADEEP NANDRAJOG

HON’BLE MR. JUSTICE MOOL CHAND GARG

1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J.
4. Between the years 2001-2002 Municipal Corporation of Delhi (hereinafter referred to as “MCD”) appointed 41 doctors as Medical Officers (Ayurveda) on contractual basis, including the petitioners who are married to each other. The relevant portion of the letters containing the terms and conditions of the appointment of said Medical Officers issued by MCD reads as under:-

“….With reference to his/her Walk-in-interview and approval of Commissioner, Municipal Corporation of Delhi, Dr.Neena Shad/Dr.Sunil Chaudhary is hereby given Offer of Appointment to the post of Ayurvedic Vaid on contract basis at a fixed amount of Rs.10,000/- per month initially for a period of six months, or till such time the post is filled up on regular basis through UPSC, whichever is earlier subject to the following terms and conditions:-

The post is purely on contract basis for a period of six months or till such time the post is filled up on regular basis by CED through UPSC, whichever is earlier. The appointment can terminated at any time on either side by giving one month’s notice or by paying one month’s salary without assigning any reason……” (Emphasis Supplied)

2. From time to time, MCD extended the term of appointment of the aforesaid Medical Officers including the petitioners. Remuneration of the said Medical Officers was also enhanced.
3. On 13.07.2007 a complaint was made to the Commissioner MCD by petitioner Neena Shad, who was then posted at Bihari Pur Ayurvedic dispensary, against one Shiv Dayal Kain, Compounder in the said dispensary, inter-alia alleging that she was sexually harassed by the said Compounder. In view of the complaint made by petitioner Neena Shad, Commissioner, MCD directed Dr.Ashok Garg, Chief Medical Officer to investigate into the matter and submit a report in said regard.
4. On 16.07.2007 Dr.Ashok Garg, Chief Medical Officer, submitted a report wherein he opined that Mr.Shiv Dayal Kain be transferred from Bihari Pur dispensary to Ayurvedic dispensary of Swami Dayanand Hospital. He further opined that ‘I found no harassment with MOI/C by the pharmacist. It has come to my notice that both are faulty one or the other issue.’
5. Thereafter one Mr.Shri Ram was appointed as Compounder in Bihari Pur Ayurvedic Dispensary. Petitioner Neena Shad alleged that since the said Compounder was not discharging his duties in a satisfactory manner she went to the office of Chairman, Medical Relief and Public Health Committee on 22.11.2007 to complain about Compounder Shri Ram where she was manhandled by Mr.Prakash Chand Dagar, Peon to the Chairman, while she was waiting to meet the Chairman. The petitioner filed a complaint with Commissioner, MCD regarding the said incident.
6. Considering the problems between petitioner Neena Shad and Compounder Shri Ram, a decision was taken by the higher officials of the Health Department of MCD on 23.11.2007 to transfer the petitioner from Bihari Pur dispensary to Nand Nagari dispensary.
7. On the same date i.e. 23.11.2007 Dr.Vidya Sagar Sharma, who was officiating as DHO (ISM) accompanied by Dr.Ashok Garg, Chief Medical Officer, visited Nand Nagari dispensary to facilitate petitioner Neena Shad in joining the said dispensary. Petitioner Neena Shad alleged that Dr.Vidya Sagar had touched her in a derogatory manner. The police was called on the spot to inquire into the matter.
8. In his defence, Dr.Vidya Sagar stated that on the directions of Chairman, Medical Relief and Public Health Committee he along with Dr.Ashok Garg had gone to Nand Nagari dispensary to facilitate petitioner Neena Shad in joining the said dispensary where petitioner Neena Shad was present along with her husband Dr.Sunil Chaudhary. Petitioner Neena Shad and her husband unnecessarily picked up a fight with him and thereafter called the police and falsely accused him of sexually harassing Neena Shad.
9. An enquiry was conducted into the aforesaid matter by the Office of Deputy Commissioner of Police and a report was submitted in said regard, which report reads as under:- “Allegations leveled by the Complainant against her Senior Doctor Vidya Sagar Sharma and Dr.Ashok Garg are uncalled for as the entire episode took place in public where her husband was also present. Allegations of molestation/Indecent behavior are false, baseless and motivated.”

• Thereafter petitioner Neena Shad filed a complaint against Dr.Vidya Sagar before Commissioner, MCD. In terms of the directions issued by Supreme Court in the decision reported as Vishaka v State of Rajasthan (1997) 6 SCC 241, Commissioner, MCD referred the afore-noted two complaints filed by petitioner Neena Shad against Prakash Chand Dagar and Dr. Vidya Sagar respectively to Sexual Harassment Complaints Committee (hereinafter referred to as “Committee”) comprising of following members:- (i) Ms.Meera Akolia, Municipal Secretary, MCD; (ii) Mr.P.K. Gupta, Director (Printing & Stationary), MCD; (iii) Dr.Vireshwar, Chief Medical Officer, Town Hall Dispensary, MCD; (iv) Ms.Meenakshi Sobti, P.R.O., Kasturba Hospital and (v) Ms.Aparna Bhat, NGO Member.
• During the pendency of proceedings of Sexual Harassment Complaints Committee, a report was submitted by Dr.M.L. Khatri, DHO (ISM) in March 2008 regarding the conduct of petitioner Neena Shad, the relevant portion whereof reads as under:-

“Dr.Neena Shad is working as Medical Officer (Ay.) on contract basis since 2001 and presently posted at Ay. Dispensary Nand Nagri. During her stay in various dispensaries her behavior towards with junior and subordinate staff was not found satisfactory. It came into notice that the officer who asked for her punctuality and behave properly to juniors, she always leveled allegations of sexual harassment upon everyone. It has happened with previous DHO Dr.V.P. Kanoji and the junior staff who worked/working under her supervision in a awful situation which is created by her for her own interest. It is pertinent to say that during last year Deptt. made so many transfers of pharmacists but none of them was interested to work under her with the fear of leveling false sexual harassment charges….” (Emphasis Supplied)

• The first hearing of the Committee took place on 15.05.2008. In the said hearing, the notices for appearance before Committee were issued to the petitioners, Ms.Sudesh Kumari, Ms.Renu Gill, Dr.Vidya Sagar Sharma and Dr.Ashok Garg. The hearing was adjourned to 22.05.2008.
• On the next hearing i.e. 22.05.2008 Dr.M.L. Khatri, DHO (ISM), informed the Committee that the notices for hearing could not be served upon the petitioners. Regarding the non- service of notices to the petitioners, Dr.M.L. Khatri stated before the Committee that when contacted over telephone regarding the service of the notices the petitioners stated that they will personally collect the notices from the office but they did not come to the office. In view of non-service of notices to the petitioners, the Committee decided that the notices for appearance be delivered in the respective dispensaries where the petitioners are working and waited for the status of service of notices.
• In the meantime, witnesses; Dr.Vidya Sagar, Dr.Ashok Garg, Ms.Renu Gill and Ms.Sudesh Kumari were examined.
• Vidya Sagar reiterated the defence taken by him before the police. Dr.Ashok Garg duly corroborated the statement of Dr.Vidya Sagar and firmly denied that any incident of sexual harassment had taken place on 23.11.2007 as alleged by petitioner Neena Shad.
• Renu Gill who had worked as ANM with petitioner Neena Shad for a period of over two months stated that petitioner Neena Shad used to cry for no reason and pick up fights with other members of staff. That husband of Neena Shad used to accompany her to the dispensary and attend patients even though he was posted at another dispensary. That Neena Shad used to come to the dispensary late, take away the attendance register of the dispensary to her residence and bring her child to the dispensary every day. That she had sought the transfer from the dispensary in question due to the behavior of Neena Shad.
• Sudesh Kumari who was posted as Compounder in Nand Nagari dispensary stated that Neena Shad used to cry easily and pick up fights with people. Regarding incident of sexual harassment, she stated that Dr.Vidya Sagar had no occasion to touch Neena Shad.
• Regarding the service of notice to petitioner Neena Shad, the pharmacist in Nand Nagari dispensary informed the Committee that Neena Shad had left the Committee around noon stating that she was going to the office for some work. Regarding the service of notice to petitioner Sunil Chaudhary, the petitioner was not found present in the dispensary at the time when the dispatch rider reached there. Mr.Keshav Das, Compunder refused to receive the notice and stated that Dr.Sunil Chaudhary had left the office to collect the notice personally, which statement was found to be untrue by the Committee.
• At about 04.00 P.M. one Keshav Dass, Compounder came in the office of Committee to collect the notice of Dr.Sunil Chaudhary. When questioned by the members of the Committee, he informed that Dr.Sunil Choudhary had sent him to collect the notice. When further inquiries were made from Keshav Dass he feigned fainting. The members of the Committee were of the view that Keshav Dass was under the tremendous influence of Dr.Sunil Chaudhary and feared his wrath.
• In the meantime, the Committee sent the dispatch rider to the residence of the petitioners to serve the notices where the petitioners treated him very badly. First the petitioners refused to receive the notices falsely stating that they do not reside there. When the dispatch rider insisted upon serving the notices, the petitioners seized the keys of the motorcycle of the dispatch rider whereupon the police was called. It was only upon the intervention of the police that the petitioners returned the keys to the dispatch rider.
• In view of the afore-noted uncooperative and obstructive behavior of petitioner Neena Shad, the Committee chose not to give any further opportunity to her to present her case before the Committee and submitted its report inter-alia opining that the allegations of sexual harassment leveled by petitioner Neena Shad against Dr.Vidya Sagar and Mr.Prakash Chand Dagar are false and baseless. The relevant portion of the report of the Committee reads as under:- “CONCLUDING COMMENTS

This is one of the strangest cases that the Committee has received. The Complaints Committee on Sexual Harassment was set up to provide speedy redressal to the victims of sexual harassment. The Committee comprises of Senior Officers of MCD and the complaints are heard on priority basis to ensure that women are not harassed. However, the present case seems to be a case of total abuse of this fora. The Committee takes strong objection to the conduct of the complainant due to the following reasons:

a Although she was given a hearing of over 2 hours on the first day of hearing totally

uninterrupted, the complainant chose to call the Chairperson of the Committee late at night to discuss the case and she had to be firmly told to refrain from making those calls;

1. The cross examination was fixed to facilitate the hearing. The complainant was advised that she would be intimated about the date and she should appear before the Committee. However, not only did she not appear, she misbehaved with the Dispatch Rider specially sent to her residence by calling the police. This incident also subjected senior officials of the MCD to harassment and humiliation late into the night;
2. After having got the notice, Dr.Shad feigned the illness by stating that both she and her husband have taken ill and cannot before the Committee;
3. The Complainant had made allegations against a Peon in the office of Chairman, MRPH Committee, a compounder, Shiv Dayal and Dr.Vidya Sagar Sharma. However, before the Committee she first stated that she does not want to pursue against the Peon and Shiv Dayal. She then changed her statement and stated that she would like to think about it. She has not intimate the Committee till about her decision;
4. When the Committee tried to contact her at the dispensary during working hours, she was found absent from the dispensary. She had not taken permission to leave the dispensary during working hours. She had informed her pharmacist that she was going out on official work and misled her;
5. Dr.Vidya Sagar in his statement before the Committee also brought to the attention of the Committee the manner in which the complainant along with her husband had threatened other staff by calling the police, going to their houses with hooligans etc. The Committee had looked at the file containing these complaints and is surprised as to why no action was taken by the department…..

The Committee’s responsibility is only to look into the merits of the allegations of sexual harassment. However, due to the shocking conduct of the complainant, her husband Dr.Sunil Chaudhary and certain other persons of the Health Department, the Committee is constrained to make the following observations.

1. The doctor couple seem to have terrorized the department as the DHO, (ISM) Dr.M.L.Khatri, the pharmacists and other staff was visibly scared of them;
2. The administration of the DHO (ISM) is very weak. Although he was aware about the conduct of both the doctors and their indiscipline, he allowed them to go scot free;
3. The complainant herself has shown highly insubordinate behavior. She had herself admitted that she had questioned Dr.Vidya Sagar why he visited her dispensary. She never marked her attendance at the hospital, refused to receive the notices sent by this Committee. She also did not respect the hierarchy. She went above the departmental officers directly to the Commissioner and when it suited her also met the Chairman for routine administration matters;

RECOMMENDATIONS:

The Committee makes the following recommendations.

1. The present complaint of sexual harassment is rejected as there is no merit in the complaint;
2. Contract staff should not be given independent charge of the dispensaries.
3. Strict disciplinary action is recommended against both Dr.Neena Shad and Dr.Sunil Chaudhary for abusing the process of law, taking law onto their own hands and showing total disregard to the committee as well as other Senior Officers of their department;” (Emphasis Supplied)

• In view of the recommendations contained in the afore- noted report of the Committee, Commissioner MCD took a decision on 17.06.2008 not to continue with the engagement of the petitioners with MCD as both of them were a nuisance and no subordinate person was ready to work at the dispensary where they could be posted.
• On 15.07.2008 an Office Order was issued by MCD extending the term of appointment of 35 out 39 Medical Officers who were similarly placed as the petitioners. The extensions could not be granted to 4 Medical Officers due to the fact that DHO (ISM) did not forward their Performance Appraisals to the concerned authority.
• On 03.07.2008 Office Order(s) were issued by MCD dispensing with the services of the petitioners. The said Office Order(s) reads as under:-

“Dr.Sunil Choudhary/Neena Shad was employed in MCD on contract basis as Medical Officer (Ayurveda). His/her period of contract has expired on 07.05.2008. The Competent Authority has not approved his/her re-engagement and hence, he/she is no more in Municipal services. This issues with the prior approval of the Competent Authority.”

• On 01.08.2008 Office Order(s) were issued by MCD granting extensions to 4 Medical Officers who were not granted extensions earlier due to non-receipt of their Performance Appraisals as also to 26 Medical Officers who were junior to the petitioners.
• Aggrieved by the Office Order dated 03.07.2008 issued by MCD, petitioner Neena Shad filed a writ petition bearing under Articles 226 and 227 of Constitution of India before this Court. At this juncture, it would be most apposite to note some of the averments made by the petitioner in the said petition:-

“1. That your humble Petitioner is aggrieved by the letter/order no 378/ADC (H)/2008 dated 03-07-2008 in which the services of the petitioner was removed on the pretext that the competent authority has no approved her re-engagement and hence she is no more in Municipal Services. While other persons who are junior and the senior from the petitioner still working with the respondents…..

15. That it is submitted that the said posts are still not filled by the Union Public Service Commission and the other persons who was employed with the petitioner is still working with the respondents. ….
16. That it is submitted that the respondent twice appointed on the contract basis approx. 35 doctors with the same conditions as the same applied in the case of the petitioner.
17. That the services of the petitioner removed with no reason and except that the authorities did not extend the contract period. No reason has been assigned why the period of the petitioner and her husband have not been extended out of the

D BECAUSE the services of the petitioner was terminated on the basis of pick and choose; E BECAUSE no reason has been assigned why only the petitioner and her husbandâ s services were terminated/not extended while other persons are still working with the respondent;

F BECAUSE there were other person/doctors who are either junior or senior to the petitioner is still working with the respondents;

G BECAUSE the impugned order is the violation of Article 14 and 21 of Constitution of India; …..” (Emphasis Supplied)

• Vide order dated 26.09.2008 this Court dismissed the said writ petition on the ground that a contractual appointment does not confer any legal right upon the holder of such a post and it is the prerogative of the employer to allow the contractual appointee to continue him in service and the court cannot interfere if such a discretion exercised is by the employer unless the discretion is found to be vitiated by mala fide or extraneous considerations.
• Aggrieved by the order dated 26.09.2008 passed by this Court, petitioner Neena Shad filed letters patent appeal before a Division Bench of this Court, which appeal was dismissed vide order dated 24.10.2008.
• Thereafter petitioner Neena Shad filed another writ petition bearing No.11791/2009 under Articles 226 and 227 of Constitution of India before this Court inter-alia highlighting that MCD had meted out a most discriminatory treatment to her by extending the term of appointment of all the 39 Medical Officers who were similarly placed as the petitioners including the four Medical Officers who were not given extension in the first instance as also of 26 Medical Officers who were junior to the petitioners, which petition stood transferred to Principal Bench, Central Administrative Tribunal, New Delhi for adjudication.
• Vide impugned judgment and order dated 28.04.2010, the Tribunal dismissed the petition filed by petitioner Neena Shad on the ground that even though facts and circumstances of the case do suggest that a discriminatory treatment was meted out to petitioner Neena Shad, she is not entitled to any relief in view of the fact that the present application is based on the same cause of action as the Writ Petition No.11791/2009 filed by Neena Shad before this Court, which petition stood dismissed by this Court. The relevant portion of the impugned judgment is being noted herein under:-

“5. Pursuant to notice issued by this Tribunal, the respondent has entered appearance and filed its reply contesting the claim of the applicant. It is significant to mention that on the basic facts with regard to employment of the applicant and her husband on contractual basis, the dates of their employment, and employment of others along with the applicant on same terms and conditions, there is no dispute at all. There is no dispute either with regard to 26 doctors being appointed after appointment of the applicant on same terms and conditions. The applicant, the basic facts as mentioned above, contends that she and her husband have been discriminated. There are hardly any arguments by the learned counsel representing the respondent to counter the plea raised by the respondent………

9. Having heard the applicant and Shri Bhardwaj, learned counsel representing the respondent, we are of the view that even though, the applicant may appear to have a case of discriminatory treatment meted out to her, but because of her filing writ petition for the same relief and on the plea of discrimination as well, it would be difficult to give any relief to her. We are of the firm view that the pleadings with regard to discrimination meted out to the applicant were indeed made in the earlier writ petition filed by her and the relief asked for, in any case, was the same as has been asked for in the present Application. The mere fact that nothing with regard to discrimination came to be referred to by the learned single Judge who dismissed the petition, may not entitle the applicant to file fresh petition for the same cause of action. Even though, as mentioned above, the plea of the applicant is based upon discrimination, the same did not come to be referred to or discussed, but once, it was taken, the applicant ought to have stressed upon the same, and if yet aggrieved, she could seek remedies like review or appeal against the orders passed by the learned single Judge/Division Bench, but fresh petition on the same plea would be impermissible. We are conscious that by virtue of provisions contained in Section 22 of the Act of 1985, the Tribunal is not bound by the procedure laid down in the Code of Civil Procedure, but, at the same time, as per the provisions contained in the same very section, it shall be guided by the principles of natural justice. Provisions contained in Section 11 CPC are in fact based upon the principle of natural justice that no one can be vexed twice for the same cause of action. Even if, therefore, provisions of Section 11 CPC may not be strictly applicable in the present case, principles of natural justice would come in the way of the applicant in asking for any relief having already lost her cause up to the Division Bench of the Hon’ble High Court of Delhi.
10. In view of the discussion made above, even though, prima facie it appears that the applicant may have a case for retention in service on the ground of discriminatory treatment meted to her, we are unable to grant any relief to her. The applicant appears to have chosen a wrong cause of action. As mentioned above, in our view, her remedy lay in requesting the Honâ ble High Court for review or else, approach the Honâ ble Supreme Court for the relief. Second petition on the same ground for the same relief cannot be entertained. The same is thus dismissed. There shall, however, be no order as to costs.” (Emphasis Supplied)

• After the dismissal of the application filed by petitioner Neena Shad, her husband Sunil Choudhary filed an application under Section 19, Administrative Tribunals Act, 1985 before the Tribunal inter-alia taking the same grounds as taken by petitioner Neena Shad in her application.
• Vide impugned judgment dated 02.07.2010, the Tribunal dismissed the application filed by petitioner Sunil Choudhary on the ground that the same is barred by limitation in view of Section 21 of Administrative Tribunals Act, 1985 which provides that an application should be filed before the Tribunal within a year of passing of final order by the concerned authority. It was held by the Tribunal that the cause of action for filing the present application arose on 03.07.2008 when MCD issued the office order dispensing with the services of the petitioner, which is a final order within the meaning of Section 20 of Administrative Tribunals Act, 1985 and thus petitioner ought to have filed the application on or before 02.07.2009 whereas he filed the same in the year 2010.
• Aggrieved by the judgment dated 02.07.2010 passed by the Tribunal, petitioner Sunil Choudhary filed a review application before the Tribunal on the ground that the office order dated 03.07.2008 issued by MCD was not a final order within the meaning of Section 20 of Administrative Tribunals Act, 1985 inasmuch as a representation dated 28.01.2009 was filed by the petitioner against the said office order and the same was not considered by MCD.
• Vide order dated 11.08.2010, the Tribunal dismissed the aforesaid review application filed by petitioner Sunil Choudhary on the ground that the petitioner has not been able to demonstrate that there was an error apparent on the face of the record in the judgment dated 02.07.2010 passed by the Tribunal.
• Aggrieved by the judgments dated 28.04.2010 and 02.07.2010 and the order dated 11.08.2010 passed by the Tribunal, the petitioners have filed the above-captioned petitions under Articles 226 and 227 of Constitution of India.
• During the hearing of the above captioned petitions, the petitioners, who appeared in person, advanced following 3 submissions:-

A That being ‘State’ within the meaning of Article 12 of Constitution of India, MCD is expected not only to act fairly but also reasonably and bona fide. By extending term of appointment of the Medical Officers who were similarly placed as the petitioners as also of the Medical Officers who were juniors to the petitioners and denying similar benefit to the petitioners MCD has meted out a most discriminatory treatment to the petitioners and thereby committed a serious violation of Articles 14 and 16 of Constitution of India. Having found that MCD had meted out a discriminatory treatment to petitioner Neena Shad, the Tribunal committed an illegality in dismissing the application filed by her on a technical ground.

B That on a proper construction Office Order dated 03.07.2008 issued by MCD amounts to termination of the services of the petitioners and therefore MCD ought to have held an inquiry in terms of Article 311 (2) of Constitution of India before issuing Office Order.

C That while adjudicating the present matter(s) this Court should not draw an adverse inference against the petitioners from the facts pertaining to lodging of complaints of sexual harassment by petitioner Neena Shad for MCD had not brought said facts to the notice of the Tribunal.

• In addition to the above, petitioner Sunil Chaudhary argued that the Tribunal committed an error in holding that Office Order dated 03.07.2008 issued by MCD was a final order within the meaning of Section 20 of Administrative Tribunals Act, 1985 and computing limitation period for filing the application by petitioner Sunil Choudhary before the Tribunal on the said basis.
• What is the limitation period for filing an application under Section 19 of Administrative Tribunals Act, 1985 before the Tribunal?
• The answer to the aforesaid question lies in Sections 20 and 21 of Administrative Tribunals Act, 1985, which read as under:-

“20. Application not to be admitted unless other remedies exhausted.–(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.

(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,–

(a) if a final order has been made by Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or

(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.

(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial.”

“21. Limitation.–(1) A Tribunal shall not admit an application,–

(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;

(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in sub- section (1), where-

(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal become exercisable under this Act in respect of the matter to which such order relates; and

(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b) of sub-section (1) or within a period of six months from the said date, whichever period expires later.

(3) Notwithstanding anything contained in sub- section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1), or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.”

• A cumulative reading of Sections 20 and 21 of Administrative Tribunals Act, 1985 shows that (i) in cases where an appeal has been preferred or representation has been made by an aggrieved person in respect of his grievance and an order has been passed by the competent authority rejecting such appeal or representation, the limitation period for filing an application before the Tribunal is one year from the date of passing of such order by the competent authority; (ii) in cases where an appeal has been preferred or representation has been made by an aggrieved person in respect of his grievance and no order has been passed by the competent authority within the period of six months from the date when such appeal was preferred or representation was made, the limitation period for filing an application before the Tribunal is one year from the date of expiry of aforesaid six months.
• The idea behind enactment of Sections 20 and 21 of Administrative Act, 1985 is obvious. The Courts would get clogged in case an aggrieved person is compelled to approach the court immediately upon a wrong being done. It is for this reason provision is made that an aggrieved person must first ventilate his grievance before competent authority by filing a representation and should approach the court on rejection or non-consideration of his representation.
• In the instant case, a categorical averment was made by petitioner Sunil Choudhary in his review application that he had made a representation dated 28.01.2009 against the Office Order dated 03.07.2008 passed by MCD; that no order was passed by the competent authority in respect of his representation and that inadvertently he could not file the said representation along with the original application filed by him before the Tribunal.
• Having regard to the facts that the original application filed by petitioner Sunil Choudhary before the Tribunal was drafted and prosecuted by the petitioner himself and that the petitioner is a layman who is not aware of the legal nuances, a liberal view of the matter ought to have been taken by the Tribunal and the non-filing of representation dated 28.01.2009 by the petitioner along with the original application should have been excused.
• Be that as it may, petitioner Sunil Choudhary made his representation on 28.01.2009. No order was passed by the competent authority in respect of said representation till 27.07.2009 i.e. period of six months from the date of making of representation by the petitioner. Keeping in view the provisions of Sections 20 and 21 of Administrative Tribunals Act, 1985 limitation period available to petitioner Sunil Choudhary for filing an application before the Tribunal was one year from 27.07.2009 i.e. expiry of period of six months from the date of making of representation by the petitioner. The original application was filed by petitioner Sunil Choudhary before the Tribunal on 25.05.2010, thus well within the limitation period prescribed under Section 21 of Administrative Tribunals Act, 1985. Thus, the Tribunal was wrong in holding that the application filed by petitioner Sunil Chaudhary was barred by limitation.
• Having found that the application filed by petitioner Sunil Chaudhary was not barred by limitation, the option available to us is to remand the application to the Tribunal for adjudication on merits. However, in view of the fact that the grievances raised by petitioners Sunil Chaudhary and Neena Shad are identical and we are dealing with the matter of petitioner Neena Shad, we deem it fit to adjudicate the matter of petitioner Sunil Chaudhary as well.
• What is a “cause of action”?
• Cause of action has been explained or defined by different judges in different opinions. Language may vary but content of each decision is that a cause of action is a factual situation, the existence of which, entitles one person to obtain from the other a remedy from the court of law. Contours of cause of action mean every fact, which, if traversed, would be necessary for the plaintiff to prove in order to obtain a decree.
• Are the earlier writ petition filed by petitioner Neena Shad before this Court and the subsequent petition filed by her before this Court and transferred to Tribunal based on same cause of action as held by the Tribunal?
• A close reading of the averments made in the two petitions and a comparison thereof with each other shows that the answer to the above question is indeed YES. While in the first petition, petitioner Neena Shad briefly touched upon the fact that MCD meted out a discriminatory treatment by issuing Office Order dated 03.07.2008 dispensing with her services (see the averments made in the first petition, noted by us in para 26 above), she elaborated the allegations of discriminatory treatment in the second petition by stressing upon the fact that MCD had extended term of appointment of 4 Medical Officers who were not granted extensions in the first instance as also of 26 Medical Officers who were junior to her and further attempted to substantiate the same by annexing Office Orders issued by MCD in respect of grant of extensions to said 30 Medical Officers. Thus, there was only a change in the content of both the petitions while the cause of action remained the same i.e. issuance of Office Order dated 03.07.2008 by MCD dispensing with the services of petitioner Neena Shad. If some evidence came to be possessed by Neena Shad in support of allegations of discriminatory treatment meted out to her by MCD after the dismissal of the first petition or if she was aggrieved by the fact that this Court did not deal with the said allegations while dismissing the first petition the remedies available to her was to either file a review application before this Court or challenge the order of this Court before superior Court. It was not permissible to petitioner Neena Shad to file a fresh petition on the same cause of action by changing the content of the petition from the first petition.
• Whether MCD was required to hold an inquiry in terms of Article 311(2) of Constitution of India before issuing Office Order(s) dated 03.07.2008 dispensing with the services of the petitioners?
• Part XIV of Constitution of India deals with “Services under the Union & the States”. Articles 310 and 311 contained under the said part read as under:-

“310. Tenure of office of persons serving the Union or a State.–(1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.

(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor of the State, any contract under which a person, not being a member of a defence service or of an all-India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor , as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.”

“311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.–(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

 [(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.”

• What is the extent of protection available to the government servants under Article 311?
• Clause (1) of Article 311 is quite explicit and hardly requires any discussion. The scope and the ambit of clause (1) is that government servants are entitled to the judgment of the authority by which they were appointed or some authority superior to that authority and that they should not be dismissed or removed by a lesser authority in whose judgment they may not have the same faith. The underlying idea obviously is that a provision like this will ensure to them a certain amount of security of tenure. Clause (2) protects government servants against being dismissed or removed or reduced in rank without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. It is to be noted that in clause (1) the words “dismissed” and “removed” have been used while in clause (2) the words “dismissed” “removed” and “reduced in rank” have been used.
• What is meant by the expressions “dismissed”, “removed” and “reduced in rank” occurring in Article 311(2)?
• This aspect of the matter was examined in great detail by Supreme Court in the decision reported as Parshotam Lal Dhingra v Union of India 1958 SCR 828. After tracing the history of service rules, Supreme Court observed as under:- “It follows from the above discussion that both at the date of the commencement of the 1935 Act and of our Constitution the words “dismissed”, “removed” and “reduced in rank”, as used in the service rules, were well understood as signifying or denoting the three major punishments which could be inflicted on government servants. The protection given by the rules to the government servants against dismissal, removal or reduction in rank, which could not be enforced by action, was incorporated in sub-sections (1) and (2) of Section 240 to give them a statutory protection by indicating a procedure which had to be followed before the punishments of dismissal, removal or reduction in rank could be imposed on them and which could be enforced in law. These protections have now been incorporated in Article 311 of our Constitution. The effect of Section 240 of the 1935 Act reproduced in Articles 310 and 311, as explained by this Court in S.A. Venkataraman v. Union of India 25 has been to impose a fetter on the right of the government to inflict the several punishments therein mentioned. Thus under Article 311(1) the punishments of dismissal, or removal cannot be inflicted by an authority subordinate to that by which the servant was appointed and under Article 311(2) the punishments of dismissal, removal and reduction in rank cannot be meted out to the government servant without giving him a reasonable opportunity to defend himself. The principle embodied in Article 310(1) that the government servants hold office during the pleasure of the President or the Governor, as the case may be, is qualified by the provisions of Article 311 which give protection to the government servants. The net result is that it is only in those cases where the government intends to inflict those three forms of punishments that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore, that if the termination of service is sought to be brought about otherwise than by way of punishment, then the government servant whose service is so terminated cannot claim the protection of Article 311(2) and the decisions cited before us and referred to above, insofar as they lay down that principle, must be held to be rightly decided.” (Emphasis Supplied)
• There are different species of government service. The strength of a service or a part of a service sanctioned as a separate unit is, in the Fundamental Rules, Section 3, Chapter II, Rule 9(4), called the cadre. Each cadre consists of a certain number of posts. According to Rule 9(22) of the Fundamental Rules, a permanent post means a post carrying a definite rate of pay sanctioned without limit of time. Due to rush of work or other exigencies some “temporary posts” are often created. A temporary post is defined in Rule 9(30) to mean a post carrying a definite rate of pay sanctioned for a limited time. These temporary posts are very often outside the cadre and are usually for one year and are renewed from year to year, although some of them may be created for a certain specified period. The conditions of service of a government servant appointed to a post, permanent or temporary, are regulated by the terms of the contract of employment, express or implied, and subject thereto, by the rules applicable to the members of the particular service.
• Article 311 does not make any distinction between permanent and temporary members of service or between persons holding permanent or temporary posts in the matter of their tenure. The protection envisaged in Article 311 is equally available to both the classes of government servants.
• The appointment of a government servant to a permanent post may be substantive or on probation or on an officiating basis.
• A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a “lien” on the post. This “lien” is defined in Fundamental Rule Section 3, Chapter II Rule 9(13) as the title of a government servant to hold substantively a permanent post, including a tenure post, to which he has been appointed substantively. The Government cannot terminate his service unless it is entitled to do so (1) by virtue of a special term of the contract of employment, e.g., by giving the requisite notice provided by the contract, or (2) by the rules governing the conditions of his service, e.g., on attainment of the age of superannuation prescribed by the rules, or on the fulfillment of the conditions for compulsory retirement or on abolition of post or on being found guilty of misconduct, inefficiency, indiscipline or any other disqualification.
• Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant’s rights and brings about a premature end of his employment.
• An appointment to a permanent post in government service on probation means, as in the case of a person appointed by a private employer, that the servant so appointed is taken on trial. The period of probation may in some cases be for a fixed period, e.g., for six months or for one year or it may be expressed simply as “on probation” without any specification of any period. Such an employment on probation, under the ordinary law of master and servant, comes to an end if during or at the end of the probation the servant so appointed on trial is found unsuitable and his service is terminated by a notice.
• An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post. Such an officiating appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or on a substantive appointment being made to that permanent post in the latter case or on the service of a notice of termination as agreed upon or as may be reasonable under the ordinary law.
• It is, therefore, quite clear that appointment to a permanent post in a government service, either on probation or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case of an appointment to a permanent post in a government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time.
• Likewise an appointment to a temporary post in a government service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period. In such a case the servant so appointed acquires a right to his tenure for that period which cannot be put an end to unless there is a special contract entitling the employer to do so on giving the requisite notice or the person so appointed is, on enquiry held on due notice to the servant and after giving him a reasonable opportunity to defend himself, found guilty of misconduct, negligence, inefficiency or any other disqualification.
• To put it simply, the principle is that when a servant has right to a post either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on officiating basis, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment.
• It does not, however, follow that, except in the two cases mentioned above, in all other cases, termination of service of a government servant who has no right to his post. e.g., where he was appointed to a post, temporary or permanent, either on probation or on officiating basis, the termination cannot, in any circumstance, be a dismissal or removal from service by way of punishment. Cases may arise where the government may find a servant unsuitable for the post on account of misconduct, negligence, inefficiency or other disqualification. If such a servant was appointed to a post, permanent or temporary, either on probation or on officiating basis, then the very transitory character of the employment implies that the employment was terminable at any time on reasonable notice given by the Government. In such cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment, express or implied, or under the rules regulating the conditions of service, if any be applicable, and ordinarily in such a situation the Government will take this course. But the Government may take the view that a simpliciter termination of service is not enough and that the conduct of the servant has been such that he deserves a punishment entailing penal consequences. In such a case the Government may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal or removal carrying with it the penal consequences. In such a case the servant will be entitled to the protection of Article 311 of Constitution of India for the reason the same puts an indelible stigma on the officer affecting his future career.
• In order to determine whether an order terminating the service of a government servant amounts to punishment following two tests needs to be applied namely, (1) whether the servant had a right to the post, or (2) whether he has been visited with penal consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a punishment. π
• Sometimes due to rush of work or other exigencies of service the government makes contractual appointments. Such appointments are made in respect of non-sanctioned posts and de-hors the recruitment rules. A person appointed on contractual basis does not enjoy the protection of Article 311(2) for the simple reason he is not member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State. (See the decision of Supreme Court reported as Union Public Service Commission v Girish Jayanti Lal Vaghela (2006) 2 SCC 482)
• But the ‘State’ is expected to act fairly, reasonably and non-arbitrarily even in contractual matters. (See the decision of Supreme Court reported as Ramana Dayaram Shetty v International Airport Authority of India (1979) 3 SCC 489). Therefore, in the matters of termination of contractual employment by the government, the courts are under a duty to ensure that the government has not acted in an arbitrary and whimsical manner.
• \Whether MCD had acted fairly, reasonable and non- arbitrarily while issuing Office Order dated 03.07.2008 dispensing with the services of the petitioners?
• The facts noted by us in paras 3 to 21 are startling and speaks for themselves. The aforesaid facts show that petitioner Neena Shad was a nuisance at her workplace. She was in the habit of leveling false charges of sexual harassment against her colleagues as also seniors. As many as three complaints leveling sexual harassment allegations were filed by Neena Shad but not even an iota of truth was found in any of the said complaints by the Committee. Such was the terror of Neena Shad that no male pharmacist was ready to work under her lest she would level sexual harassment allegations against him. (See the report submitted by Dr. M.L. Khatri, DHO (ISM), contents whereof have been noted in para 11 above).
• The aforesaid facts further show that the conduct of petitioner at her workplace was not unsatisfactory. She used to cry easily, unnecessarily pick up fights with people and trouble her subordinates. Not only that, she was not punctual and undisciplined. (See the depositions of Ms.Renu Gill and Ms.Sudesh Kumari before the Committee, contents whereof have been noted in para 16 and 17 above).
• The conduct of petitioner Neena Shad before the Committee was deplorable. She adopted a most uncooperative and obstructive attitude with the Committee.
• As regards petitioner Sunil Chaudhary, aforesaid facts show that he actively assisted petitioner Neena Shad in creating nuisance at her workplace. Petitioner Sunil Chaudhary picked up a fight with Dr.Vidya Sagar Sharma and thereby he and petitioner Neena Shad foisted a false case of sexual harassment against him. He also adopted a most uncooperative and obstructive attitude with the Committee. He terrorized Keshav Dass into stating lies before the Committee. He along with petitioner Neena Shad misbehaved with the dispatch rider.
• In view of aforesaid conduct of the petitioners, the petitioners were perfectly justified in dispensing with the services of the petitioners. No fault can be found in the decision of MCD of issuing Office Order dated 03.07.2008 and dispensing with the services of the petitioners. The observations made by the Tribunal in the petition pertaining to Neena Shad that there is prima facie proof of her being discriminated are wrong and are the result of not perusing the record maintained by the MCD in which decision was taken not to extend the contractual appointment of the petitioners.
• As regards submission C advanced by the petitioners, suffice would it be to state that it is no doubt true that the Municipal Corporation of Delhi has not pleaded facts to justify non-continuation of the contractual services of the petitioners, but it is settled law that a writ court can call for the record and treat the production of the record as the response to the Rule when the action pertains to the issuance of a writ of certiorari.
• In view of above discussion, the above captioned writ petitions are dismissed, but without any orders as to costs.

PRADEEP NANDRAJOG, J. MOOL CHAND GARG, J. November 02, 2010
mm

Dr.Suman Dhanda vs Kurukshetra University, … on 4 January, 2011


Punjab-Haryana High Court
Punjab-Haryana High Court

Civil Writ Petition No.22260 of 2010 :1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Date of Decision: January 04, 2011

Dr.Suman Dhanda
…Petitioner
VERSUS

Kurukshetra University, Kurukshetra & others …Respondents


CORAM: HON’BLE MR.JUSTICE RANJIT SINGH


1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in the Digest? Present: Mr.V.K.Sachdeva, Advocate, for the petitioner.
*****
RANJIT SINGH, J.

The petitioner is serving as an Assistant Professor, Department of Biochemistry at Kurukshetra University, Kurukshetra. The petitioner complains that she was harassed at work place by the Chairman of the Department of Biochemistry. As per the petitioner, this has continued ever since she had started her career. Civil Writ Petition No.22260 of 2010 :2 : When asked to elaborate the remarks, which, according to the petitioner would lead to her sexual harassment, the counsel would point out to that part of complaint filed by her where she has averred:-

“On one hand your husband is claiming reimbursement for such a deadly disease and on the other hand you are having a baby. You should not have gone for it. If I would have been at his place, I would not have proceeded for it.” This, according to the counsel, were sex loaded remarks and, thus, amounted to her sexual harassment at work place. The grievance of the petitioner further is that the complaint of the petitioner has not been attended to properly. As per the petitioner, the committee which was constituted to investigate this complaint was also not properly constituted as per the guidelines issued by the Hon’ble Supreme Court in the case of Vishaka and others Vs. State of Rajasthan and others, AIR 1997 Supreme Court 3011. The prayer accordingly is made for directing the respondent-University to re-constitute the committee as the earlier committee had not given proper opportunity to the petitioner to present her case.

The petitioner has also prayed sought quashing of Annexures P-5, P-8 and P-9, vide which she alongwith other Professor including the Chairman of the Department were asked to function in a cordial and harmonious relationship to build up the Department and to maintain good quality of teaching and research work in the University.

I have examined the remarks minutely, which are alleged to be loaded with sex and as per the petitioner would lead to her sexual harassment at work place. I have not been able to persuade myself to accept the submissions made that the remarks were such which could be termed as loaded with sex tenor to fall within the mischief of sexual harassment at work place as per the law laid down by the Hon’ble Supreme Court in Vishaka’s case (supra). Even if it be accepted that the remarks indeed were made by the respondent, these could, at the most, be termed as inappropriate that too if the petitioner and the respondent were not having normal healthy working relationship. It may be difficult to term such remarks as sexual. I have also not been able to appreciate as to how an advisory issued by the Vice-Chancellor to the Professor working in a Department to behave and work in a cordial atmosphere would be amenable to correction or interference by way of writ of certiorari. The advisory issued by the Vice Chancellor would not give an actionable cause to the petitioner. The petitioner, if still feels that any offence or misconduct is committed, then she would have rather better alternative remedy. I am, thus, not inclined to invoke extraordinary writ jurisdiction to interfere in this matter. The writ petition is accordingly dismissed. January 04, 2011 ( RANJIT SINGH ) ramesh JUDGE

Indian Kanoon – http://indiankanoon.org/doc/1850519/ 2

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 31.10.2017

W.P.(C) 8149/2010

SHANTA KUMAR ….. Petitioner

Versus

COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH (CSIR) & ORS….. Respondents

Advocates who appeared in this case:

For the Petitioner: Mr Rakesh Kumar.

For the Respondent:      Mr Praveen for R-1 & R-2.

Mr Arun Bhardwaj with Mr Nikhil Bhardwaj forR-3.

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

1. The petitioner has filed the present petition, inter alia, challenging the proceedings conducted by the Complaint Committee constituted in terms of the Office Memorandum (hereinafter the OM) dated 29.08.2006, to examine the charges of sexual harassment levelled by the petitioner against respondent no.3. The Complaint Committee had exonerated respondent no.3 of all the charges of sexual harassment levelled against him and its report was same accepted by the Disciplinary Authority. Consequently, the Disciplinary Authority passed an order dated 12.10.2009 (hereinafter the impugned order) exonerating respondent no.3 from the charges of sexual harassment. The petitioner has also impugned the aforesaid order passed by the Disciplinary Authority.
2. The petitioner had made a complaint regarding incident that occurred on 29.04.2005. The petitioner had alleged that while she was working at the laboratory, respondent no.3 had entered the laboratory and stopped the machine and snatched the samples from the petitioner and had thrown the materials. He had, thereafter, pushed the petitioner out of the laboratory and had locked the laboratory. The petitioner also alleged that he was shouting and using derogatory language against one Dr Sood and Scheduled Castes Community (as she was married to a person belonging to the SC category). However, it appears that the said complaint was not forwarded to the concerned authorities at the relevant time.
3. Subsequently, the petitioner was requested to complete the formalities relating to certain equipment of HEM division before leaving the same as the said division had been dissolved. In this connection, the petitioner made a noting alleging that respondent no.3 had been harsh in his behaviour and had threatened her not to enter the laboratory, while abusing Dr Jain, Dr Sood as well as the petitioner. She also stated that this was reported by her.
4. The said complaint was forwarded by Dr P. K. Jain under cover of his note dated 03.03.2006 “for further investigation of sexual harassment” of the petitioner by respondent no.3, who was at the material time holding the designation of HoD (FPD).
5. Since the expression sexual harassment had not been used by the petitioner in her noting, the concerned officer of Central Road Research Institute (hereinafter the CRRI) forwarded Dr P. K. Jains note to the petitioner inquiring whether she desired to pursue the aforesaid complaint. By a further memo dated 14.08.2006, the concerned officer also requested the petitioner to submit a clarification whether the complaint involved harassment of a sexual nature. In response thereto, the petitioner sent a letter dated 18.08.2006 now alleging that she had been subjected to “all kinds of harassment including sexual harassment” by respondent no.3. She further requested that all complaints made against respondent no.3 be perused in totality.
6. In view of the above, the Director, CRRI constituted a Complaint Committee under the Chairmanship of Dr Usha Sharma, Emeritus Scientist, Indian Agricultural Research Institute. The Complaint Committee constituted of five persons including one member from a non- government organization. The petitioner objected to inclusion of one of the members (Shri G. K. Vij) who was replaced by Dr S. Gangopadhyay. One of the members, Dr Saroj Gupta, was appointed as a convenor of the Complaint Committee.
7. The Committee examined the complaint made by the petitioner, inter alia, concluding that the complaint was not of any sexual harassment but was a case of altercation in the background of the uncongenial environment prevailing in the division. The Complaint Committee also found that respondent no.3 had indulged in using un-parliamentary language with his colleagues and juniors which was deplorable. The Complaint Committee submitted its report. The relevant extract indicating the Committees conclusion is set out below:-

“a. Mrs Shanta Kumar faced difficulties in carrying out her work in F.P. Division. She felt aggrieved as

29. i) an incident of Dr Bose holding her arm occurred on 29.04.2005.
ii) She was placed in the common pool and transferred.
iii) she was prevented from marking her attendance in the P. F. Division.
iv) She was not allowed to transfer the equipments in her name after her transfer.
30. Dr. P. K. Jain, did not provide evidence to substantiate the sexual harassment aspect of the incidence as mentioned by him in the complaint forwarded by him on 03.03.2006. c. The complaint is associated with a number of administrative and managerial issues and inter- personal conflicts.
31. The complaint is not a sexual harassment case but it was case of altercation in the background of the uncongenial environment prevailing in the Division.
32. Dr Sunil Bose appears to be a short tempered persons and occasionally indulged in using up- parliamentary language with colleagues and juniors, which is deplorable.”
33. Mr Rakesh Kumar, learned counsel for the petitioner has assailed the proceedings before the Complaint Committee as well as the impugned order passed by the Disciplinary Authority, essentially, on three grounds. First, he submitted that the Complaint Committee was not constituted in accordance with the instructions of Government of India issued by the DoPT vide OM No.11013/10/97 Estt.(A) dated 13.07.1999 inasmuch as most of the members of the Complaint Committee were subordinate to respondent no.3. Second, he submitted that an ad hoc Disciplinary Authority had been appointed even though a regular Disciplinary Authority was present and this was done only to exonerate respondent no.3 of the charges made against him. And third, that the report of the Complaint Committee and the impugned order passed suffered from lack of application of mind.
34. It was contended that a plain reading of the report of the Complaint Committee clearly established that the petitioner had suffered sexual harassment at the hand of respondent no.3. The Complaint Committee had found that the allegations made by the petitioner with regard to incident on 29.04.2005 were correct and yet no action had been taken against respondent no.3. The petitioners allegation that respondent no.3 had held her hand and pushed her out of the laboratory was substantiated, yet the Complaint Committee had exonerated respondent no.3 of the said charges. The learned counsel submitted that any unwelcome physical contact would amount to sexual harassment and the Complaint Committee had erred in not appreciating the same.
35. Mr Bhardwaj, learned counsel for respondent no.3 submitted that the findings of the Complaint Committee regarding incident of 29.04.2005 were incorrect and no such incident had occurred. He further submitted that the real genesis of the controversy was the rivalry between respondent no.3 and one Dr P. K. Jain; the complaint made by the petitioner was used as a device by Dr P. K. Jain for ulterior purposes. He further submitted that respondent no.3 had retired from services several years ago and yet was being unjustifiably hounded by the petitioner.
36. Mr Praveen, learned counsel for respondent nos.1 & 2 also countered the submissions made on behalf of the petitioner. He submitted that the ad hoc Disciplinary Authority had been constituted since Dr. Vikram Kumar, Director, CRRI had demitted office on 02.09.2008 and Dr. Gangopadhyay had taken over the charge as an Acting Director, CRRI but was not discharging the function as a Disciplinary Authority. Consequently, respondent no.1 was requested for nominating an ad hoc Disciplinary Authority and, accordingly, by an order dated 10.11.2008, the President, CSIR nominated Dr Girish Sahni, Director, IMT as the ad hoc Disciplinary Authority. He submitted that the said decision could not be faulted.
37. The first and foremost issue to be addressed is whether the report of the Complaint Committee and the impugned order are ex facie without application of mind as contended on behalf of the petitioner. It was contended on behalf of the petitioner that the findings of the Complaint Committee had established the case of sexual harassment as the Complaint Committee had accepted that respondent no.3 had held petitioners arm on 29.04.2005 as was alleged by the petitioner. According to the petitioner, since physical contact by respondent no.3 had been accepted, the conclusion that respondent no.3 sexually harassed the petitioner would necessarily have to follow.
38. The Supreme Court in the case of Vishakha & Ors. v. State of Rajasthan and Ors.: (1997) 6 SCC 241 had set out the guidelines and norms for due observance at work places. The said guidelines provided an inclusive definition of the expression sexual harassment, which is set out below:-

“2. Definition:

For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

1. a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexuallycoloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.”
2. The above definition was also adopted under the Central Civil Services (Conduct) Rules, 1964 (hereinafter the CCS Rules). The Rule 3C of the aforesaid Rules reads as under:-

3C. Prohibition of sexual harassment of working women, – (1) No Government servant shall indulge in any act of sexual harassment of any woman at any work place.

(2) Every Government servant who is incharge of a work place shall take appropriate steps to prevent sexual harassment to any woman at the work place. Explanation. – (I) For the purpose of this rule, –

(a) “sexual harassment” includes any one or more of the following acts or behaviour (whether directly or by implication) namely : –

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(vi) any other unwelcome physical, verbal, non-verbal conduct of a sexual nature.

(b) the following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:-

(i) implied or explicit promise of preferential treatment in employment; or

(ii) implied or explicit threat of detrimental treatment in employment; or

(iii) implied or explicit threat about her present or future employment status; or

(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or

(v) humiliating treatment likely to affect her health or safety.

(c) “workplace” includes,-

(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the Central Government;

(ii) hospitals or nursing homes;

(iii) any ‘sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

(iv) any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey;

(v) a dwelling place or a house.”

15. Undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behaviour. Such physical contact must be in the context of a behaviour which is sexually oriented. Plainly, a mere accidental physical contact, even though unwelcome, would not amount to sexual harassment.

Similarly, a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment.

16. In the present case, although the Complaint Committee had accepted that there was evidence to show that respondent no.3 had held the arm of the petitioner, it had concluded that the same was not a sexually determined behaviour but was in the nature of the altercation. The Complaint Committee concluded that respondent no.3 might have held the petitioners arm and thrown the material in her hand in a fit of anger; although, the said incident may be a case of harassment and is deplorable, the same would not qualify as a sexual harassment. Plainly, all physical contact cannot be termed as sexual harassment and only a physical contact or advances which are in the nature of an “unwelcome sexually determined behaviour” would amount to sexual harassment.
17. It is also relevant to note that the petitioner in her complaint regarding the incident that occurred on 29.04.2005 had reported as under:-

“Thereafter while I was working, Dr Sunil Bose, Scientist entered the laboratory, stopped the machine, snatched sample from undersigned, threw the materials and then pushed me out of the laboratory and placed lock, while shouting and using derogatory remarks against Dr Sood and SC Community (as I am married to SC).”

18. Plainly, no allegation of any unwelcome sexually oriented behaviour was alleged in the petitioners note of 16.08.2005, the petitioner had, inter alia, also alleged as under:-

“Dr Sunil Bose was harsh in his behaviour and asked me rather threatened me not to enter in the labs and FP Block while abusing yourself, Dr V. K. Sood and the undersigned, Matter was reported to DRRI in person.”

19. Plainly, none of the above two complaints had mentioned any allegation of any sexually oriented behaviour on the part of respondent no.3. The Complaint Committee had examined the evidence on record and had accepted that a charge of sexual harassment was not made out against respondent no.3. This Court does not find that the said conclusion to be perverse or without application of mind as was contended on behalf of the petitioner. The Disciplinary Authority also accepted the said report and this Court finds no infirmity with the impugned order passed by the Disciplinary Authority.
20. The contention that the Complaint Committee was not constituted in terms of the DoPT vide OM No. 11013/10/97-Estt.(A) dated 13.07.1999 is also unmerited. The OM dated 13.07.1999 is set out below:-

“Subject:- Prevention of sexual harassment of working women-Supreme Court judgement in the case of Vishaka vs. State of Rajasthan.

1. The undersigned is directed to refer to this Department’s office Memorandum of even number dated 13.2.98 vide which guidelines and norms to be observed to prevent sexual harassment of working women were issued in pursuance of the judgement of the Supreme Court in the case of Vishaka & Ors. vs. State of Rajasthan and Ors. (JT 1997 (7) SC 384).
2. The above guidelines inter-alia stipulate for the creation of an appropriate complaint mechanism in every organisation for re-dressal of the complaints made by the victims. It has come to the notice of this Department that in one of the Central Government Offices, the Committee constituted for the purpose was headed by an official of the rank of Upper Division Clerk. As an official not sufficiently higher in rank may not be able to express views independently/freely especially when the perpetrator is holding an higher position, the arrangement makes mockery of the system. It is therefore, requested that the Committee constituted for redressal of the complaints by the victims of sexual harassment should be headed by an officer sufficiently higher in rank, so as to lend credibility to the investigations.
3. The Ministries/Departments are requested to note the above instructions for strict compliance.

(Smt. S. Bandopadhyay) DIRECTOR”

21. A plain reading of the aforesaid OM indicates that the Complaint Committee is required to be headed by “an officer sufficiently higher in rank so to lend credibility to the investigation.” In the present case, there is no dispute that the Chairman of the Complaint Committee was higher in rank than respondent no.3. Further, two of the members of the Complaint Committee were Scientists, one was a Technical Officer. In addition, the Committee also included a member from a non-government organization.
22. In view of the above, this Court finds no infirmity with the constitution of the said Complaint Committee and the contention that the said constitution is not in accordance with the OM dated 13.07.1999 is unmerited.
23. The contention that an ad hoc Disciplinary Authority had been constituted to exonerate respondent no.3 is also unfounded. It has been explained by the respondent nos. 1 and 2 that Dr Vikram Kumar, who was the Director, CRRI had demitted the office on 02.09.2008 and the officer who had taken charge as an Acting Director, CRRI was not functioning as a Disciplinary Authority. Accordingly, an ad hoc Disciplinary Authority had been appointed. The petitioner had made a representation against the appointment of the ad hoc Disciplinary Authority. In her representation, the petitioner had requested that Dr Vikram Kumar be requested to continue as a Disciplinary Authority until disposal of the case. She had further requested that since appointment of a regular Director was in process, status quo be maintained till such time as the Director (Disciplinary Authority) is appointed. It is seen from the representation that the only ground urged by the petitioner was that her previous representation was pending before Dr Vikram Kumar. However, no other apprehension regarding appointment of Dr Girish Sahni as an ad hoc Disciplinary Authority was raised by the petitioner. Since Dr Vikram Kumar had demitted office on 02.09.2008, the decision of the respondent to appoint an ad hoc Disciplinary Authority cannot be faulted. The petitioner did not express any apprehension regarding the impartiality or independence of Dr Sahni as an ad hoc Disciplinary Authority and thus, cannot be heard to challenge his independence at this stage.
24. In view of the above, this Court finds no merit in the present petition. The same is, accordingly, dismissed.

VIBHU BAKHRU, J OCTOBER 31, 2017/MK

Source: Indian Kanoon – http://indiankanoon.org/doc/161594683

Delhi High Court
Ruchika Singh Chhabra vs M/S. Air France India And Anr. on 30 May, 2018 * IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 27.04.2018; Pronounced on: 30.05.2018 +      LPA 237/2018, C.M. APPL.16802-03/2018

RUCHIKA SINGH CHHABRA                                          ….. Appellant

Through: Ms. Nandita Rao and Ms. Srilina Roy, Advocates.

Versus

M/S. AIR FRANCE INDIA AND ANR.                          ….. Respondents

Through: Sh. Manish Dembla with Sh. Nachiketa Goyal, Advocates, for Respondent No.1.

Ms. Manika Tripathy Pandey with Sh. Ashutosh Kaushik and Ms. Raveena Tandon, Advocates, for Respondent No.2.

CORAM:

HON’BLE MR. JUSTICE S. RAVINDRA BHAT HON’BLE MR. JUSTICE A.K. CHAWLA % MR. JUSTICE S. RAVINDRA BHAT

1. An unsuccessful writ petitioner appeals to this Court against an order of the learned single judge dated 30.01.2018 (in W.P(C) No. 1382/2016).
2. The facts of the case are that Ruchika Singh Chabra (the appellant, hereafter “Appellant”) joined the first respondent (hereafter “the first Respondent” or “Air France”) in the year 2001 as Commercial Assistant. She alleges to having become a victim of sexual harassment by a certain employee, Stanislas Brun (hereafter “Brun”), a French National, currently serving as Managing Director of Air France, who was transferred to India as Marketing Manager, Cargo (India, Nepal and Bhutan) in 2013.The Appellant alleges to being harassed by Brun on multiple occasions and cited several incidents supporting her averment that she was subjected to repeated sexual advances inspite of her repeated or express refusal.
3. The Appellant finally confided in two people from Air France at a meeting in Delhi. She alleged that in order to victimise her for complaining against incidents of Sexual Harassment, she was compelled to submit her resignation on 23.09.2017 by three people in Air France and claims that this was under the threat of immediate termination along with being threatened against getting any letter or documents of service and provident fund/gratuity from the company. She alleges that when she tried resisting, she was gheraoed and molested by three male senior executives who got the resignation letter scribed and signed by her for reporting against her senior. After getting the resignation forcefully signed, she was asked to leave the premises within maximum half an hour without her belongings. When she requested them to collect her personal belongings and data she was blatantly refused. The Appellant after coming out of her confinement was compelled to call the Women Helpline and requested the police to come to her office. The police then came to the office and took her to the Police Station at Gurgaon and thereafter she lodged FIR No.550/15 with DLF Police Station, Gurgaon.
4. The Appellant also lodged a complaint with the Internal Complaints Committee (“ICC”), Air France on 26.09.2015 constituted in terms of Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter “the Workplace Harassment Prohibition Act”). In furtherance to the aforesaid complaint, the Appellant also approached the Delhi Commission for Women (hereinafter “Respondent no. 2” or “DCW”) on 30.09.2015 to ensure that a proper ICC is put in place to investigate the complaint of the Appellant.
5. The Appellant contended that the constitution of the said Committee is contrary to the provisions of the POSH Act as the external member appointed on the committee was not associated with a non-governmental organization and his qualifications have not been informed to her until much later in the course of the proceedings of the ICC. She also contends that the procedure followed by the ICC is not in accordance with law. The Appellant alleged that despite repeated submissions of complaints to the ICC via email by her, the ICC was not set up according to law and she was informed that the attachments in the email were inaccessible. The Appellant avers that she wrote several emails requesting the ICC to set up a personal hearing/meeting and also to inform her of the members constituting the ICC, including the details of the independent NGO member so as to facilitate her complaint.
6. The Appellant received an email from the ICC on 06.11.2015, about the names of the members constituting the ICC being Ms. Taruna Jain, Ms. Himanshu Sharma, Mr. Jeff Anthony and she was also informed about the nomination of Mr. Michael Dias, Secretary, the Employers’ Association, Delhi as the external member on account of having the necessary qualifications prescribed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act/Rules 2013.The Appellant sent several emails to the ICC seeking clarifications with regard to the affiliation of Air France with the Employer’s Association as she was not convinced of the independence of the external member appointed by the ICC; they went unanswered.
7. The Appellant raised objections with regard to the manner in which the proceedings of the ICC were conducted. Her objections included choice of a neutral venue, right to have her mother attend the proceedings, cross examination of and by the accused among other grounds. The Appellant contends that the conduct of the Air France in constituting an ICC not in compliance with the guidelines issued by the Supreme Court in the case of Vishaka and others vs. State of Rajasthan and Others, 1997 (6) SCC 241 (“Vishaka Guidelines”) and the Workplace Harassment Prohibition Act and that the ICC was conducting its proceedings in a manner which is not in accordance with law or the principles of natural justice. It is also contended that Air France is duty bound to ensure the enforcement of all laws and safeguards related to women and is also duty bound to redress violation of these laws and Constitutional provisions. She invoked the writ jurisdiction of this Court.
8. Air France urged a preliminary objection with respect to the jurisdiction of this Court to entertain the appellant’s writ petition asserting that no cause of action arose within the National Capital Territory of Delhi and, therefore, this Court lacked jurisdiction to entertain the writ petition. The learned Single Judge had initially entertained the writ petition, directing that a final report would not be prepared, while issuing notice. Upon the respondents’ entering appearance, and articulating their objection about lack of territorial jurisdiction of this court, the learned Single Judge heard the parties, who were also asked to file their submissions. On 14.02.2017, the Appellant sought leave to amend the prayer clause of the writ petition to include the following: (a) Declare Rule 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ultra vires to Rule 4(c) of the Workplace Harassment Prohibition Act (b) Declare Rule 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ultra vires of Article 14, 15 and 19 of the Constitution of India. On 14.02.2017, another application was moved by her seeking impleadment of Union of India through Ministry of Law and Justice as proper and necessary party. The learned Single Judge issued notice on the application.
9. The case was thereafter listed before the learned single judge who on 30.01.2018, dismissed the petition for want of territorial jurisdiction on the ground that the court was not persuaded to accept that any part of the cause of action has arisen within the National Capital Territory of Delhi and on 30.01.2018, the ICC passed its final report exonerating Mr. Stanislas Brun of all allegations and charges. Against this order, the Appellant has filed a Letters Patent Appeal before this Court.
10. It is argued by the Appellant that the impugned judgment is in error in stating that this Court does not have territorial jurisdiction to entertain the writ petition. The Appellant contends that she and Brun were both employed in their respective capacities at the Delhi Office of Air France as is evident from the termination letter dated 23.09.2015 issued by the Delhi Office accepting her resignation. Further, the first complaint regarding the alleged harassment suffered by her was made at a meeting in Delhi to certain employees and thus, part of the cause of action arose in Delhi. The learned counsel for the Appellant also drew the attention of this Court to a notice issued by Air France indicating the constitution of the ICC for its various offices. She pointed out that a common ICC had been constituted for the offices of Air France at Gurgaon and Delhi.
11. The Appellant also challenged the constitution and procedure of the ICC as being contrary to the provisions of the Workplace Harassment Prohibition Act, 2013. With regard to the constitution of the ICC, the Appellant has contended that the ICC constituted by the Respondent No. l is in violation of Section 4 (c) of the Workplace Harassment Prohibition Act as no NGO member familiar with the issue of sexual harassment was appointed on the Committee. The external member appointed on the committee is not associated with a non-governmental organization and his qualifications have not been informed to the Appellant. Further, the external member, Mr. Michael Dias was in fact a labour lawyer and had not disclosed that either he or his organization, (i.e. Employers Association) has not been engaged for profit by the Air France before and/or there is no conflict of interest. The counter affidavit of Air France suggests that his appointment was made in compliance to Rule 4 of the Sexual harassment of Women at Workplace (Prevention, Prohibition & Redressal) Rules, 2013 which provides that persons familiar with issues relating to sexual harassment may include a person who is familiar with “labour, service, civil or criminal law”. However, Rule 4 does not apply to the ICC constituted under section 4 (c) and only applies to District Committee under Section 7 because the constitution of district committees already includes independent members. Mr. Dias’s profile suggests however, that he is primarily a labour lawyer with no expertise in sexual harassment matters and his appointment contravened Section 4 (c) of the Act.
12. In respect of the procedure followed by ICC, the Appellant urged that the learned Single Judge has not appreciated that the ICC, constituted for both Delhi and Gurgaon did not declare the procedure to be adopted for the enquiry of the allegations of sexual harassment made by her and was biased and evidently favoured the accused person. The procedure adopted by the ICC whereby the complainant first cross examined the accused person and then was cross examined by the accused, is patently illegal. Further, the ICC’s insistence to hold the proceedings in the office of Air France rather than a neutral venue initially with a view to intimidate and put off the Appellant is contrary to the guidelines as laid down in the Vishaka judgment to assure objectivity and observe neutrality in its inquiry. The appellant was also denied the right to take her mother along with her to the proceedings, which is in contravention to the Sexual Harassment (Prevention, Prohibition and Redressal) Rules, 2013 which permit her to be accompanied by a family friend or even a social worker or a psychiatrist. It is stated also that the ICC failed to conduct an enquiry and investigate the matter as it is bound in law to do and instead started a trial without framing the charges and thus, put the entire onus to prove the case on the appellant, but has reserved the right to call anyone as witnesses, which is in violation of the Workplace Harassment Prohibition Act and the principles of natural justice. The entire proceedings conducted by the Committee as evident by the inquiry report reeks of bias which is contrary to law.
13. It was further contended that the second respondent, a statutory body of the Government of Delhi, who was seized of the appellant’s complaint did not investigate the matter to ensure that the ICC was constituted in accordance with the Vishaka Guidelines and the Workplace Harassment Prohibition Act. DCW has similar powers o that possessed by the National Commission for Women, and was duty bound under Section 10 of the Delhi Commission for Women Act, 1994 to investigate into the matter on receipt of the complaint from the Appellant to ensure that the Respondent No. l had constituted an ICC in accordance with the Vishaka guidelines and the Act and that the said committee was conducting the proceedings in accordance with the law.
14. Counsel for Air France disputed the jurisdiction of this court in the present matter by contending that the appellant was working in the Gurgaon office of Air France and that no part of the cause of action arose in Delhi as none of the alleged incidents of sexual harassment have been alleged to have happened in Delhi. Accordingly, it has been argued by the respondent that DCW has no authority over the proceedings of the ICC which is acting as the committee for the Gurgaon office in the present case. They have argued that the concerned authority, if any, is Haryana State Commission for Women over which this Court does not exercise jurisdiction. All the meetings of the ICC also took place in Gurgaon. Further, it is stated that the Delhi office of Air France is only a communication address and have placed reliance on the judgement of the Supreme Court in Eastern Coalfields Ltd. and Ors. vs. Kalyan Banerjee, (2008) 3 SCC 456 to contend that mere existence of place of office/residence within the territorial limits of the state cannot confer jurisdiction upon a Court.
15. Air France also justified the appointment of Mr. Michael Dias, submitting that even if arguendo it cannot be justified as falling under Rule 4, because of section 7, nevertheless, his objectivity cannot be questioned merely because he had supported or had been engaged by employers in the past. As an independent legal professional with vast experience, his independence could not be doubted and in the absence of any specific challenge to his qualifications, or experience, his claim that he had advised in the framing of sexual harassment prohibition policies at private employers’ workplaces or participation on similar occasions could not be dismissed. Therefore, the charge to lack of qualification in accordance with law was repelled by the respondent employer.
16. DCW argued that while it has been given the power to investigate and examine matters relating to women and deprivation of their rights, it lacks the power to issue directions in this regard and that it has not been made the Appellate Authority under the Workplace Harassment Prohibition Act. Thus, where on one hand, it has been restricted from issuing directions, on the other, the powers which were being exercised by it in cases of sexual harassment at the workplace, before the statute came into force, have also been clipped. As a result, many hapless women are suffering, for their grievances against ICC formulated by their employers which do not get suitably redressed by way of the appellate mechanism under Section 18 of the Workplace Harassment Prohibition Act and the rules thereunder. However, DCW undertook to comply with directions of this Court if the provisions of law that exist in this regard are suitably given a harmonious construction and DCW is empowered to take suitable action as has been sought for by the appellant.

Analysis and Conclusions

17. The question that arises for determination in the present appeal is whether the learned Single Judge has erred in dismissing the case on the ground of absence of territorial jurisdiction. At the outset, Air France objects on the issue pg jurisdiction of the court to entertain her writ petition. Its reply affirms that no cause of action has arisen within the National Capital Territory of Delhi and, therefore, this Court does not have the jurisdiction to entertain the writ petition as the cause of action did not arise within Delhi. The respondent contended that the office of Air France in Delhi is only a communication address and thus, not a proper functional office. Counsel appearing for the appellant however contended that this Court has jurisdiction to entertain the present petition as Air France’s registered office is located in Delhi. She submitted that since the constitution of ICC has been challenged in the petition as one of the principle issues raised, this Court has jurisdiction to examine the matter due to the fact that a common ICC had been constituted for the offices of Air France at Gurgaon and Delhi.
18. Under Article 226(1) of the Constitution of India, every High Court has the power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, or the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. Under Article 226(2), the power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
19. There was earlier a dichotomy of opinion in relation to the necessity of a cause of action having arisen, in whole or in part, within the territorial jurisdiction of a High Court for the Court to exercise jurisdiction. The law as it stood earlier was that the exercise of jurisdiction of the High Court under Article 226 depended upon the seat of the respondents within its territory. Explaining the purport of the provision before amendment of Article 226, the Supreme Court has stated in Election Commission v. Saka Venkata Subba Rao, AIR 1953 SC 210 and in the subsequent cases of Khajor Singh v. Union of India, [1961] 2 SCR 828 and Collector of Customs v. E. I. Commercial Co., [1963] 2 SCR 563 that place of office and/or residence of the respondents was the only factor for invocation of the jurisdiction of Article 226 and there was no necessity that the cause of action ought to have arisen within the territorial limits of the relevant High Court. To obviate the difficulties in the proposition of law enunciated by the Supreme Court, Article 226 (1A) was introduced by the Constitution (Fifteenth Amendment) Act, 1963 which was subsequently renumbered as Clause (2) by 42nd Amendment Act, 1976. The effect of the said amendment is that it made the accrual of cause of action an additional ground to confer jurisdiction to a High Court under Article 226. Thus, after insertion of Clause (2) the legal position is that a writ can be issued by a High Court against a person, Government or authority residing within the jurisdiction of that High Court or within whose jurisdiction the cause of action in whole or in part arises.
20. The Appellant has contended that Air France has its registered offices in Delhi. The company has not disputed this fact but asserted that the Delhi office is merely a communication address. The appellant disputes this assertion by suggesting that the ICC was constituted for both the Delhi and Gurgaon office and that the letter of termination of employment issued to the appellant shows that they were employed by the Delhi office. Therefore, it cannot be said that the Delhi office is only a communication address. Air France argued that mere existence of registered office cannot confer jurisdiction on this Court and relied on the judgment of the Supreme Court in the case of Eastern Coalfields (supra) wherein the Supreme Court held that the mere fact that an office and/or residence of the respondents is situated in the territorial jurisdiction of the Court is not sufficient to confer jurisdiction on the Court. Air France reasoned that there was nothing to prove that there was any need for approval from the head office or any connection between the functioning of the two offices and, therefore, concluded that the mere fact that the head office was located in a state would not confer jurisdiction upon the courts in that state. Accordingly, for this court to exercise jurisdiction, it is imperative that the registered office at Delhi have some nexus to the cause of action in the present case, in the absence of which, this court is devoid of any jurisdiction. Learned counsel for Air France contends that in the present case, no incidents of sexual harassment allegedly took place in Delhi, and the Appellant has filed an FIR at a police station in Gurgaon and further, since the proceedings of the ICC has been conducted in Gurgaon, therefore, no part of the cause of action has arisen in Delhi and thus, this court cannot exercise jurisdiction in the present matter.
21. To ascertain the existence of cause of action within the territorial limits of this court, it is thus, pertinent to delve into the question of what facts must be considered to constitute the cause of action in this case. Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254, a three-judge bench decision of the Supreme Court clearly held that while determining the jurisdiction of one High Court vis-a-vis the other, the facts pleaded in the writ petition must have a nexus with the claim made and the facts which have nothing to do therewith cannot give rise to a cause of action to invoke the jurisdiction of a court. It is clarified by the Supreme Court in the case of Eastern Coalfields Ltd. (supra) by reference to the earlier three-judge bench judgment of the Supreme Court in the case of Kusum Ingots & Alloys Ltd. (supra) that facts pleaded in the writ petition must have a nexus to the reliefs sought and on the basis of which reliefs can be granted. The facts which have nothing to do with the prayers made cannot be said to give rise to a cause of action which would confer jurisdiction on a Court. Therefore, it is apparent that only those facts relevant to the prayer claimed in a writ petition would be the bundle of facts constituting the cause of action.
22. In light of the above principles as laid down by the Supreme Court, it is necessary to notice that the primary relief which the appellant in the present case seeks is with respect to the constitution of the ICC. She contended that the ICC has failed to comply with the provisions of the Workplace Harassment Prohibition Act by not appointing an independent and impartial member who works at a non- governmental organisation.
23. In regard to the objection with respect to lack of territorial jurisdiction to entertain and decide the writ petition, the court is of the opinion that in light of the fact that the ICC constituted by Air France is for both the Delhi and Gurgaon office, the jurisdiction of the court over the proceedings of the ICC has been established. Moreover, the court also notices that the appellants’ appointment letter was issued by Air France’s office at Delhi. She also stated in her complaint that the letter of resignation was coerced from her in Delhi. Therefore, this court holds that in the present case, it is clear that the cause of action is directly related to the constitution and functioning of the ICC and since the ICC has been constituted both for the Delhi as well as the Gurgaon office, and further, Delhi office being the registered office of Air France in India, all these facts constitute direct nexus to the cause of action in this case. Therefore, to this extent, the facts in the present case can be distinguished from those in the case of Eastern Coalfields Limited (supra).Unlike in that case, the registered office of the respondents are not devoid of any linkage to the cause of action in the present case. Further, the mere fact that the FIR was registered in a particular state does not imply that no cause of action has arisen even partly within the territorial limits of another state (Navinchandra N. Majithia vs. State of Maharashtra, AIR 2000 SC 2966). Lodging of an FIR in one state cannot confer exclusive jurisdiction in the Court of that state.
24. Considering the entire facts of the case narrated, and the reasons stated hereinabove, in the considered opinion of this Court, the learned Single Judge should not have dismissed the writ petition for want of territorial jurisdiction. In the aforesaid situation, it would not be possible to hold that not even a part of the cause of action has arisen at Delhi so as to deprive this court the jurisdiction to entertain the writ petition filed by the Appellant. The impugned order, of the learned Single Judge, therefore, is accordingly set aside.
25. The Court being convinced that it has jurisdiction in the present case also found it prudent to hear the arguments of the parties on the merits of the case to ensure effective and expeditious remedy to the parties. The primary issues raised by the Appellant in the writ petition pertain to the composition and the proceedings of the ICC constituted by Air France under the Workplace Harassment Prohibition Act which the Appellant contends was biased, in contravention of law and against natural justice.
26. The appellant urged that the ICC constituted did not meet the criteria under the Workplace Harassment Prohibition Act as the independent member appointed on the panel of members to conduct inquiry into the allegations made by the Appellant, Mr. Michael Dias is not associated with any non-governmental organization and his qualifications have not been informed to the Appellant. It is necessary to reproduce the relevant provision of the Workplace Harassment Prohibition Act hereunder:

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

(2) The internal Committee shall consist of the following members to be nominated by the employer. namely:- …

(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.”

27. Air France contended that the independent person appointed is a lawyer with expertise in deciding labour issues. His curriculum vitae is on record for confirming the averments made with regard to the criteria for his selection. According to Air France, the requirement of a person familiar with issues pertaining to sexual harassment under Section 4(2)(c) of the Workplace Harassment Prohibition Act is to be read with Rule 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 which provides that this would be a person who is familiar with labour, service, civil or criminal law. However, Air France is clearly in error in relying on Rule 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 which is to be applied only to Section 7(1)(c) of the Workplace Harassment Prohibition Act which deals with the constitution of the Local Complaints Committee and not the ICC as in the instant case.
28. There is nothing on record, in the facts of this case to show the experience of Mr. Michael Dias in dealing with cases of sexual harassment, the cause of women in general and that he is from a non-governmental organisation. After repeated inquiries by the Appellant in this regard, only vague clarifications were given by the ICC. It is important here to recollect and underline Parliamentary intent in enacting the Workplace Harassment Prohibition Act. The objective behind the requirement of a member from non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment in the Workplace Harassment Prohibition Act is to prevent the possibility of any undue pressure or influence from senior levels as was laid down by the Supreme Court in the case of Vishaka (supra). In fact, Parliamentary objective of providing a NGO member is to keep in ICC, an independent and impartial person in position to command respect and compliance from influential management (Jaya Kodate vs. Rashtrasant Tukdoji Maharaj Nagpur University, decision of Bombay High Court in writ petition nos. 3449, 3450 & 3451 of 2013). One of the cardinal principles of natural justice is: Nemo debet esse judex in propria causa (No man shall be a judge in his own cause). The deciding authority must be impartial and without bias. The basic object of the Parliament is to provide security to the woman. It is imperative that a woman who is alleging sexual harassment feels safe during the course of the proceedings of the ICC and has faith that the proceedings are unbiased and fair.
29. This court in U.S. Verma, Principal and Delhi Public School Society Vs. National Commission for Women and Ors., 163 (2009) DLT 557 (delivered by the author of this judgment), held that the entire thrust of the complaints committee procedure and its underlying premise is that the complainant employees are assured objectivity and neutrality in the inquiry, insulated from the employers’ possible intrusions. To achieve that end, the requirement under law with respect to the qualification of the independent member on the ICC is an indispensable necessity for meting out justice under the Workplace Harassment Prohibition Act.
30. Having regard to the conspectus of circumstances in the present case, apart from the issues discussed hereinabove, this Court also views with concern, the procedure adopted by the ICC in the present case. In all, the Committee appears to have not conducted the proceedings according to principles of natural justice. It is contended by the appellant that no charges were framed by the ICC, that independent witnesses admitted to having read the evidence of the accused and yet, they were not disqualified, the Appellant was forced to cross examine and be cross examined by the accused and there was apparent unresponsiveness on the part of Respondent no. 1 in dealing with the complaint of the Appellant. The no- cause sudden termination of employment of the Appellant also raises concerns regarding there being bias in the proceedings of the ICC. Apart from non- compliance with employers in the composition, and the alleged bias by members of the ICC, that body did not take steps to lend confidence or assurance to the Appellant as she repeatedly raised concerns of not feeling comfortable in the manner in which the proceedings were being conducted and also expressed her discomfort in being around the accused, which was so vital for the fairness in the enquiry, and mandated by Vishaka (supra).This court is of the opinion, that although allegations about the conduct of inquiry are serious and can have the effect of invalidating the process altogether, it would not be appropriate to return them as findings, given that what was addressed during the hearings, were the question of jurisdiction and the validity of appointment of Mr. Dias.
31. This court wishes to emphasize here that the Vishaka Guidelines are to be taken seriously, and not followed in a ritualistic manner. The march of our society to an awareness and sensitivity to the issue of sexual harassment and its baneful effects, flagged in Vishaka (supra), culminated in the path breaking Workplace Harassment Prohibition Act over 17 years later. Even today, the world over is rocked by horrific tales of all forms of sexual harassment of female co-workers at varied workplaces. Decision makers, Parliament, courts and employers are to be ever vigilant in ensuring that effective policies are swiftly and impartially enforced to ensure justice and see that no one is subjected to unwelcome – and unacceptable behavior. Unlike stray cases of individual indiscipline, which are dealt with routinely, upon employers lie the primary obligation to ensure the effectuation of these laws and rules, aimed at securing a safe workplace to their women employees. A permissiveness or infraction in implementation in one case, implies the employer’s lack of will, or inability to assure such safety and equality at its workplace. A complainant who takes courage to speak out against unwelcome behavior regardless of the perpetrator is not merely an object of pity or sympathy, but as Alex Elle said:

“You are not a victim for sharing your story. You are a survivor setting the world on fire with your truth. And you never know who needs your light, your warmth, And raging courage…”

And upon us all- the employer, courts and the society as a whole, lies the duty to root out such wholly unwholesome behavior.

32. The ICC appointed, for the reasons discussed earlier, was clearly invalid, inasmuch as Mr. Dias did not answer the qualifications spelt out by section 4 (1)

(c) of the Workplace Harassment Prohibition Act. Consequently, the constitution of the ICC by Air France and all its resultant proceedings, including the report submitted by it, are declared invalid and accordingly set aside. It is hereby directed that the ICC should be reconstituted in strict compliance with the requirements under law within thirty days and the committee should conduct its inquiry afresh. LPA 237/2018 is allowed in terms of the above directions. There shall be no order on costs.

1. RAVINDRA BHAT (JUDGE) A.K. CHAWLA (JUDGE) MAY 30, 2018

Source: https://indiankanoon.org/doc/158080828/

Calcutta High Court (Appellete Side)
Nutrition & Ors vs Suddhasil Dey & Anr on 13 March, 2020

                             IN THE HIGH COURT AT CALCUTTA

                            CONSTITUTIONAL WRIT JURISDICTION

                                     APPELLATE SIDE

            Present:

            Hon’ble Justice Dipankar Datta

                     and

            Hon’ble Justice Madhumati Mitra

                                       WPCT 137 of 2019

               Institute of Hotel Management, Catering Technology and Applied

For the petitioners

For the respondent

    Nutrition & ors.

           vs.

  Suddhasil Dey & anr.

:          Mr. Soumya Majumder, Advocate,

           Mr. Sandip Bhattacharya, Advocate,

           Mr. Dipta Banerjee, Advocate.

:          Mr. Sudip Krishna Datta, Advocate.

Heard on : February 21, 2020 Judgment on : March 13, 2020 Dipankar Datta, J.:

1. Certain values of life, with which we Indians were always proud to associate ourselves, are fast on the decline. Respect for religion and love for humanity seem to be things of the past. Disrespect for women has also been on the increase. Although several legislation saw the light of the day to protect women, the country was lagging behind in one area. Noticing that there was no law to protect women from harassment and abuse at the workplace, attempts were made to restore some sense of sanity in this behalf. This resulted in the path breaking judgment being delivered by the Supreme Court in Vishaka v. State of Rajasthan, reported in (1997) 6 SCC 241. Inter alia, it was held therein that working women, in workplaces, have the right to gender equality, to work with dignity and to a working environment that is safe and protected from sexual harassment or abuse. In the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, the Court laid down guidelines and norms for due observance at all workplaces or other institutions, until enactment of a legislation for the purpose.
2. Acting in compliance with the directions contained in Vishaka (supra), certain employers did introduce amendments in the conduct, discipline and appeal rules to deal with instances of sexual harassment and abuse of women at workplace, if at all, with iron hands. The Central Civil Services (Classification, Control and Appeal) Rules, 1971 [hereafter the CCS (CCA) Rules] and the Railway Servants (Discipline and Appeal) Rules, 1968 immediately come to mind, where amendments were introduced to deal with allegations of sexual harassment of women at workplaces. More than a decade and a half after Vishaka (supra), saw the advent of a special law on the subject of sexual harassment. The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereafter the 2013 Act) came into force from April 23, 2013.
3. Despite the law with stringent provisions therein being put in place, the same has not deterred egotist men from exposing themselves to be hauled up and proceeded against thereunder. There have been quite a few instances of men indulging in sexual harassment of women at workplace being dealt with under the 2013 Act and suffering punishment. At the same time, as is peculiar to our country, it does not take much time to misuse a beneficent piece of legislation, brought to protect a class, for personal gains or to wreak vengeance. It has been experienced that false accusations to tarnish the image of a man of character and who is upright and honest in his dealings have not stayed too far. It is, therefore, an onerous task for the persons responsible to enforce the 2013 Act in its letter and spirit to separate the grain from the chaff. While the need to protect women from sexual harassment and abuse at workplaces can hardly be overemphasized, those entrusted to deal with such allegations of sexual harassment and abuse have to proceed strictly in accordance with the laid down norms, lest an innocent man and a victim of circumstances is held guilty. It is axiomatic that any punitive measure including dismissal/removal from service of a man holding a responsible office found guilty of sexual harassment and abuse of a woman at the workplace leaves an indelible stamp of ignominy on his forehead, which is hard to obliterate. People acquainted with such a man may shun his company, fearing that women folk of their families could also run the risk of being harassed and abused. Such an order of punishment, more often than not, leaves behind a stigma with which he may have to survive till the end of his life and thereby his very existence could be at stake. It is, therefore, imperative to tread with caution and circumspection so that while justice is rendered to a victim of sexual harassment, justice is also rendered to the man accused of the same. It is the due process that undoubtedly needs to be adhered to, so that a party to the proceedings has little reason to believe that he or she did not receive just justice.
4. Here, we are tasked to decide the fate of a teacher dismissed from service for sexual harassment of his lady students at an institution and who, having mustered the courage to challenge the order of dismissal and the appellate order dismissing his appeal before the Central Administrative Tribunal, Kolkata Bench, Kolkata (hereafter the tribunal), partially succeeded in his pursuit for justice and now has to defend the order of the tribunal, on a challenge being laid thereto by his employer.
5. The respondent before us (hereafter Mr. Dey) at the relevant time was employed as senior lecturer-cum-senior instructor in the petitioner no.1 (hereafter the institute). Several lady students of the institute lodged complaints of sexual harassment, allegedly perpetrated by Mr. Dey. Proceedings were initiated against Mr. Dey under the 2013 Act without, however, making over to him any of such complaints. Upon his appearance before the Internal Complaints Committee constituted by the institute under the 2013 Act (hereafter the ICC), Mr. Dey disputed that he had indulged in acts amounting to sexual harassment at his workplace. It appears that the ICC recorded the depositions of the complainants but such recordings were not in the presence of Mr. Dey. Such a course was undertaken ostensibly because the ICC felt that divulging the names of the complainants would compromise their safety and security and that it was necessary to maintain confidentiality. The ICC submitted its findings in an inquiry report dated March 26, 2015. The report was placed before the Board of Governors of the institute, being the disciplinary authority, whereupon it was decided to seek the comments of Mr. Dey thereon. Copy of the report upon being furnished to Mr. Dey by a memorandum dated May 19, 2015 of the secretary of the institute, Mr. Dey by his representation dated May 29, 2015 furnished his comments on the report of inquiry prepared by the ICC within the time stipulated therefor and requested that the proceedings be dropped. It was further prayed that he be reinstated in service upon revocation of the order of suspension. This was followed by a request for voluntary retirement from service (subsequently withdrawn). In the meanwhile, Mr. Dey had also approached this Court in its writ jurisdiction challenging initiation of the proceedings under the 2013 Act, referred to above, but subsequently on June 13, 2016, such writ petition was withdrawn.
6. It would be appropriate to notice at this stage what the Board of Governors and the ICC did after Mr. Dey had submitted his comments on the inquiry report. Such report of the ICC came up for consideration of the Board of Governors of the institute in its 107th meeting held on December 28, 2015. The following decision appears to have been taken by the Board:

“The Board of Governors upon deliberation on the issue finds that the report of the Internal Complaint Committee is not supported by evidence on the basis of which an independent assessment can be made by the board as disciplinary authority and as such it is resolved that the report be send back on remand to the Internal Complaint Committee of the Institute under Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act of 2013, for further enquiry for the purpose of recording evidence of the complainant and other witnesses and to submit report along with the evidence so collected within 21 days hereof for taking further necessary action in this regard to resolve the issue at the earliest.”

7. In pursuance of the above decision, the secretary of the institute by his letter dated February 9, 2016, addressed to the chairman of the ICC, apprised her that the Board of Governors had not concurred with the inquiry report on the ground that the findings are “not supported by evidence on the basis of which any conclusion can be drawn” and had resolved to remand the matter to the ICC “for further enquiry for the purpose of recording evidence of complainant and other witnesses” and to submit a report with the evidence so collected within 21 days. Request was made to the ICC to do the needful as directed by the Board of Governors and to resubmit a report for taking further necessary action.
8. The response of the ICC to the aforesaid letter dated February 9, 2016 is found in its letter dated February 15, 2016. For facility of reference, the same is quoted below:

“The Chairperson of Internal Complaint Committee of IHM, Kolkata under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 is in receipt of the letter as mentioned above wherein resolution taken by the Board at 107th Board of Governors Meeting of IHM, Kolkata held on 28.12.2015 has been furnished.

This is to bring to your kind notice that the accused officer Mr. Suddhasil Dey, Senior Lecturer-cum-Senior Instructor [under suspension] has already preferred a Writ Petition in the Hon’ble High Court at Kolkata and the matter is now sub judice [Case No. 11321 (W) of 2015]. One of the reasons of filing such application is the report that the Internal Complaint Committee has filed. Under such circumstances in the opinion of the Internal Complaint Committee, to convene a second enquiry on the self same issue, prior permission of the Hon’ble Calcutta High Court is needed. Moreover, since this Internal Complaint Committee has already formed an opinion regarding the accused officer Mr. Suddhasil Dey, Senior Lecturer-cum-Senior Instructor [under suspension] after conducting an enquiry, the subsequent enquiry by the same Committee may give the opportunity to the accused officer to raise question regarding the impartiality of the enquiry committee. Awaiting your further advice in this matter.”

9. The aforesaid letter of the ICC was forwarded by the principal of the institute to the Principal Secretary to the Government of West Bengal, Department of Tourism (being the chairman of the Board of Governors) soliciting directions for the next course of action. The matter was referred to the Law Officer in the Tourism Department of the Government of West Bengal. The opinion of the Law Officer dated February 29, 2016, inter alia, reads as follows:

“Instead of taking final decision on the said non speaking report without any reasoning to come to the abrupt conclusion, the Disciplinary Authority has sent back the case on remand to the internal complaint committee with direction to resubmit the report disclosing the evidence and the reasoning on the basis of which the inquiring authority came to the conclusion. Moreover in the pending case the Hon’ble High Court has not passed any order staying the enquiry proceedings.

ICC may be requested to act accordingly.”

10. The aforesaid opinion of the Law Officer was furnished to the chairperson of the ICC by the secretary of the Board of Governors by his letter dated March 2, 2016, whereupon a letter dated March 28, 2016, signed by all the members of the ICC, was issued. It needs to be read and, therefore, is quoted below:

“We are in receipt of your above referred letter, have gone through the same and have understood the meaning and purports thereof. We have also gone through the noting of the legal officer in this regard.

In our humble opinion since the case is pending in the Hon’ble High Court at Calcutta wherein our report has been challenged, we are not in a position to deal with the same any further without the permission of the Hon’ble Court.

However, since it is the desire of the management, we hereby place the documents and the minutes substantiating the enquiry, to your good office for your perusal and record. We say that the above referred complaints duly signed by the victims and the questionnaires put to Mr. Sudhhasil Dey, which he answered to serve his purpose, were the basis of forming our opinion in this regard. We also state that the complaints were confirmed and corroborated duly by all victims during their enquiry by the committee and they have put their respective signatures confirming their respective complaints in this regard.

A combined reading of the same and our report will speak for the reasons which led us to give our opinion in the manner as above referred.”

11. Together with such letter was enclosed the minutes of the meeting of the ICC held on various dates and the complaints of the lady students. Such letter was followed by a further undated report signed by all the members of the ICC which, in the form of an inquiry report, contained the following findings:

“Findings with reasons:

The spontaneity with which the complainants narrated the incidents of sexual harassment of the nature of physical contact, sexually coloured remarks, unwelcome physical, verbal, non-verbal conduct of sexual nature and humiliating treatment likely to affect their mind, health and careers, we the members of ICC believe their testimonies which also get independent corroboration on material particulars. Also, Shri Suddhasil Dey’s replies did not make a dent in the testimonies of the complainants. Regard being had to all the facts and circumstances of the case as substantiated by cogent evidence we the members of the ICC are convinced to hold that the following facts are establised.

1. Shri Suddhasil Dey touched the back, neck and arms of complainant “T” for longer period than what was necessary for drawing her attention.
2. Shri Suddhasil Dey gave a piercing and X-ray look at the private parts of all the complainants and commented about uniform fittings
3. Shri Suddhasil Dey would intentionally make embarrassing remarks about the girl students in the presence of other students especially the boy students.
4. When the girl students would return late from their trainings Shri Suddhasil Dey used to pull them forcibly into his quarters (in absence of his family), despite their objections.
5. One early morning, on the pretext of checking about the water supply, Shri Suddhasil Dey entered a girl student’s room without knocking at the door, when the student was sleeping in her night suit. He kept staring at her much to the embarrassment of that student.
6. Shri Suddhasil Dey would make comments about the shape of their bodies, physical appearance, dress, colour of intter garments of the girl students.
7. Shri Suddhasil Dey would always pick dusters from the waist and knife from the chest pocket of girl students only.

All the above incidents pertain to sexual harassment of the girl students of this prestigious Institute of Hospitality and Hotel Management in the Eastern Region of this Country and thus, the allegations stand firm against Shri Suddhasil Dey. ICC therefore concludes with anticipation of an appropriate and exemplary action to be taken by the Board of Governors against such henious act of a senior faculty which degrades the reputation and harmful for an co-educational institution where female students/female staff are not safe and secured and can’t study/work with dignity.”

12. Although the report is undated, the material period of time when it was prepared can be deciphered from the following passage therein:

“On 02.03.2016, the ICC vide Reference No. CT/AD-21(3)/6/3355 was requested to re-submit the report. Since Shri Suddhasil Dey has challenged the report in the Hon’ble Court of Calcutta and the matter being sub-judice, the ICC submitted the reply to the Board of Governors.

On 12.04.2016, the ICC was requested to meet Mr. Sanjeev Chopra, IAS, Additional Chief Secretary, Department of Tourism, Government of West Bengal and Hon’ble Chairman of Board of Governors of IHM, Kolkata. On perusal of the report submitted by the ICC, he suggested that the ICC should make a concise summary of all the events, their findings and recommendations along with valid reasons.

Accordingly the Internal Complaint Committee met on 22nd April, 2016 to furnish the following reasons and procedures adopted by the Committee for coming to conclusion which is now being sent to the Additional Chief Secretary, Department of Tourism, Govt. of West Bengal and Hon’ble Chairman of Board of Governors of IHM, Kolkata.”

13. The undated report was forwarded to the Additional Chief Secretary to the Government of West Bengal, Tourism Department, and chairman of the Board of Governors, by its secretary vide letter dated April 26, 2016. At the 108th meeting of the Board of Governors held on April 26, 2016 itself, the following decision was taken:

“Resolved that the report of Internal Complaint Committee of IHM, Kolkata under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 has been accepted by the Board of Governors. The Board of Governors further resolved to impose major penalty against Mr. Suddhasil Dey, Senior Lecturer-cum-Senior Instructor (currently under suspension) and recommended for dismissal of his service from this Institute with immediate effect and lodge an FIR against him.

The Board of Governors as appointing authority authorized Secretary to issue Notice of Termination on its behalf to Mr. Suddhasil Dey, Senior Lecturer-cum-Senior Instructor.”

14. Without even furnishing to Mr. Dey the further (undated) inquiry report submitted by the ICC, decisions appear to have been taken to accept the same, impose major penalty on Mr. Dey, i.e., dismissal from service, and to have an FIR lodged against him.
15. Following such decision of the Board of Governors, the secretary issued an order dated May 6, 2016 reading as follows:

“Whereas Shri Suddhasil Dey, Senior Lecturer-cum-Senior Instructor (under suspension) has been found guilty of serious and willful misconduct in the enquiry conducted under Sexual Harassment of Women at Work place [Prevention, Prohibition and Redressal) Act 2013 and whereas it is considered that the misconduct of the said Shri Suddhasil Dey Senior Lecturer-cum- Senior Instructor (under suspension) was such as to render as further retention in the public service undesirable. The gravity of the charges are as such to warrant the imposition of the major penalty. Now, therefore, in exercise of power conferred by the Board of Governors of the Institute as Disciplinary Authority in the meeting dated 26.04.2016, the undersigned being the Secretary of Board of Governors of IHM, Kolkata, hereby issues this notice of termination to dismiss the said Shri Suddhasil Dey, Senior Lecturer-cum-Senior Instructor (under suspension) from his service in the Institute with immediate effect imposing the major penalty (ix).”

16. On the same day, the Officer-in-Charge, Taratala Police Station was approached by the principal-in-charge of the institute with a request to lodge an FIR against Mr. Dey on the basis of the findings contained in the undated report of the ICC.
17. Having been dismissed from service, Mr. Dey preferred an appeal dated June 20, 2016 before the appellate authority. Since the appeal was not disposed of, Mr. Dey had the occasion to approach the tribunal with an original application [OA 250/63/2017]. The same was disposed of with a direction upon the appellate authority to decide the appeal. After disposal of the original application, Mr. Dey was requested to file an appeal afresh before the Secretary, Ministry of Tourism, Government of India (being the appellate authority). Mr. Dey submitted an appeal dated July 14, 2017. The response thereto from the principal of the institute reads as follows:

“This has reference to your appeal dated 14.07.2017 to the Secretary, Ministry of Tourism, Government of India, the Appellate Authority.

The Appellate Authority has conveyed its decision to the undersigned by Office Memorandum F.No.38(4)/2017-HDR, dated 14th September, 2017 that your appeal has been rejected by the Appellate Authority.

This is for your information.”

18. The appellate order as well as the order of dismissal and the proceedings before the ICC were challenged by Mr. Dey before the tribunal in a fresh original application [OA 350/1478/2017]. The judgment and order dated July 17, 2019 of the tribunal found glaring defects in the proceedings that were conducted against Mr. Dey. It was ultimately concluded as follows:

“10. Having noted the glaring omissions and violations of the procedural law as alleged by the applicant and set out in para 2 hereinabove, we have no other option than of quashing the order of dismissal and the appellate order and of remanding the matter back to the Board of Governors to act strictly in terms of provisions of the act, get the enquiry concluded in accordance with law and pass appropriate reasoned and speaking order on the guilt of the applicant. Till then the applicant may be continued on suspension. Let appropriate orders be issued within 4 months from the date of communication of this order.”

19. On behalf of the institute and its officers, being the respondents before the tribunal, the original application was sought to be resisted on 2 (two) grounds:

(i) the challenge to the proceedings of inquiry conducted by the ICC was hit by the doctrine of res judicata; and

(ii) the proceedings before the ICC as well as the decisions taken by the Board of Governors following such proceedings and also the appellate order do not suffer from any defect, warranting interference.

Needless to observe, both the contentions failed before the tribunal giving rise to the present proceedings.

20. Soumya Majumder, learned advocate for the petitioners has argued at substantial length. He defended the action of the petitioners by contending that Mr. Dey was extended adequate and reasonable opportunity of defence and there being no procedural defect or irregularity, far less glaring omissions and violations of procedural law as found by the tribunal, absolutely no case had been set up for interference and the tribunal was not justified in its interference with the disciplinary action taken against Mr. Dey. According to him, the findings contained in the report of inquiry were based on the evidence on record and it is not the function of the tribunal to appreciate evidence as if it were sitting in appeal. Mr. Dey, being a teacher, had crossed all limits of decency and behaved with his lady students in such manner, as would appear from the tenor of the complaints, that he is a disgrace for the teaching fraternity and deserved nothing else but dismissal. He finally urged that to keep the reputation of the institute intact and to discourage teachers from behaving with lady students in a manner bordering on harassment and abuse, judicial interdiction is warranted on facts and in the circumstances by restoring the order of dismissal passed against Mr. Dey.
21. On an earlier occasion, Mr. Majumder had attempted to impeach the judgment and order of the tribunal by contending that it fell in error in not accepting the contention that the original application was hit by the doctrine of res judicata; however, having sensed the mind of the Court in regard to the unsoundness of such a contention, he did not repeat it a second time.
22. While proceeding to complete our task of deciding whether Mr. Dey was given a fair or a raw deal, we propose to dwell on a specific contention raised by Mr. Majumder. According to him, the recommendations made by the ICC are binding on an employer in view of the provision contained in sub-section (4) of section 13 of the 2013 Act, and, therefore, the petitioners were left with no other option but to act on the recommendations made by the ICC while taking disciplinary action against Mr. Dey.
23. Per contra, Mr. Datta, learned advocate for Mr. Dey contended that the tribunal was perfectly justified in its interference with the wrongful disciplinary action. Referring to rule 7(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (hereafter the 2013 Rules), Mr. Datta first contended that Mr. Dey was entitled to copies of the complaints received from the aggrieved lady students but such provision was observed in complete breach.
24. Our attention was next drawn by Mr. Datta to section 28 of the 2013 Act, which ordains that the provisions thereof would be in addition to and not in derogation of the provisions of any other law for the time being in force. According to him, the legislative intent is therefore clear that the safeguards provided by the CCS (CCA) Rules cannot be done away with by the employer while proceedings under the 2013 Act to inquire into a complaint are in progress.
25. Referring to sub-rule (1) of rule 15 of the CCS (CCA) Rules, it was contended by Mr. Datta that the Board of Governors of the institute (being the disciplinary authority) initially not having agreed with the inquiry report of the ICC and having remitted the matter to the ICC for further inquiry, the ICC ought to have conducted a further inquiry upon notice to Mr. Dey; however, without any further inquiry being conducted, a subsequent inquiry report submitted by the ICC was considered by the Board of Governors (to which Mr. Dey was not given any access) and a final decision taken without complying with sub-rule (2) of rule 15. According to him, the procedural safeguards enshrined in the CCS (CCA) Rules, which are conceived in the interest of the employee/officer proceeded against, were thrown to the winds by the Board of Governors, seriously prejudicing Mr. Dey.
26. It was, accordingly, prayed that the writ petition be dismissed upon upholding the impugned judgment and order of the tribunal, with further direction to comply therewith within such time as may be fixed by this Court.
27. We have heard learned advocates for the parties and perused the materials on record including certain fresh documents which had not been placed for consideration of the tribunal but were placed before us by the petitioners through a supplementary affidavit, pursuant to a leave being granted in this behalf.
28. There can be no doubt that the 2013 Act is a piece of protective legislation for women, intended to preserve their dignity, the cherished goal of Article 21 of the Constitution, as well as to extend equal opportunities at their workplace, which is an integral part of Articles 14 and 16 of the Constitution. If indeed, sexual harassment, as defined in section 2(n) of the 2013 Act is alleged to have taken place and is thereafter proved, the situation has to be dealt with firmly and there can be no two opinions on this score.
29. None can possibly dispute that the complaints which were considered by the ICC, referred to its undated report submitted sometime in April 22, 2016, did contain allegations which were very serious and could be regarded as sufficient to set the ball in motion for proceeding against Mr. Dey. Initiation of proceedings does not, therefore, suffer from any infirmity except one particular flaw which we presently propose to discuss. A reading of rule 7 of the 2013 Rules does seem to suggest that a complainant has to submit 6 (six) copies of the complaint together with supporting documents and the names and addresses of the witnesses, and out of the copies so received one would have to be sent to the respondent within a period of 7 (seven) working days. Queerly, despite the provision in rule 7(2) of the 2013 Rules, none of the complaints considered by the ICC was made over to Mr. Dey. If indeed, the complaints had been so made over, it would have been open to Mr. Dey to urge before the ICC that it ought not to investigate into the complaints because, some of them were not addressed to the chairperson of the ICC whereas none of them referred to a single date or series of dates of incident(s) of sexual harassment and, therefore, were time-barred [requirements of sub-section (1) of section 9 of the 2013 Act]. Absence of date(s) of incident(s) in the compliant(s) obviously does/do not lead to an inference that the allegation(s) is/are frivolous but certainly the complainant(s) not having indicated the date(s) of occurrence, the ICC ought to have been more careful in its approach and proceeded in the manner law required it to proceed. Had copies of the complaints been furnished, opportunity to reply been given to and availed of by Mr. Dey, obviously the ICC would have been required to assign reasons and condone the belated approach [the second proviso to sub-section (1) of section 9 of the 2013 Act]. The safeguards in this regard provided by section 9 of the 2013 Act to a respondent charged with sexual harassment (here, Mr. Dey), thus, were ignored by the ICC.
30. Datta is right in his contention that the ICC while conducting the inquiry against Mr. Dey observed the statutory provisions in the breach.
31. Section 16 of the 2013 Act is an important provision in the 2013 Act. It ordains that notwithstanding anything contained in the Right to Information Act, 2005, the contents of the complaint under section 9, the identity and addresses of the aggrieved woman, the respondent and their witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the ICC and the action taken in pursuance thereof by the employer under the provisions of the 2013 Act shall not be published, communicated or made known to the public, press and media in any manner. There is, however, no provision empowering the ICC to keep the identity of the aggrieved woman and/or her witnesses undisclosed to the respondent or to keep the complainant away from the glare of the respondent in course of proceedings conducted by the ICC to inquire into the complaint. The scheme of the 2013 Act and the 2013 Rules, therefore, is not such that it goes an extra distance to ensure that the identity of the complainant and her witnesses are kept hidden from the respondent. We have found that there has been a real attempt on the part of the ICC to keep the complainants away from the respondent, considering their safety and security as well as to maintain confidentiality. Whether it was a wise or prudent step is not the question here. The ICC being a creature of section 4 of the 2013 Act, it is open to serious doubt as to whether it could have taken recourse to any step to protect the complainants which does not find an express sanction in the 2013 Act and/or the 2013 Rules. Thus considered, it has to be held that the ICC faltered by acting in a manner not authorized by law.
32. We now proceed to take note of what the CCS (CCA) Rules, which admittedly governed Mr. Dey, provides. Even before advent of the 2013 Act but giving due regard to the decision of the Supreme Court in Vishaka (supra), rule 14 of the CCS (CCA) Rules was amended by the introduction of a proviso to sub-rule (2) with effect from July 10, 2004, reading as follows:

“Provided that where there is a complaint of sexual harassment within the meaning of Rule 3-C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry of Department or Office for inquiring into such complaints, shall be deemed to be the Inquiring Authority appointed by the Disciplinary Authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.”

33. We have noticed section 28 of the 2013 Act, referred to by Mr. Datta. The expressions, “in addition to” and “not in derogation of” mean the same thing — that the 2013 Act is an additional provision and is not intended to take away the right of an employee-respondent under the service rules that bind him in the discharge of service under an employer.
34. Enactment of the 2013 Act notwithstanding, rule 14 of the CCS (CCA) Rules (providing the procedure for imposing major penalties) and rule 15 (providing for action on the inquiry report) have not been touched. Our reading of the 2013 Act and the CCS (CCA) Rules is that, a synthesis must be brought about between the two while an employer proceeds to inquire into a complaint of sexual harassment at the workplace. Certain salient features of the 2013 Act in regard to the manner of holding inquiry are these. Sub-section (1) of section 11 of the 2013 mandates an inquiry to be held in accordance with the service rules applicable to the respondent (emphasis supplied) and where no such rules exist, in such manner as may be prescribed (meaning thereby the 2013 Rules). The manner of holding inquiry under the 2013 Act is traceable to rule 7 of the 2013 Rules. Broadly, it requires furnishing copy of the complaint to the respondent, extending to him an opportunity to respond to the complaint, and proceeding with the inquiry in accordance with the principles of natural justice (emphasis supplied). Either party is free to produce witnesses in support of her/his claim. Principles of natural justice, instead of being excluded, have expressly been made applicable, and it stands to reason that a party and/or her/his witness vouching for a particular claim has to face cross-examination by the other party. The ICC [by virtue of sub-section (3) of section 11] while making an inquiry has been conferred with powers of the civil court, when trying a suit under the Code of Civil Procedure, in respect of the matters mentioned therein. In case both the complainant and the respondent are employees, the second proviso to sub-section (1) recognizes the rule of audi alteram partem and states that the parties shall be entitled to a copy of the findings enabling them to make representation thereagainst before the ICC. The inquiry under the 2013 Act is, therefore, not complete until consideration of the representation of the parties, if they choose to so represent. Rule 9 of the 2013 Rules makes it explicit that except in cases where service rules exist, the ICC upon arriving at the conclusion that the allegation(s) against the respondent is/are proved, shall have the power to make recommendation to the employer of the nature as appearing therein.
35. Having regard to the above, if recourse has been taken to the provisions of the 2013 Act upon a complaint of sexual harassment of a woman at the workplace, the 2013 Act may not be construed as provisions excluding the requirement or obligation of the employer to follow the CCS (CCA) Rules in case of an employee like Mr. Dey, to whom the same admittedly apply. We hold that the ICC, on the face of the provisions contained in section 11 of the 2013 Act and rule 9 of the 2013 Rules, ought to hold the inquiry as far as practicable in accordance with the procedure laid down in the CCS (CCA) Rules.
36. Although not cited by any of the parties, we have had the occasion to look into the decisions of the Kerala High Court, in L.S. Sibu v. Air India Ltd., reported in (2016) 2 KLJ 434, and the Delhi High Court in B.N. Ray v. Ramjas College & Ors., reported in 2012 (13) DRJ 277 (DB) and in Ashok Kumar Singh v. University of Delhi, reported in 2017 LLR 1014. Reference to these decisions is required to be made since the same, in some measure, deal with the aspect of cross-examination of the complainant and/or her witnesses by the respondent. In all these decisions, one finds the concern of the Courts to maintain anonymity of witnesses in course of proceedings initiated under the 2013 Act bearing in mind that the proceedings stem from an allegation of sexual harassment. The Hon’ble Judges of the respective High Courts appear to have taken the decision of the Supreme Court dated January 12, 2010 in SLP(C) No. 23060/2009 (Delhi University and Another v. Bidyug Chakraborty & Others) as a guide in this respect. The short order of the Supreme Court in Bidyug Chakraborty (supra) may be read:

“After hearing the learned counsel for the parties we are of the opinion that the respondents are entitled to a hearing and to cross- examine the witnesses produced by the University. We further direct that as this appears to be a case of sexual harassment the identity of the witnesses need not be revealed to the respondent or his counsel and for this purpose the respondent would be entitled to submit the questionnaire which will be put to the witnesses for their answers in writing. Mr. Rao states that the statements made by the witnesses without their names will be supplied to the respondents within two weeks from today. The said documents will also be supplied to Ms. Binu Tamta, the Advocate-Commissioner who is being appointed by this court for the purpose of getting answers to the questions to be supplied by the respondents. Ms. Tamta will ensure the anonymity of the witnesses.

Mr. Rao, further states that the respondents would be entitled to produce their entire defence evidence in addition to the aforesaid questionnaire and that all annexures which have not been supplied with the enquiry committee will also be handed over to the respondent without revealing the identity of the witnesses.

We request Ms. Tamta to complete the entire proceedings as soon as possible, preferably within two months from today. She will be paid a sum of Rs.25,000/- as her fee by the petitioner No.1.

The special leave petition is disposed of accordingly.”

37. Bare perusal of the aforesaid extract would reveal that it was an order passed by the Supreme Court while disposing of a special leave petition. It was not a decision rendered in exercise of the Supreme Court’s appellate jurisdiction. Once it is clear that the appellate jurisdiction was not exercised by the Supreme Court, we say so and with all the humility at our command, that the decision in Bidyug Chakraborty (supra) does not constitute a binding precedent within the meaning of Article 141 of the Constitution. Additionally, the date of the aforesaid order of the Supreme Court showcases that it was an order passed on January 12, 2010, i.e., much prior to the enactment and implementation of the 2013 Act.
38. It also does not appear that attention of the Hon’ble Judges of the Kerala High Court and the Delhi High Court was drawn to the provisions of section 16 of the 2013 Act. Having regard to the statutory prohibition contained in section 16, we do not feel inclined to agree that the need to maintain anonymity of witnesses and/or the concern to devise a procedure to ensure that the complainant and/or her witnesses are not compelled to face the respondent was at all intended by the Parliament. In this connection, we may refer to the Latin maxim “expressio unius est exclusio alterius”, which indicates that matters not mentioned expressly are assumed not to be covered by the statute and are excluded. We are also of the view that when the Parliament in its wisdom has not mandated such procedure as has been directed to be followed by the decisions referred to above, it would amount to judicial legislation if by judicial orders the complainant and her witnesses are sought to be shielded from facing cross-examination by the respondent on the premise that they might, for some reason or the other, be disabled to express freely while being confronted in course of cross-examination. We do not intend to say that the interest of the complainant should not be protected but observe that it is always open to the ICC to modulate the mode and manner of cross-examination so that the right of a party to the proceedings under the 2013 Act, ~ be it the complainant or the respondent ~ to be treated fairly is not abrogated.
39. In Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, reported in AIR 1990 SC 1747, the Supreme Court reminisced: “It is said, indeed rightly, that in seeking legislative intention, judges not only listen to the voice of the legislature but also listen attentively to what the legislature does not say.”

The Court also observed:

“The words used in every sub-clause too have ‘associations, echoes and overtones’. While construing such words, judges must, as Felix Frankfurter, J., said ‘retain the associations, hear the echoes and capture the overtones’.”

40. It is trite that the intention of the legislature is primarily to be discovered from the language used, which means that attention should be paid to what has been said and also to what has not been said. Here, the intention of the legislature, when examined in the light of guidance provided above by the Supreme Court, does not lead us to the conclusion that the scheme of the 2013 Act or the rules framed thereunder in any manner prohibits cross-examination of a complainant or her witnesses before the ICC by the respondent in his presence. Cross-examination through a prepared questionnaire may not in all cases serve the purpose of an effective cross-examination. At times, the next question to be put to a witness could depend on the answer to the previous question. When the legislative intent behind enacting a particular provision is clear on a literal interpretation of the statute and the result is not absurd, it would be inadvisable to substitute by judicial wisdom of what the law should have been and how it should be applied.
41. We repeat, we have not been shown from the 2013 Act or the 2013 Rules that a respondent to a complaint of sexual harassment at the workplace, which is under inquiry, has no right to cross-examine a complainant. Cross-examination of the complainant by the respondent not having been excluded by express provision or by necessary implication, the right of cross-examination has to be read into the 2013 Act and the 2013 Rules. It is difficult to conceive that an inquiry held by the ICC can pass the test of judicial scrutiny and be held to be valid without an opportunity of cross-examination being extended to the respondent. Law relating to inquiries/trials against delinquent/accused in proceedings, ~ departmental or criminal ~ invariably recognizes the right of cross- examination as a basic right of a fair hearing. Failure to extend opportunity of cross-examination in course of an inquiry/trial could legitimately give rise to a grievance at the instance of the delinquent/accused of being denied reasonable opportunity of defence, which is so very fundamental in relation to proceedings which have the potential of depriving such delinquent/accused of his valuable right under Article 21 of the Constitution.
42. The decision of a coordinate bench of this Court in Union of India & ors.
43. Shibram Sarkar, reported in (2019) 6 WBLR (Cal) 167, nullified the proceedings of inquiry under the 2013 Act for several reasons. One of the reasons was that the respondent had not been extended opportunity of cross-examination of the complainant as well as 3 (three) male railway servants who supported her version, holding that right of cross- examination is a basic right of a delinquent in departmental proceedings. The Court held that even though the Complaints Committee may have been justified in protecting the victim, absolutely no justification was found in its approach of having the statements of the male witnesses recorded in the absence of the respondent. It could be so that the decisions of the Kerala High Court and the Delhi High Court had no occasion to deal with a situation of the nature in Shibram Sarkar (supra), where some of the witnesses were male and hence, there is no discussion therein with regard to the right of the respondent to cross- examine male witnesses in his presence.
44. Here too, the members of the ICC might have in their wisdom been justified to protect the complainants but denial of opportunity to cross- examine is vital and in given situations could strike at the root of the inquiry and completely invalidate it. In the present case, Mr. Dey has legitimately claimed that the statutory safeguards, which should have been made available to him by the 2013 Act as well as by the CCS (CCA) Rules, were not so extended and that the ICC being a creature of the former could not have risen above its source. The serious allegations against Mr. Dey notwithstanding, we are reminded of what the Supreme Court in one of its decisions observed, ~ “inadequacy of the law can hardly be a substitute for over zealousness”. The Courts have to be zealous to guard against failure/omission/neglect of an employer to extend whatever procedural safeguards as are available to a respondent under the 2013 Act, to the extent of the legislative intent without compromising the aspect of ensuring safety and security of the complainant. Failure on the part of the ICC to give access to Mr. Dey to the complaints as well as allow opportunity of cross-examination of the complainants, therefore, cannot be countenanced.
45. At this stage, considering the ambivalence of judicial opinion, it may not be either imprudent or inappropriate to attempt a sketch of the broad procedure [upon synthesizing the provisions of the 2013 Act and the CCS (CCA) Rules] that could be adhered to in given circumstances where a complaint of sexual harassment within the meaning of the 2013 Act is received either by the ICC, if constituted, or by an employer, against an employee to whom service rules, as referred to in section 11 of the 2013 Act and rule 9 of the 2013 Rules, which exist do apply. This could obviate misunderstandings and confusions that quite often arise while giving effect to the extant laws, and adopting the same would expectedly advance the object and purpose of introducing the 2013 Act in keeping with the directives of the Supreme Court by giving fair, reasonable and adequate opportunities to both parties to a proceeding. It cannot be ignored that the CCS (CCA) Rules have their roots in the Constitution and have stood the test of time. We add a caveat here. The procedure we propose to advert to upon our understanding of the laws is not intended to be and may not be operated as hard and fast rules. Their operation and/or application, obviously, would have to depend on the fact situation of each case.
46. Upon the constitution of a committee within the meaning of section 4 of the 2013 Act, a victim of sexual harassment may approach the same direct with a complaint. If the complaint is, prima facie, found to have substance and worthy of being inquired into, the commitee shall call upon the employee-respondent and explain to him what the allegations against him are. Copy of the complaint must be made available to him in course of the interaction. A written response to the complaint would always be desirable and, thus, the employee-respondent ought to be invited to submit his response in writing. If there is a denial of the allegations, the committee must inquire into the complaint. In case the employee-respondent understands what the allegations levelled against him are and does not insist, the requirement of issuing a formal charge- sheet and handing over the same together with the lists of documents and witnesses could be dispensed with. However, if the employee- respondent insists, sub-rules (3) and (4) of rule 14 of the CCS (CCA) Rules need to be complied with. Should circumstances be such that conciliation can be brought about, section 10 of the 2013 Act permits the parties to proceed in that direction. Having regard to the proviso to sub- rule (2) of rule 14 of the CCS (CCA) Rules, the committee has to function as the inquiring authority and question of the disciplinary authority itself inquiring into the complaint, as is referred to in sub-rules (5) and (6) of rule 14, would not arise. Although the proviso says that inquiry could be held by the committee if a separate procedure has not been prescribed for such purpose, such provision has to yield to the provisions of sub- section (1) of section 11 of the 2013 Act mandating the committee to make inquiry in terms of the service rules applicable to the employee- respondent, should the same exist. The inquiry must thereafter, as of necessity, proceed in consonance with the principles of natural justice and also in terms of the other sub-rules of rule 14, to the extent practicable (emphasis supplied). It may not be necessary in all cases for an employer to appoint a Presenting Officer. Giving due regard to the status of the members constituting the committee, bias may not be readily inferred if such members, in the absence of a Presenting Officer, question the complainant and the employee-respondent as well as their respective witnesses for eliciting the truth. Cross-examination of the complainant by the employee-respondent and/or her witnesses cannot be avoided, if asked for by him. Similar facility must also be extended to the complainant. Attempt of the committee to maintain anonymity of the complainant and/or her witnesses cannot overreach section 16 of the 2013 Act, for reasons discussed supra. It is an elementary principle that an inquiry officer cannot simply rely on the record as well as version/opinion derived from various persons which have not been put to the respondent to test the evidence by cross-examining them. Preventing effective exercise of the right of cross-examination may constitute a serious defect in the inquiry. During the inquiry and if so requested by the complainant, the committee would be empowered to suitably recommend to the employer any of the measures appearing in section 12 of the 2013 Act and rule 8 of the 2013 Rules. Although sub-rule (23) of rule 14 does not require the inquiring authority to make any recommendation in the report of inquiry but requires that the findings forming part of such report must be in respect of each article of charge and based on reasons, we feel persuaded to hold on a reading of sub- section (3) of section 13 of the 2013 Act that the inquiry report may contain recommendations of the nature spelt out in clauses (i) and (ii). In a case where it is proposed to make recommendation of the nature found in sub-section (3) of section 13 after arriving at a finding that the allegation(s) has/have been proved, we hasten to add that the safeguard contained in the second proviso to sub-section (1) ought to be made available to the employee-respondent so that he gets an opportunity to persuade the committee either not to make any recommendation, or not to make any harsh recommendation even if called for on facts and in the circumstances. This is an additional opportunity, which flows from the second proviso to section 11 of the 2013 Act. It might appear at first blush that such provision would come into play where both the parties are employees. The definition of the term ’employee’ as in section 2 (f) of the 2013 Act evidently does not cover a student of an institution, as in the present case, but there is no warrant for the proposition that the benefits of hearing and making representation, referred to in the second proviso to section 11, may not be made available to the respondent if the complainant is not an ’employee’ of the ’employer’, defined in section 2 (g) thereof. If such proposition were to be accepted, i.e., the second proviso has no application in case of the complainant being a non-employee, should the respondent be not heard? The answer to it cannot be such so as to deny opportunity of hearing to the respondent. If the opportunity of hearing cannot be denied, the opportunity of making representation cannot also be denied. If the committee considers the representation and overrules the points raised by the respondent, thereby leading to a recommendation contained in its report of inquiry, such report upon being placed before the disciplinary authority must again be provided to the respondent so that he gets the opportunity of making a representation not only against the findings but also against the recommendation. The disciplinary authority upon consideration of the records of inquiry, the report of inquiry and the comments of the respondent on such report shall then proceed to pass an appropriate final order in exercise of power conferred by rule 15 of the CCS (CCA) Rules.
47. That Mr. Dey was not served with copies of the complaints and that he was not extended opportunity of cross-examination, however, do not appear to have been raised before the tribunal and, therefore, there appears to be no discussion in respect thereof. We have dealt with the issues, since the same have emerged from the documents now placed before us by the petitioners.
48. It is revealed from the impugned judgment that the tribunal was sufficiently impressed with the contention raised by Mr. Dey that there was no further enquiry by the ICC after submission of its initial report and that Mr. Dey was nailed with an order of dismissal based on a subsequent inquiry report to which he had no access and this constituted violation of the principles of natural justice.
49. Even if we discount the two (2) grounds on which the proceedings before the ICC stood vitiated, i.e., non-supply of copies of the complaints and failure to permit cross-examination, the ground on which the challenge of Mr. Dey succeeded before the tribunal is sound and we hold the judgment and order of the tribunal unexceptionable. There can be no doubt that Mr. Dey’s disciplinary authority (the Board of Governors) was the sole judge of facts. Having looked at the inquiry report dated March 26, 2015, the Board of Governors had decided not to agree with the inquiry report and resolved that the ICC, on remand, may conduct a further enquiry. The ICC initially dillydallied by raising frivolous pleas, one of which was that there was a pending writ petition before this Court at the instance of Mr. Dey. The Law Officer in the Tourism Department of the Government of West Bengal was right in observing that no order of stay being operative, there was no bar for the ICC to proceed to hold further inquiry by way of collection of evidence from the complainants. Admittedly, no further enquiry was conducted by the ICC and it proceeded to furnish its subsequent inquiry report, sometime in April, 2016, enclosing therewith the complaints of the complainants and giving its reasons as to why the allegations against Mr. Dey had been found to have merit. We agree with Mr. Datta that in terms of rule 15 of the CCS (CCA) Rules, further inquiry ought to have been conducted by the ICC in terms of the decision of the Board of Governors dated December 28, 2015; even if no further enquiry were or required to be conducted, Mr. Dey had the right to receive copy of the subsequent inquiry report and that the Board of Governors, without furnishing copy of the subsequent report of the ICC to Mr. Dey, could not have straight away determine that his guilt having been proved, he deserved an order of dismissal together with launching of prosecution. Neither the 2013 Act nor the 2013 Rules speak of dispensation of the requirement of furnishing a copy of the inquiry report to the respondent, prior to disciplinary action being taken. In such view of the matter, there has been an egregious failure on the part of the Board of Governors of the institute to render justice to Mr. Dey. We, thus, share the concern expressed by the tribunal.
50. The contention on behalf of the petitioners before the tribunal that the original application was hit by the principle of res judicata, we are inclined to believe, was one raised in desperation. There are two reasons why such contention should fail. First, the writ petition that Mr. Dey had presented before this Court challenging initiation of the proceedings was not decided on merits; the writ petition stood withdrawn by him. The principle of res judicata is not attracted if issues are not decided and there is no discussion or finding rendered by the Court on the same subject matter. Secondly, since the tribunal was the sole repository of jurisdiction, as the court of first instance, to entertain a claim from the side of Mr. Dey in relation to the inquiry that had commenced under the 2013 Act, the learned Judge of the writ court had no jurisdiction to entertain the writ petition. Assumption of jurisdiction by the writ court was erroneous and any order passed in such writ proceedings, suffering from inherent lack of jurisdiction, being void, does not bind any party. In such a situation too, the principle of res judicata is not attracted.
51. What remains is the contention of Mr. Majumder that in terms of section 13(4) of the 2013 Act, the recommendation of the ICC is binding on the Board of Governors and, therefore, no procedural defect occasioned in dismissing Mr. Dey on the basis of such report which contained the recommendation that he should be dismissed from service. The proposition advanced by Mr. Majumder is nothing short of absurdity. The language employed in section 13(4) of the 2013 Act does not make it imperative for the disciplinary authority to act on the recommendations of the ICC by accepting it. The expression “act upon the recommendation” would mean either accept or reject the recommendation, for reasons to be recorded in writing. If the recommendations were binding, it would cease to be a recommendation and partake the character of a command which obviously is not the legislative intent. We hold that the recommendation of the ICC has to be seen and understood as a recommendation, nothing more nothing less. It is entirely for the disciplinary authority to decide its next course of action upon giving the recommendation due consideration.
52. For the reasons aforesaid, we find no merit in the writ petition. The same stands dismissed at the admission stage, without calling for counter affidavit from Mr. Dey.
53. The order of the tribunal shall be complied with as expeditiously as possible, preferably within the time frame found in sub-section (4) of section 11 of the 2013 Act.
54. We make it clear that Mr. Dey shall be free to raise all points that are available to him in defence as and when the inquiry before the ICC resumes in terms of the order of the tribunal.
55. There shall be no order as to costs.

             (MADHUMATI MITRA, J.)                            (DIPANKAR DATTA, J.)

Source: Indian Kanoon – http://indiankanoon.org/doc/46349145/

Asita Pradhan vs The State Of Assam And Anr on 27 May, 2020

 GAHC010123242015

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C) 6807/2015

1:ASITA PRADHAN

W/O SRI DIBAKAR DAS R/O WARD NO. 6 MILANPUR, DERGAON

GOLAGHAT- 785614, PRESENTLY WORKING WITH THE SPECIAL BRANCH,

TECHNICAL LAB, ASSAM POLICE, KAHILIPARA, GUWAHATI.

VERSUS

1:THE STATE OF ASSAM and ANR

REP. BY THE DIRECTOR GENERAL OF POLICE GOVT. OF ASSAM, ASSAM,  GUWHATI-3.

2:BANYA GOGOI- APS SUPERINTENDENT OF POLICE SOU, SPECIAL BRANCH, KAHILIPARA, ASSAM, GUWAHATI-19

Advocate for the Petitioner   : MR.R BAISHYA

Advocate for the Respondent : GA, ASSAM

                                        BEFORE

                   HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

ORDER

Page No

27.05.2020 None appears for the writ petitioner. Mr. G.R Singha, learned counsel appears for the respondent No.2 and Ms. MD Bora, learned counsel appears for the respondent No.1.

The petitioner, who is a Sub-Inspector in the 1 st Battalion of the Assam Police, alleges Page No.# 2/4 that the respondent No.2 Banya Gogoi, APS, Superintendent of Police (Sou), Special Branch, Kahilipara, Assam on 31.10.2015 had called the petitioner to her office chamber. Paragraph 9 of the writ petition is extracted as below:-

“9. That the petitioner states after all 4 gentlemen were seated, the respondent No.2 without any provocation started to shout at the petitioner and abused with various unparliamentarily words. The respondent No.2 went ahead to racially abuse the petitioner by calling her a monkey for her Nepali ethnicity. All hell broke loose when the respondent No.2 in front of 4 other Gentlemen addressed the petitioner as a prostitute. It crystallized from the conduct of the respondent No.2 she intentionally made the male members seated and thereafter abused the petitioner with unparliamentarily words and labelled her appearance in front of all the male members seated. The petitioner could not react instantly as she was taken aback and shocked.”

The allegation per-se appears to be a serious allegation.

The respondent No.1 has filed an affidavit in opposition, wherein in paragraph 8, it is stated as follows:-

“8. That with regard to the statements made in paragraph Nos. 8 and 9 of the writ petition, the deponent begs to state that Smti Ratna Singha, APS, Superintendent of Police SB(E) of Special Branch, Kahilipara was ordered to conduct an administrative enquiry into the allegation made by the petitioner. During the course of enquiry statements of the petitioner, Respondent No.2 Lakheswar Nath, Inspector, Jiten Saikia, DSP, Dwijen Saikia, Sub Inspector of Police of Special Branch Headquarters etc was recorded. The Enquiry Officer on 14.12.2015 prepared a report and report reveals that the incident of scolding and reprimanding by Ms. Banya Gogoi was possibly misunderstood and misinterpreted by Smti Asita Pradhan as sexual harassment.”

We have also perused the enquiry report enclosed to the said affidavit. The enquiry report concludes as follows:-

“Having examined the complainant Smt. Pradhan and the allegation made Page No.# 3/4 by her against Ms. Banya Gogoi it appears that the allegation could not be termed as sexual harassment as defined under the Sexual Harassment of women at work place (Preventive, Prohibition and Redressal) Act, 2013.

At best the allegation could be implying a verbal conduct under Sec.2 clause n(v). A single isolated incident as alleged by the complainant could not possibly constitute sexual harassment as per laid down definition unless it involved an act of outrageous and egregious conduct which is sexual in nature and unwelcome.”

Apparently, the report of the enquiring officer on the allegation made by the petitioner is that the conduct of the respondent No.2 cannot be termed as sexual harassment under the Sexual Harassment of women at work place (Preventive, Prohibition and Redressal) Act, 2013 and at the best it can be an allegation implying a verbal conduct under Section 2 clause n(v) of the said Act. The enquiry report further concludes that the entire incident involving two women needs to be looked at from the psychological and temperamental view point and the natural demeanour typical of a woman. It further concluded that the incident is centred around the dignity and sentiments of one women officer who felt humiliated and offended for being scolded in presence of other male officers on the one hand and the sense of being openly defied and ignored on the part of a superior women officer on the other hand.

The report of the Superintendent of Police SB(E) appears to be totally misdirected considering the nature of the allegations made in paragraph-9 of the writ petition as extracted above. The allegations made in paragraph 9 of the writ petition centres around an allegation that there was racial abuse against the writ petitioner by the respondent No.2 and she was further abused with certain unparliamentarily words and was labelled as a prostitute. It has nothing to do with sexual harassment under the Sexual Harassment of women at work place (Preventive, Prohibition and Redressal) Act, 2013, where sexual harassment is defined as under:-

“sexual harassment includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:-

(i)    physical contact and advances; or

(ii)   a demand or request for sexual favours; or

(iii)  making sexually coloured remarks; or

(iv)  showing pornography; or

(v)   any other unwelcome physical, verbal or non-verbal conduct sexual nature;”

None of the allegations made in paragraph 9 of the writ petition pertains to any of the circumstances indicated in the definition of sexual harassment and naturally the allegation per-se may not be an allegation for sexual harassment. But what is disturbing is that the allegation raised by the petitioner was that the respondent No.2 had abused her by calling her monkey on the basis of her ethnicity and was abused with unparliamentarily word and was labelled as a prostitute.

We require the Inspector General of Police, Assam, Ulubari who had filed the affidavit in opposition on 23.03.2019 to make a fresh enquiry on the allegations made by the petitioner in paragraph 9 of the writ petition and submit a report to this Court. The report be submitted within a period of four weeks from today. In conducting the enquiry, the evidences already taken in pursuant to the earlier enquiry report be retained and also be taken into account. The Inspector General of Police may take any further evidence, if required.

Let a copy of this order be furnished to Ms. MD Bora, learned counsel appearing for the respondent No.1.

List the matter again on 24.06.2020. JUDGE Comparing Assistant

Indian Kanoon – http://indiankanoon.org/doc/116544840/

Supreme Court of India

Aureliano Fernandes vs State Of Goa. on 12 May, 2023

Author: Hon’Ble Ms. Kohli

Bench: Hon’Ble Ms. Kohli, Hon’Ble Ms. Trivedi

Civil Appeal No. 2482 of 2014

 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 2482 of 2014

 AURELIANO FERNANDES .… APPELLANT

 Versus

 STATE OF GOA AND OTHERS …. RESPONDENTS

 JUDGEMENT

HIMA KOHLI, J.

1. SCOPE OF THE APPEAL
2. A challenge has been laid by the appellant to the judgment dated 15th March, 2012, passed by the High Court of Judicature at Bombay Bench, at Goa, dismissing a writ petition[1] preferred by him against an order[2] passed by the Executive Council[3] of Goa University (Disciplinary Authority) accepting the Report[4] of the Standing Committee for Prevention of Sexual Harassment at Work Place[5] and imposing upon him, a major penalty of dismissal from services and disqualification from the future employment under Rule 11(IX) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965[6] which was duly upheld by the Governor and the Chancellor of Goa University, being the Appellate Authority[7].
3. SEQUENCE OF EVENTS

(a) PROCEEDINGS BEFORE THE FIRST COMMITTEE:

2. The factual matrix of the case needs to be placed in a chronological sequence. The appellant commenced his career in the respondent no. 2 – Goa University as a Temporary Lecturer in the Department of Political Science, in the year 1996. He was W.P. No. 602 of 2011 Dated 10th May, 2010 For short ‘EC’ Dated 05th June, 2009 For short ‘ The Committee’ For short the CCS (CCA) Rules Vide Order dated 19th April, 2011 appointed as the Head of the said Department, in the year 2003. It is the appellant’s version, which is strongly refuted by the other side, that aggrieved by the passing of a resolution by the Departmental Council of the Department of Political Science against them, two girl students along with their friends submitted a complaint to the respondent no.2 – University, alleging physical harassment at his hands. The said complaints[8] were the starting point of an inquiry initiated by the Committee on receiving complaints by the Registrar of the respondent no. 2 – University[9]. The Committee served a notice[10] on the appellant calling upon him to explain the charges levelled against him in nine complaints and to appear before it for a personal hearing on 24th April, 2009, a date that was subsequently changed to 27nd April, 2009. Contemporaneously, the Registrar of the respondent no. 2 – University directed the appellant to hand over charge and proceed on leave till the conclusion of the inquiry.
3. The appellant furnished a detailed reply to the Committee, running into fifty-three pages wherein he raised some preliminary objections to the inquiry being conducted by the Committee, alleged a well-organized conspiracy against him by some wayward students in connivance with the members of the faculty and refuted the contents of fourteen depositions of girl students forwarded to him by the Committee. He concluded by stating that the charges of sexual harassment levelled against him were completely false and baseless. The appellant also addressed a letter to the Registrar seeking Complaint dated 11.03.2009 & 17.03.2009 Under cover of letter dated 08.04.2009 Dated 17th April, 2009 removal of two Members of the Committee on the ground of bias and on a plea that being his subordinates, they were prone to bias.
4. The Committee called the appellant for a hearing on 27th April, 2009. It was alleged by the appellant that the deposition of all the complainants including the witness named by him were recorded while he was made to wait outside the Committee room. He was called later on and the Committee recorded his statement. Even on the next hearing, on 28th April, 2009, a similar procedure was adopted by the Committee. On 30th April, 2009, the appellant received a notice from the Committee enclosing therewith another complaint of sexual harassment received against him to which he was directed to respond and present himself on 6th May, 2009. Vide letter 2nd May 2009, the appellant sought more time to submit a reply to the additional complaint and permission to engage an Advocate to appear for him before the Committee.
5. The appellant submitted his reply to the notice on 8th May, 2009. On 6th May, 2009, the request of the appellant to engage a lawyer was declined by the Committee. On the same day, a corrigendum was issued by the Committee to the earlier letter [11]informing him that the next date fixed for filing his reply should be read as “12th May, 2009” instead of “12th June, 2009” and the date for further deposition should be read as “14th May, 2009” instead of “12th June, 2009”.
6. Vide letter dated 8th May, 2009, the appellant objected to the inquiry being conducted by the Committee on a complaint[12]received from an ex-student of the respondent no. 2 – University on the ground that she was neither a student nor an employee of the University. Additionally, he asked for a copy of the said complaint, besides the statement of deposition that had already been furnished to him.
7. On 12th May, 2009, the appellant forwarded an affidavit of a witness to refute some of the allegations levelled against him by the complainants. Vide letter of even date, the Committee forwarded an additional deposition of a member of the Faculty, Dr. Rahul Tripathi, who had stepped down from the Committee constituted to look into the complaints against the appellant and deposed as a witness.
8. The appellant wrote a letter dated 13th May, 2009 to the Committee seeking some time to appear before it on a plea that he was admitted in the hospital with a severe back- ache. Vide notice dated 14th May, 2009, the Committee directed the appellant to appear before it on 19th May, 2009 for recording his deposition and for submitting his written reply to the fresh deposition of the other complainant. Further extension of time, as requested, was however declined by the Committee.
9. In the meantime, vide letter dated 13th May, 2009, the appellant applied to the respondent no.2 – University seeking voluntary retirement on health grounds. However, the said application was withdrawn by him on 18th May, 2009. On the same date, an advocate engaged by the appellant’s brother issued a notice to the respondents no.2 and Signed on 27th April, 2009 3 seeking extension of time by one month for the appellant to appear before the Committee.
10. In its letter dated 20th May, 2009, the Committee noted that though the appellant had failed to appear before it on 19th May, 2009 for recording his further deposition, he was being granted one last opportunity to present himself on 23rd May, 2009, for completing his deposition and for cross-examining the witness including the complainants. Alongside, six more depositions were forwarded to the appellant, seeking his reply by 22nd May, 2009.
11. The appellant addressed yet another letter[13] to the Committee expressing his inability to attend the proceedings on 23rd May, 2009, on health grounds and requested for postponement of the proceeding by 3-4 weeks. However, his request was turned down by the Committee on the very same day and the appellant was directed to remain present on 23rd May, 2009, failing which, he was informed that the Committee would proceed further with the inquiry. A second request[14] made by the appellant for seeking postponement of the proceedings of the Committee, met the same fate.
12. After about ten days, the appellant sent a letter[15] to the Chairperson of the Committee stating inter alia that he had partially recovered from his ailment and was in a position to depose. He sought fresh dates to enable him to furnish a reply to the additional depositions received by him. However, by then the Committee had proceeded Dated 22nd May, 2009 Dated 23rd May, 2009 Dated 4th June, 2009 ex-parte against the appellant and submitted its Report[16] to the Registrar of the respondent no. 2 – University stating that 18 meetings had taken place in connection with the inquiry that had established sexual harassment of the complaints by the appellant which act amounted to a grave misconduct and was in gross violation of Rule 3(1)(III) of the CCS Conduct Rules and consequently, recommended termination of his services.

(b) PROCEEDINGS BEFORE THE EXECUTIVE COUNCIL

13. The EC held a meeting on 13th June, 2009 wherein the Report submitted by the Committee was accepted and the appellant was placed under suspension with immediate effect. Vide Memorandum dated 8th September, 2009, the Chairman of the EC informed the appellant that the EC proposed to conduct an inquiry against him under Rule 14 of the CCS (CCA) Rules. Enclosed with the said Memorandum, was the statement of the Articles of Charge, statement of the imputation of the misconduct in support of each Article of Charge, list of documents and a list of witnesses for sustaining the said charges. The appellant was given ten days’ time to submit a written statement of his defence and state whether he desired to be heard in person.
14. The appellant submitted a detailed reply to the aforesaid Memorandum, running into twenty pages and also demanded several documents and information relating to the complaints of sexual harassment made against him, on the plea that they were relevant Dated 5th June, 2009 for submitting his written statement which was turned down by the Vice Chancellor of the respondent no. 2 – University[17] and he was granted twenty days to respond.
15. On 15th October, 2009 the EC appointed a former Judge of the Bombay High Court to conduct an inquiry into the charges framed against the appellant and he was informed that the Inquiry Officer will hold a preliminary inquiry into the charges framed against him on 9th November, 2009. The first sitting of the Inquiry Committee conducted on 9th November, 2009, was duly attended by the appellant and his Advocate. The second meeting was scheduled on 7th December, 2009 on which date when the Presenting Officer appearing on behalf of the respondent no. 2 – University referred to the judgment dated 26th March, 2004, passed by this Court in the case of Medha Kotwal Lele and Others v. Union of India and Others[18]and the amendment[19] to the proviso to Rule 14(2) of the CCS (CCA) Rules that provides that where there is a complaint of sexual harassment within the meaning of Rule 3C of the Central Civil Services (Conduct) Rules, 1964[20], the Complaints Committee shall be deemed to be the inquiring authority for the purpose of imposing major penalties, the Inquiry Officer decided to keep the inquiry in abeyance, so as to ascertain as to whether any further directions had been issued by the Supreme Court in Medha Kotwal’s case (supra).
16. On 15th December, 2009, the Registrar of the respondent no. 2 – University informed the appellant that the disciplinary proceedings initiated against him on the vide letter 17th September, 2009 (2013) 1 SCC 297 Dated 1st July, 2004 CCS (Conduct) Rules recommendations made by the EC in its meeting held on 12th December, 2009, stood terminated and the order appointing the Inquiry Officer had also been withdrawn in the light of the order dated 26th April, 2004, passed by the this Court in Medha Kotwal’s case holding that the report of the Complaints Committee for Prevention of Sexual Harassment of Women at Workplace shall be deemed to be an Inquiry Report under the CCS (CCA) Rules which shall be binding on the disciplinary authority for initiating disciplinary action against the government servant. Describing the decision taken by the EC on 14th June, 2009 of appointing an Inquiry Officer to inquire into the charges framed against the appellant as inadvertent, the Registrar informed the appellant that the disciplinary authority will decide the further course of action against him under the extant rules.
17. DECISION OF THE DISCIPLINARY AUTHORITY AND THE APPELLATE AUTHORITY
18. This was followed by issuance of a Memorandum[21] by the Vice-Chancellor of the respondent no. 2 – University on behalf of the EC informing the appellant that in its meeting conducted on 28th January, 2010, the EC had accepted the report of the Committee and decided that he was unfit to be retained in service in view of the gravity of the charges levelled against him. Proposing to impose a major penalty of dismissal Dated 17th February, 2010 thereby disqualifying him from future employment as contemplated under the Rules[22], the appellant was granted two weeks to submit his representation.
19. The appellant submitted his reply on 13th March, 2010. After examining his reply, the disciplinary authority dismissed the appellant from service vide order dated 10th May, 2010. The appeal[23] preferred by the appellant against the said dismissal order was rejected by the order[24] of the Appellate Authority[25].
20. DECISION OF THE HIGH COURT
21. The said orders were challenged before the Bombay High Court. The High Court observed that the Committee had granted ample opportunities to the appellant to cross-examine the complainants and the witnesses, but he had deliberately elected not to appear before it. In such circumstances, the Committee could not be blamed for proceeding ex-parte against him and submitting its Report. It was also held that the Committee was justified in discarding the medical certificates submitted by the appellant as he kept on making flimsy excuses to stay away from the enquiry proceedings. The plea of the appellant that the Committee was improperly constituted or its composition was questionable as it comprised of persons who were junior to him in the Department, was rejected as meritless. Further, the contention that the enquiry had been conducted with undue haste, without giving a Rule 11 (IX) CCS CCA, 1965 Appeal dated 25th June, 2010 Dated 19th April, 2010 Governor of Goa and Chancellor of Goa University fair and reasonable opportunity to the appellant to defend himself, was also turned down. As a result, the High Court did not see any merits in the said writ petition which was dismissed holding that there was no breach of the principles of natural justice and the Service Rules in the case.
22. ARGUMENTS ADVANCED BY COUNSEL FOR THE PARTIES :

(a) COUNSEL FOR THE APPELLANT

20. Arguing on behalf of the appellant, Mr. Bishwajeet Bhattacharya, learned Senior counsel has assailed the impugned judgment on several counts. The main thrust of his arguments is that the dismissal order[26] passed by the Disciplinary Authority and upheld by the Appellate Authority is based solely on the Report submitted by the Committee which was nothing more than a fact-finding proceeding that had commenced on 17th March, 2009 and concluded on 5th June, 2009; that though the inquiry had purportedly commenced on 17th March, 2009, the first hearing had actually taken place only on 27th April, 2009 and the entire proceedings were hurriedly closed within a span of thirty-nine days, by relying on forty-eight documents and forty-three depositions in the course of eighteen meetings without affording the appellant adequate opportunity to defend himself and present his case. It was argued that though the Committee had acceded to the request of the appellant for extension of time[27] and had granted him time till 12th June, 2009, the period was abruptly curtailed by almost one month and the date was advanced to 14th May, 2009, without any justification and unmindful of the appellant’s indisposition, Order dated 10th May, 2010 Vide Letter dated 5th May, 2009 as was conveyed. Only when the appellant wrote to the Committee seeking a new date for his further deposition and for conducting further proceedings, did he come to know that the Committee had concluded its proceeding and submitted its Report on 5th June, 2009 itself. It is thus contended that the principles of natural justice have been grossly violated by the respondents and the appellant has been deprived of a reasonable opportunity of a fair trial, before passing the order of dismissal from service thereby causing him serious prejudice.
21. Citing the decision of this Court in Union of India and Another v. Tulsiram Patel[28], learned Senior counsel argued that none of the three clauses to the second proviso to Article 311(2)of the Constitution of India that mandates that no person employed by the Union or the State shall be dismissed or removed from the service except after an inquiry, could have been resorted to by the respondents for having elected not to conduct a proper inquiry before proceeding to dismiss the appellant. It was vehemently contended that contrary to the procedure prescribed under the CCS (CCA) Rules, no proper inquiry was conducted by the respondents and no charges were framed by the first Committee till the date it had submitted its Report[29] and that the Articles of Charge that were framed by the respondents vide Memorandum dated 8th September, 2009, were subsequently dropped and the inquiry ordered was abandoned in favour of the Report submitted by the first Committee which was only a fact finding report that could not have been relied on as a final inquiry, particularly when it entailed serious (1985) 3 SCC 398 Vide letter dated 5th June, 2009 consequences. Learned Senior counsel cited a decision of a learned Single Judge of the Delhi High Court in Sandeep Khurana v. Delhi Transco Ltd. And Others[30] and of a Single Judge of the Karnataka High Court in Professor Giridhar Madras v. Indian Institute of Science represented by Chairman and Others[31] to urge that the Report of the Committee could not be equated with the report of an Inquiry officer, as contemplated in the procedure prescribed in Rule 14 of the CCS (CCA) Rules. This non-adherence to the procedure prescribed has caused grave injustice to the appellant, it being a serious infraction of the principles of natural justice. Allegations of bias were also levelled by the appellant against some members of the first Committee.
22. Learned counsel further argued that none of the three clauses appended to the second proviso of Article 311(2)of the Constitution of India have been pressed against the appellant to justify the impracticability of holding a proper inquiry and that failure on the part of the Committee to follow the procedure as prescribed in the CCS (CCA) Rules itself vitiates the entire proceedings. In fact, it is the case of the appellant that at no stage was he informed by the Committee that the proceeding being conducted by it were disciplinary proceedings and therefore, the report submitted by the said Committee could not have been treated by the respondents as an Inquiry Report under CCS (CCA) Rules.

(b) COUNSEL FOR THE RESPONDENTS NO. 2 AND 3

23. On the other hand, Ms. Ruchira Gupta, learned counsel appearing for the respondents no.2 and 3 strongly refuted the arguments advanced on behalf of the ILR 2006 (11) Del 1313 (2019) SCC Online Kar 3508 appellant. She submitted that the appellant having failed to challenge the decision taken by the respondent no.2 – University of dispensing with the inquiry contemplated in the Memorandum dated 8th September, 2009 at the appropriate stage, he is precluded from doing so belatedly. To substantiate this submission, she referred to the preliminary objections taken by the appellant in his letter dated 18th April, 2009 where he had raised five preliminary objections relating to the reconstitution of the Committee and its composition, the prejudice allegedly harboured against him by two members of the Committee and the fact that he was denied access to the records sought by him. But the grievance subsequently sought to be raised about the competence or jurisdiction of the Committee to conduct the inquiry and the procedure adopted by it, was never questioned by the appellant.
24. Referring to the correspondence exchanged between the Committee and the appellant, learned counsel submitted that the appellant was granted at least three opportunities to submit his reply and eighteen hearings were conducted by the Committee but he did not participate in the proceedings on several dates. Only after the appellant failed to turn up and made flimsy excuses of indisposition and repeatedly sought adjournments, did the Committee proceed ex parte against him and submitted its Report to the Registrar on 5th June, 2009. It was thus sought to be argued that the situation would not have changed in any manner had another opportunity been afforded to the appellant, as requested by him vide letter dated 4th June, 2009. In this context, the attention of the Court was drawn to the proviso to Rule 14(2) of the CCS (CCA) Rules, which enjoins the Complaints Committee to hold an inquiry into the complaint of sexual harassment, “as far as practicable”, in accordance with the procedure laid down in the Rules. The decision of the Division Bench of the Delhi High Court in Avinash Mishra v. Union of India[32]has been cited to justify the stand of the respondents that the expression “as far as practicable” itself indicates that the Committee is vested with the discretion not to strictly follow the entire procedure as long as the officer charged has been afforded adequate opportunity to explain his stand in respect of the complaint and the relevant material has been disclosed to him.
25. Learned counsel for respondents no. 2 and 3 went on to state that the Committee had afforded adequate opportunities to the appellant to cross-examine the witnesses, produce his witnesses and complete his own deposition but he kept on delaying the proceedings under one pretext or the other. Referring to the Report, she stated that it shows that the Committee had taken note of the detailed reply submitted by the appellant on 25th April, 2009 and had dealt with the same at considerable length. Reliance has also been placed on the decisions of this Court in Hira Nath Mishra and Others v. Principal, Rajendra Medical College, Ranchi and Another[33] and P.D. Agrawal v. State Bank of India and Others[34]to argue that principles of natural justice is not an inflexible doctrine and the facts and circumstances of each case have to be examined to see whether the requirements of natural justice stand satisfied. In the present case, 2014 SCC Online Del 1856 (1973) 1 SCC 805 (2006) 8 SCC 776 having regard to the sensitivity of the matter where no less than seventeen students of the respondent no. 2 – University had submitted complaints of sexual harassment against the appellant, the Committee exercised its discretion by keeping a balance and conducted the proceedings without violating the principles of natural justice, which is amply borne out from a perusal of the Report itself.
26. Learned counsel also refuted the submission made by the other side that failure on the part of the Committee to frame Articles of Charge before conducting the inquiry had caused serious prejudice to the appellant. She submitted that the sum and substance of the complaints were well known to the appellant from the very beginning and all the relevant depositions of the complainants and other witnesses were duly furnished to him. He was afforded ample opportunity to respond to the said complaints, cross-examine the witnesses and produce his own witnesses in defence. Explaining the decision of the respondent no.2 – University to terminate the subsequently constituted inquiry proceedings against the appellant by virtue of the Memorandum dated 8th September, 2009, learned counsel alluded to the order dated 26th April, 2004, passed by this Court in Medha Kotwal’s case (supra), which had clarified that the Complaints Committee as contemplated in Vishaka and Others v. State of Rajasthan and Others[35], will be the Inquiry Authority for the purposes of the CCS (CCA) Rules and the report of the said Committee will be deemed to be an Inquiry Report on which the Disciplinary Authority shall act in accordance with the Rules. It was submitted that the EC (1997) 6 SCC 241 had made a bona fide error by appointing an Inquiry Authority to inquire into the charges framed against the appellant and the said decision to recall the order dated 15th October, 2009 was duly communicated to the appellant on 15th December, 2009. Only thereafter, did the EC issue a fresh Memorandum[36] to the appellant calling upon him to submit his representation on the decision to accept the Report submitted by the Committee and impose on him, a major penalty of dismissal from service.
27. It was thus submitted that no prejudice was caused to the appellant and the Committee had observed the principles of natural justice “as far as was practical”, in the given facts and circumstances of the case. Adequate opportunity was afforded to the appellant not just by the Committee, but also by the Disciplinary Authority and the Appellate Authority before taking any action against him. Therefore, this was not a case of “no opportunity” or “no hearing” but a case of “adequate opportunity” and “fair hearing” afforded to the appellant before imposing a major penalty of dismissal from service on him, as specified in Section 11 (9) of the CCS (CCA) Rules.
28. THE TRIAD : ARTICLES 309, 310 AND 311 OF THE CONSTITUTION OF INDIA
29. Services under the Union and the States are governed under Part XIV of the Constitution. Article 309of the Constitution that provides for recruitment and conditions of service of persons serving the Union or a State, Article 310 that refers to the tenure of office of persons serving the Union or a State and Article 311 that deals with dismissal, dated 17th February, 2010 removal or reduction in rank of persons employed in civil capacities under the Union or a State are inter-linked and “form an integrated whole, there being an organic and thematic unity running through them”[37].

(a) ARTICLE 309: CONDITIONS OF SERVICE

29. Article 309does not by itself provide for recruitment or conditions of service of Government servants, but confers this power on the appropriate legislature to make the laws and on the President and the Government of a State to make rules relating to these matters. The expression “conditions of service” in Article 309 takes in its sweep all those conditions that regulate holding of a post by a person which begins from the time he enters the service till his retirement and even post-retirement, in relation to matters like pension, pending disciplinary proceedings, etc. This expression also includes the right to dismiss such a person from service[38]. A Statute can be enacted by the appropriate Legislature or Rules can be made by the appropriate Executive under Article 309 for prescribing the procedure and the authority who can initiate disciplinary action against a Government servant[39]. It has further been held that any Act or Rule that violates the rights guaranteed to a government servant under Article 311, would be void[40]. Similarly, such an Act or Rule would be treated as void if it violates any of the fundamental rights guaranteed under Part III of the Constitution.

Union of India and Another v. Tulsi Ram Patel, (1985) 3 SCC 398 State of Madhya Pradesh and Others v. Shardul Singh, (1970) 1 SCC 108 Bk. Sardari Lal v. Union of India and Others, (1971) 1 SCC 411 Moti Ram Deka v. The General Manager, North East Frontier Railway, (1964) 5 SCR 683

(b) ARTICLE 310: DOCTRINE OF PLEASURE

30. Article 310embodies the “Doctrine of Pleasure” and in the context of Government servants, relates to their tenure of service. Article 310(1) makes the tenure of Government servants subject to the pleasure of the President or the Governor of a State except as expressly provided for by the Constitution. This Article is analogous to the rights of the Crown in England where all public officers and servants of the Crown are appointed at the pleasure of the Crown and their services can be terminated at will, without assigning any cause[41]. That is the reason why the tenure of the Government servant is subject to the pleasure of the President or the Governor of a State, except as expressly provided for under the Constitution. All members of such services who receive their stipend from the public exchequer, whether at the top of the hierarchy or at the very bottom, are finally answerable to the public and expected to discharge their duties responsibly, efficiently, effectively and above all, for the higher good of the public. It can, therefore, be seen that though the origin of Government servants may be contractual, once appointed to the post or office, they acquire a status and their rights and obligations are no longer determined by the consent of both the parties, but are governed by the Statute or Statutory Rules[42].

Union of India and Another v. Tulsi Ram Patel, (1985) 3 SCC 398 Roshan Lal Tandon v. Union of India, (1968) 1 SCR 185 

(c) ARTICLE 311 : A MANIFESTATION OF THE PRINCIPLES OF NATURAL JUSTICE

31. This Court has held that in matters of dismissal, removal or reduction in rank of public servants, Article 311of the Constitution is a manifestation of the essential principles of natural justice. It imposes a duty on the Government to ensure that any such decision against the public servant is preceded by an inquiry that contemplates an opportunity of hearing to be granted to the public servant, who is also entitled to make a representation against such a decision[43]. Article 311 reads as under :

“311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.—(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply—

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.” Nisha Priya Bhatia v. Union of India and Another, (2020) 13 SCC 56 

32. To provide a sense of security of tenure to Government servants, the Framers of the Constitution have incorporated safeguards in respect of the punishment or dismissal or removal or reduction in their rank as provided for in Clauses (1) and (2) of Article 311.At the same time, being mindful of the very same public interest and public good which does not permit that Government servants found to be corrupt, dishonest or inefficient be continued in service, a remedy is provided under the second proviso to Clause (2) of Article 311 whereunder their services can be dispensed with, without conducting a disciplinary inquiry.
33. Thus, the golden thread that weaves through Articles 309, 310 and 311 is public interest, directed towards larger public good. Together, they form a triad and symbolize the overarching Doctrine of Public Policy.
34. ARTICLE 14 :BEDROCK OF THE PRINCIPLES OF NATURAL JUSTICE
35. Principles of natural justice that are reflected in Article 311, are not an empty incantation. They form the very bedrock of Article 14and any violation of these principles tantamounts to a violation of Article 14 of the Constitution. Denial of the principles of natural justice to a public servant can invalidate a decision taken on the ground that it is hit by the vice of arbitrariness and would result in depriving a public servant of equal protection of law.
36. Article 14, often described as the ‘Constitutional Guardian’ of the principles of natural justice, expressly forbids the State, as defined in Article 12, from denying to any person, equality before the law or equal protection of the laws. Article 14provides an express guarantee of equality before the law to all persons and extends a protection to them against discrimination by any law. Article 13(3)(a) defines law to include any ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India, the force of law. Thus, principles of natural justice guaranteed under Article 14, prohibit a decision-making adjudicatory authority from taking any arbitrary action, be it substantive or procedural in nature. These principles of natural justice, that are a natural law, have evolved over a period of time and been continuously refined through the process of expansive judicial interpretation.
37. THE TWIN ANCHORS : NEMO JUDEX IN CAUSA SUA AND AUDI ALTERAM PARTEM
38. The twin anchors on which the principles of natural justice rest in the judicial process, whether quasi-judicial or administrative in nature, are Nemo Judex In Causa Sua, i.e., no person shall be a judge in his own cause as justice should not only be done, but should manifestly be seen to be done and Audi Alteram Partem, i.e. a person affected by a judicial, quasi-judicial or administrative action must be afforded an opportunity of hearing before any decision is taken.
39. How deeply have Courts internalised and incorporated the principles of natural justice into the Constitution can be perceived from the seven Judge Bench decision in the case of Maneka Gandhi v. Union of India and Another[44]. In this case, where a challenge was laid to the order of impounding the passport of the appellant, which was (1978) 1 SCC 248 silent on the reasons for such an action and the respondent–State had declined to furnish the reason therefor, it was held that life and liberty of a person cannot be restricted by any procedure that is established by law, but only by procedure that is just, fair and reasonable. Quoting the audi alteram partem rule and equating it with “fair play in action”, Justice P.N. Bhagwati (as he then was) had authored the judgment for the majority and had observed that:

“14. ……The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise. That is why Tucker, L.J., emphasised in Russel v. Duke of Norfolk[45] that “whatever standard of natural justice is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case”. What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. It may be a sophisticated full-fledged hearing or it may be a hearing which is very brief and minimal : it may be a hearing prior to the decision or it may even be a post- decisional remedial hearing. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations which may arise……….”

38. In the captioned case, citing the judgment of a Constitution Bench of this Court in Rustom Cavasjee Cooper v. Union of India[46], wherein it was held that fundamental rights are not a water tight compartment, the Court observed as under:-

“The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14” The emphasis was on the Court‘s attempt to expand the reach and ambit of the fundamental rights guaranteed in the Constitution rather than attenuate their meaning 1949 1 ALL ER 109 (1970) 1 SCC 248 and content by a process of judicial construction. Relying on the minority judgment rendered by Justice Fazal Ali in the case of A.K. Gopalan v. State of Madras[47], this Court went on to hold in Maneka Gandhi’s case (supra) that the procedure required to be prescribed under Article 21 must include four essentials namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. It was observed that even on principle, having regard to the impact of Article 14 on Article 21, the concept of reasonableness must be projected in the procedure contemplated by Article 21.

39. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Others[48], a five-Judge Bench of this Court highlighted how essential it is to afford a reasonable opportunity to an employee to put forth his case in a domestic inquiry and the requirement of an employer to comply with the principles of natural justice and fair play, in the following words :

“202. ……It is now well settled that the ‘audi alteram partem’ rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurally.…… Rule of law posits that the power is to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination……

 [emphasis added]

 xxx xxx xxx

316. Thus it could be held that Article 14read with Article 16(1)accords right to an equality or an equal treatment consistent with the principles of natural justice. Any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly, justly and reasonably. Right to fair treatment is an essential inbuilt of natural justice. Exercise of unbridled and uncanalised discretionary power impinges upon the right of the citizen; vesting of discretion is no wrong provided it is exercised purposively judiciously and without prejudice. Wider the discretion, the greater the chances of abuse. Absolute discretion is destructive of freedom than of man’s other inventions. Absolute discretion marks the beginning of the end of the liberty. The conferment of absolute power to dismiss a permanent employee is antithesis to justness or fair treatment. The exercise of discretionary power wide off the mark would breed arbitrary, unreasonable or unfair actions and would not be consistent with reason and justice. The provisions of a statute, regulations or rules that empower an employer or the management to dismiss, remove or reduce in rank of an employee, must be consistent with just, reasonable and fair procedure. It would, further, be held that right to public employment which includes right to continued public employment till the employee is superannuated as per rules or compulsorily retired or duly terminated in accordance with the procedure established by law is an integral part of right to livelihood which in turn is an integral facet of right to life assured by Article 21 of the Constitution. Any procedure prescribed to deprive such a right to livelihood or continued employment must be just, fair and reasonable procedure. In other words an employee in a public employment also must not be arbitrarily, unjustly and unreasonably be deprived of his/her livelihood which is ensured in continued employment till it is terminated in accordance with just, fair and reasonable procedure. Otherwise any law or rule in violation thereof is void.” [emphasis added]
317. The significant role played by procedural fairness in the backdrop of internalising the principles of natural justice into the Constitution cannot be overstated. This aspect has been highlighted by a Division Bench of this Court of which one of us, [Hima Kohli, J], was a member, in Madhyamam Broadcasting Limited v. Union of India & Others[49]. Speaking for the Bench, Chief Justice D. Y. Chandrachud stated :

“53. The judgment of this Court in Maneka Gandhi (supra) spearheaded two doctrinal shifts on procedural fairness because of the constitutionalising of natural justice. Firstly, procedural fairness was no longer viewed merely as a means to secure a just outcome but a requirement that holds an inherent value in itself. In (2023) SCC Online 366 view of this shift, the Courts are now precluded from solely assessing procedural infringements based on whether the procedure would have prejudiced the outcome of the case. Instead, the courts would have to decide if the procedure that was followed infringed upon the right to a fair and reasonable procedure, independent of the outcome. In compliance with this line of thought, the courts have read the principles of natural justice into an enactment to save it from being declared unconstitutional on procedural grounds. Secondly, natural justice principles breathe reasonableness into the procedure. Responding to the argument that the principles of natural justice are not static but are capable of being moulded to the circumstances, it was held that the core of natural justice guarantees a reasonable procedure which is a constitutional requirement entrenched in Articles 14, 19 and 21. The facet of audi alterum partem encompasses the components of notice, contents of the notice, reports of inquiry, and materials that are available for perusal. While situational modifications are permissible, the rules of natural justice cannot be modified to suit the needs of the situation to such an extent that the core of the principle is abrogated because it is the core that infuses procedural reasonableness. The burden is on the applicant to prove that the procedure that was followed (or not followed) by the adjudicating authority, in effect, infringes upon the core of the right to a fair and reasonable hearing.”

– [emphasis supplied]

41. In A.K. Kraipak and Others v. Union of India and Others[50]quoting with approval the judgment In re: H.K. (All Infant)[51], this Court held that :

“20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules nameny: (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries.

Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in (1969) 2 SCC 262 (1967) 1 All ER 226 character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries. An unjust decision in an administrative inquiry may have more far reaching effect than a decision in a quasi- judicial inquiry……….” – [Emphasis supplied]

1. FAIR ACTION AND IMPARTIALITY IN SERVICE JURISPRUDENCE:
2. In the context of service law, it is, therefore mandatory to afford a Government servant or an employee, a reasonable opportunity of being heard before an order is passed. In Mangilal v. State of M.P.[52], this Court declared that even if a Statute is silent and there are no positive words in the Act or the Rules made thereunder, principles of natural justice must be observed. This is what the Court has held:

“10….Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment. (See Swadeshi Cotton Mills v. Union of India[53] ) Its aim is to secure justice or to prevent miscarriage of justice. Principles of natural justice do not supplant the law, but supplement it. These rules operate only in areas not covered by any law validly made. They are a means to an end and not an end in themselves…..”

43. In Tulsiram Patel’s case (supra), observing that violation of the rules of natural justice would result in arbitrariness which would amount to discrimination, the Constitution Bench made the following observations:

“95. The principles of natural justice have thus come to be recognized as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14:

(2004) 2 SCC 447 (1981) 1 SCC 664 therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of State in Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially.

96. The rule of natural justice with which we are concerned in these appeals and writ petitions, namely, the audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross- examine them, and to lead his own evidence, both oral and documentary, in his defence. The process of a fair hearing need not, however, conform to the judicial process in a Court of law, because judicial adjudication of causes involves a number of technical rules of procedure and evidence which are unnecessary and not required for the purpose of a fair hearing within the meaning of audi alteram partem rule in a quasi-judicial or administrative inquiry. If we look at clause (2) of Article 311in the light of what is stated above, it will be apparent that that clause is merely an express statement of the audi alteram partem rule which is implicitly made part of the guarantee contained in Article 14as a result of the interpretation placed upon that article by recent decisions of this Court. Clause (2) of Article 311requires that before a government servant is dismissed, removed or reduced in rank, an inquiry must be held in which he is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges…….”

– [emphasis supplied] At the same time, a note of caution was added in the captioned case and the Court observed that the rules of natural justice are neither statutory rules nor are they cast in stone. They are flexible and can be adapted and modified by statutes, depending on the exigencies of different situations, the facts and circumstances of the case and the framework of the law[54].

Also refer : A.K.Kraipak and others v. Union of India and Others, (1969) 2 SCC 262 and Union of India v. Col. J.N. Sinha and Another, (1970) 2 SCC 458 

44. In Swadeshi Cotton Mills v. Union of India[55], in his dissenting judgment, Justice O. Chinnappa Reddy, had made the following pertinent observations :-

“106. The principles of natural justice have taken deep root in the judicial conscience of our people, nurtured by Dr. Bina pani[56], A.K. Kraipak[57], Mohinder Singh Gill[58], Maneka Gandhi[59]. They are now considered so fundamental as to be “implicit in the concept of ordered liberty and, therefore, implicit in every decision- making function, call it judicial, quasi-judicial or administrative. Where authority functions under a statute and the statute provides for the observance of the principles of natural justice in a particular manner, natural justice will have to be observed in that manner and in no other. No wider right than that provided by statute can be claimed nor can the right be narrowed. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice. The implication of natural justice being presumptive it may be excluded by express words of statute or by necessary intendment. Where the conflict is between the public interest and the private interest, the presumption must necessarily be weak and may, therefore, be readily displaced……”

– [emphasis supplied]

45. Thus, ordinarily, courts interpret statutory provisions in sync with the aforesaid principles of natural justice on a premise that no statutory authority would violate the fundamental rights enshrined in the Constitution. When it comes to authorities that are expected to discharge judicial and quasi-judicial functions, the rule of audi alteram partem applies with equal force. Reasonableness infuses lifeblood in procedural matters, be it elements of the notice, the contents of the notice, the scope of inquiry, the material available or an adequate opportunity to rebut such material. All of this is to avoid(1981) 1 SCC 664 AIR 1967 SC 1269 (1969) 2 SCC 262 (1978) 1 SCC 405 (1978) 1 SCC 248 miscarriage of justice at any stage. This is of course fluid and subject to adapting to the demands of a situation in the given facts of a case.
46. THE STATUTORY REGIME

(a) GOA UNIVERSITY STATUTE

46. In the above background, we may now proceed to examine the relevant Rules that govern the conditions of service of the appellant herein. The Statutory regime in respect of teachers employed in the respondent no. 2 – University is governed by the Goa University Statute SSB-1 (XXVI). SC-6(i) of the Statute contemplates as follows– “For disciplinary and departmental action, the teachers shall be governed under the CCS (CCA) Rules, 1965, Fundamental Rules and Supplementary Rules as applicable to the employees of the Goa Government”.

(b) CCS (CCA) RULES :

47. The CCS (CCA) Rules mentioned above, have been enacted by the President of India in exercise of the powers conferred by the proviso to Article 309and Clause 5 of Article 148 of the Constitution of India. Part VI of the CCS (CCA) Rules lays down the procedures for imposing penalties. Rule 3(C) has been incorporated in the CCS (CCA) Rules vide GSR 49 dated 7th March, 1998 and subsequently, vide GSR 823 (E) dated 19th November, 2014. The said provision states as follows: –

“3C. Prohibition of sexual harassment of working women (1) No Government servant shall indulge in any act of sexual harassment of any women at any work place.

(2) Every Government servant who is incharge of a work place shall take appropriate steps to prevent sexual harassment to any woman at the work place.

Explanation – (1) For the purpose of this rule –

(a) “sexual harassment” includes any one or more of the following acts or behaviour (whether directly or by implication), namely – 

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.”

(c) PRAGMATIC APPLICATION OF THE “AS FAR AS IS PRACTICABLE” RULE

48. Rule 14 of the CCS (CCA) Rules stipulates the procedure for imposing major penalties and is extracted below :

“14. Procedure for imposing major penalties (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.

(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.

Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed- to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.”

– [emphasis supplied]

49. As can be seen from the above, when the misconduct relates to a complaint of sexual harassment at the work place, the Complaints Committee constituted by the respondent no.2-University to examine such a complaint, dons the mantle of the inquiring authority and is expected to conduct an inquiry in accordance with the procedure prescribed in the rules, as far as may be practicable. The use of the expression “as far as is practicable” indicates a play in the joints available to the Complaints Committee to adopt a fair procedure that is feasible and elastic for conducting an inquiry in a sensitive matter like sexual harassment at the workplace, without compromising on the principles of natural justice. Needless to state that the fact situation in each case will vary and therefore no set standards or yardstick can be laid down for conducting the inquiry in complaints of this nature. However, having regard to the serious ramifications with which the delinquent employee may be visited at the end of the inquiry, any discordant note or unreasonable deviation from the settled procedures required to be followed, would however strike at the core of the principles of natural justice, notwithstanding the final outcome.
50. JOURNEY FROM “VISHAKA” CASE TO THE PoSH ACT

(a) VISHAKA GUIDELINES : FILLING IN THE VACUUM :

48. The occasion to amend Rule 14 (2) of the CCS (CCA) Rules and append a proviso thereto was a direct consequence of judicial intervention by this Court in the case of Vishaka (supra), where the powers vested under Article 32of the Constitution of India were exercised by a three-Judge Bench to enforce the fundamental rights of women to “gender equality and right to life and liberty”, bestowed under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India. Treating a set of writ petitions filed by some social activists and NGOs, who were agitating the brutal gang rape of a social worker in a village of Rajasthan as a class action, this Court worked towards filling in the vacuum in the existing legislation. Noting the absence of any Statute enacted to provide for effective enforcement of the basic human right of gender equality and guarantee against sexual abuse, particularly against sexual harassment at work places, the Court drew strength from several provisions of the Constitution of India including Article 15[60], Article 42[61] and Article 51(A)[62] and with the aid of the relevant International Conventions and norms including the General Recommendations of the CEDAW[63] that had passed a Resolution on 25th June, 1993, resolving that an effective complaint mechanism be put in place to address sexual harassment in the work place, laid down a set of Guidelines and norms with a direction that they would be strictly adhered to at all work places and shall be binding and enforceable in law till the vacuum was filled and a legislation was enacted to occupy the field. The Guidelines directed creation of a complaints mechanism to ensure time bound treatment of complaints, constitution of a Complaints Committee and recommended, disciplinary action where such conduct amounted to misconduct in employment ‘as defined by the relevant service rules’. The momentous judgment in Vishaka’s case (supra) was delivered on 13th August,1997 and the Guidelines declared by the Court continued to hold the field till the Sexual Harassment of Women at Article 15: The State shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth of any of them.

Article 42: The State shall make provisions for securing just and humane conditions of work and for maternity relief.

Article 51(A): (e) ……. It shall be the duty of every citizen of India to, amongst others, renounce practices derogatory to the dignity of women.

The Convention on the Elimination of All Forms of Discrimination Against Women Workplace (Prevention, Prohibition and Redressal) Act, 2013[64] was enacted on 22nd April, 2013.

(b) MEDHA KOTWAL LELE’S CASE : FOLLOW UP THROUGH CONTINUING MANDAMUS :

49. After Vishaka’s case (supra), came the case of Medha Kotwal Lele and Others v. Union of India and Others[65](supra) where a grievance was raised by several petitioners that the Complaints Committees directed to be constituted in terms of the Guidelines laid down by this Court, had not been established to deal with cases of sexual harassment. Treating the said petition as a Public Interest Litigation, notices were issued to several parties including the Union of India and the State Governments and the following directions were issued :

“2……“Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka case SCC at para 53, will be deemed to be an inquiry authority for the purposes of the Central Civil Services (Conduct) Rules, 1964 (hereinafter called the CCS Rules) and the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the Rules.” A similar amendment was also directed to be carried out in the Industrial Employment (Standing Orders) Rules.

For short ‘PoSH Act’ (2013) 1 SCC 311 

50. On 17th January, 2006, in the very same case of Medha Kotwal Lele[66], noting that there was no information available regarding implementation of the directions issued in Vishaka’s case (supra), this Court issued the following directions :

“2. It is not known whether the committees as suggested in Vishaka case have been constituted in all the departments/institutions having members of staff of 50 and above and in most of the district-level offices in all the States, members of the staff working in some offices would be more than 50. It is not known whether the committees as envisaged in Vishaka case have been constituted in all these offices. The number of complaints received and the steps taken in these complaints are also not available. We find it necessary to give some more directions in this regard:

2.1. We find that in order to coordinate the steps taken in this regard, there should be a State-level officer i.e. either the Secretary of the Women and Child Welfare Department or any other suitable officer who is in charge and concerned with the welfare of women and children in each State. The Chief Secretaries of each State shall see that an officer is appointed as a nodal agent to collect the details and to give suitable directions whenever necessary.

2.2. As regards factories, shops and commercial establishments are concerned, the directions are not fully complied with. The Labour Commissioner of each State shall take steps in that direction. They shall work as nodal agency as regards shops, factories and commercial establishments are concerned. They shall also collect the details regarding the complaints and also see that the required committee is established in such institutions.”

51. Exercising its powers of a writ of continuing mandamus, the aforesaid petition was again taken up after the passage of over six years, on 19th October, 2012[67] when this Court examined the affidavits filed by each State Government to satisfy itself on the compliance of the Guidelines laid down in Vishaka’s case (supra). On examining the position regarding amendments required to be carried out in the CCS(CCA) Rules and the Standing Orders as also the establishment and composition of the Complaints (2013) 1 SCC 312 (2013) 1 SCC 297 Committees, the Court noted with great dismay that several State Governments had failed to make compliances. Extracted below are the observations made in this regard:

“43. As the largest democracy in the world, we have to combat violence against women. We are of the considered view that the existing laws, if necessary, be revised and appropriate new laws be enacted by Parliament and the State Legislatures to protect women from any form of indecency, indignity and disrespect at all places (in their homes as well as outside), prevent all forms of violence— domestic violence, sexual assault, sexual harassment at the workplace, etc.—and provide new initiatives for education and advancement of women and girls in all spheres of life. After all they have limitless potential. Lip service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough for true and genuine upliftment of our half most precious population—the women.

44. In what we have discussed above, we are of the considered view that guidelines in Vishaka should not remain symbolic and the following further directions are necessary until legislative enactment on the subject is in place:

44.1. The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules (by whatever name these Rules are called) shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Services Conduct Rules. In other words, the disciplinary authority shall treat the report/findings, etc. of the Complaints Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent.

44.2. The States and Union Territories which have not carried out amendments in the Industrial Employment (Standing Orders) Rules shall now carry out amendments on the same lines, as noted above in para 44.1 within two months.

44.3. The States and Union Territories shall form adequate number of Complaints Committees so as to ensure that they function at taluka level, district level and State level. Those States and/or Union Territories which have formed only one committee for the entire State shall now form adequate number of Complaints Committees within two months from today. Each of such Complaints Committees shall be headed by a woman and as far as possible in such committees an independent member shall be associated.

44.4. The State functionaries and private and public sector undertakings/organisations/ bodies/institutions, etc. shall put in place sufficient mechanism to ensure full implementation of Vishaka guidelines and further provide that if the alleged harasser is found guilty, the complainant victim is not forced to work with/under such harasser and where appropriate and possible the alleged harasser should be transferred. Further provision should be made that harassment and intimidation of witnesses and the complainants shall be met with severe disciplinary action.

44.5. The Bar Council of India shall ensure that all Bar Associations in the country and persons registered with the State Bar Councils follow Vishaka guidelines. Similarly, the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and other statutory institutes shall ensure that the organisations, bodies, associations, institutions and persons registered/affiliated with them follow the guidelines laid down by Vishaka. To achieve this, necessary instructions/circulars shall be issued by all the statutory bodies such as the Bar Council of India, Medical Council of India, Council of Architecture, Institute of Company Secretaries within two months from today. On receipt of any complaint of sexual harassment at any of the places referred to above the same shall be dealt with by the statutory bodies in accordance with Vishaka and Others v. State of Rajasthan and Others (1997) 6 SCC 241, guidelines and the guidelines in the present order.”

(c) ENACTMENT OF THE PoSH ACT AND RULES :

52. After the passage of fifteen years from the date of the verdict delivered in Vishaka’s case (supra), the PoSH Act, was legislated on 22nd April, 2013 and finally notified on 9th December, 2013. The Actlays down a comprehensive mechanism for constitution of Internal Complaints Committee, Local Committee and Internal Committees, the manner of conducting an inquiry into a complaint received, duties of an employer, duties and powers of the District Officer and others, penalties for non- compliance of the provisions of the Act, etc. Accompanying the Act are the Rules, 2013[68] that have been framed in exercise of powers conferred under Section 29 of the PoSH Act and amongst others, lays down the manner in which an inquiry into a complaint of sexual harassment ought to be conducted (Rule 7), the interim reliefs that can be extended to the aggrieved women during the pendency of the inquiry (Rule 8), the manner of taking action for sexual harassment (Rule 9) etc. It is noteworthy that sub-rule (3) of Rule 7 The Sexual Harassment of Women at Work Pace (Prevention, Prohibition and Redressal) Act, 2013 provides that the respondent shall file his reply to the complaint within a stipulated time along with the relevant documents and give details of the witnesses and sub-rule (4) stipulates that the Complaints Committee shall make an inquiry into the complaints “in accordance with the principles of natural justice”.

(d) BREATHING REASONABLENESS INTO THE PROCEDURAL REGIME :

53. Thus, it can be seen that the journey from Vishaka’s case (supra) that acted as a springboard and sowed the seeds of future legislation by structuring Guidelines to deal with cases of sexual harassment, blossomed into a comprehensive legislation with the enactment of the PoSH Act and Rules. At the same time, however, women centric the Guidelines and the Act may have been, they both recognize the fact that any inquiry into a complaint of sexual harassment at the workplace must be in accordance with the relevant rules and in line with the principles of natural justice. The cardinal principle required to be borne in mind is that the person accused of misconduct must be informed of the case, must be supplied the evidence in support thereof and be given a reasonable opportunity to present his version before any adverse decision is taken. Similarly, the concerned employer is also expected to act fairly and adopt a procedure that is just, fair and reasonable. The whole purpose is to breathe reasonableness into the procedural regime. But, the test of reasonableness cannot be abstract. It has to be pragmatic and grounded in the realities of the facts and circumstances of a case. When conducting an inquiry, it is the duty of the Inquiring Authority to proceed in a manner that is visibly free from the taint of arbitrariness, unreasonableness or unfairness. An inquiry that can culminate into imposition of a major penalty like termination of service of an employee, must doubly conform to a just, fair and reasonable procedure. Any displacement of the principles of natural justice can only be in exceptional circumstances, as contemplated in the proviso to Article 311(2)of the Constitution of India and not otherwise. Wherever the rules are silent, principles of natural justice must be read into them and a hearing be afforded to the person who is proposed to be punished with a major penalty[69].
54. The four predominant purposes sought to be achieved by reading the principles of natural justice into law and into the conduct of judicial and administrative proceedings to achieve the underlying object of securing fairness have been concisely expressed by this Court as an assurance of a fair outcome by following the procedural Rules, an assurance of equality in the proceedings, legitimacy of the decision and decision- making authority thereby preserving the integrity of the system and finally, with the idea of preserving the dignity of individuals where citizens are treated with respect and the dignity they deserve in a society governed by the Rule of Law[70].
55. ANALYSIS AND DISCUSSION :
56. In the present case, the incidents in question relate to the period when the Vishaka Guidelines were in place and it had been clarified in Medha Kotwal Lele (supra) that the Complaints Committee will be deemed to be an inquiry authority for the State Bank of India and Others v. Ranjit Kumar Chakraborty and Another, (2018) 12 SCC 807 Madhyamam Broadcasting Limited v. Union of Indiadecided on 5th April 2023 purposes of the CCS Rules. Keeping this in mind, we may now proceed to ascertain as to whether the procedure adopted by the respondents No. 2 and 3 herein violated the principles of natural justice and thereby caused prejudice to the appellant, as has been alleged, for this Court to interfere in the impugned judgment.

(a) SCOPE OF INTERFERENCE BY THE HIGH COURT IN JUDICIAL REVIEW :

56. It may be clarified at the outset that to satisfy itself that no injustice has been meted out to the appellant, the High Court was required to examine the decision-making process and not just the final outcome. In other words, in exercise of powers of judicial review, the High Court does not sit as an Appellate Authority over the factual findings recorded in the departmental proceedings as long as those findings are reasonably supported by evidence and have been arrived at through proceedings that cannot be faulted on account of procedural illegalities or irregularities that may have vitiated the process by which the decision was arrived at.
57. The purpose of judicial review is not only to ensure that the individual concerned receives fair treatment, but also to ensure that the authority, after according fair treatment, reaches, a conclusion, which is correct in the eyes of law[71]. Notably, in Apparel Export Promotion Council vs. A.K. Chopra, a matter related to sexual harassment at the workplace[72] where, aggrieved by the decision taken by the Disciplinary Authority of accepting the report of the Inquiry Officer and removing the 71 (1999) 1 SCC 759 72 Chief Constable of the North Wales Police v. Evans, (1982) 3 ALL ER 141 HL. Also refer : C. Chaturvedi v. Union of India, (1995) 6 SCC 749. respondent therein from service on the ground that he had tried to molest a lady employee, this Court had set aside the order of the High Court that had narrowly interpreted the expression “sexual harassment” and held that in departmental proceedings, the Disciplinary Authority is the sole judge of facts and once findings of fact, based on appreciation of evidence are recorded, the High Court in its writ jurisdiction should not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The Court is under a duty to satisfy itself that an inquiry into the allegations of sexual harassment by a Committee is conducted in terms of the service rules and that the concerned employee gets a reasonable opportunity to vindicate his position and establish his innocence[73].

(b) EXTENT OF ADHERENCE TO THE “AS FAR AS PRACTICABLE” NORM

58. Assuming as correct, the submission made by learned counsel for the respondents no.2 and 3 that the Committee was not bound to strictly follow a step by step procedure for conducting an inquiry having due regard to the proviso to Rule 14(2) of the CCS (CCA) Rules that permits a Committee to enquire into a complaint of sexual harassment ‘as far as practicable’, in accordance with the procedure laid down in the Rules, the question that would still beg an answer is  Vijaykumaran C.P.V. v. Central University of Kerala and Others, (2020) 12 SCC 426 whether the inquiry conducted by the Committee in the instant case, would meet the ‘as far as practicable’ norm?
59. Rule 14 prescribes the procedure required to be followed for conducting an inquiry by a Public Authority which entails issuance of a charge sheet, furnishing details of the Articles of Charge, enclosing statements of imputations in respect of each article of charge, forwarding of a list of witnesses and the documents sought to be relied upon by the Management/employer. The said procedure may not have been strictly followed by the Committee in the present case, but it is not in dispute that all the complaints received from time to time and the depositions of the complainants were disclosed to the appellant. He was, therefore, well aware of the nature of allegations levelled against him. Not only was the material proposed to be used against him during the inquiry furnished to him, he was also called upon to explain the said material by submitting his reply and furnishing a list of witnesses, which he did. Furthermore, on perusing the Report submitted by the Committee, it transpires that depositions of some of the complainants were recorded audio- visually by the Committee, wherever consent was given and the appellant was duly afforded an opportunity to cross-examine the said witnesses including the complainants. The charges levelled by all the complainants were of sexual harassment by the appellant with a narration of specific instances. Therefore, in the given facts and circumstances, non-framing of the Articles of Charge by the Committee cannot be treated as fatal. Nor can the appellant be heard to state that he was completely in the dark as to the nature of the allegations levelled against him and was not in a position to respond appropriately. So far, so good.

(c) THE COMMITTEE’S UNDERSTANDING OF ITS MANDATE :

60. As noted above, when the Registrar of the respondent No. 2–University addressed a letter to the Chairperson of the Committee, he forwarded nine complaints of sexual harassment that had been received by the Vice Chancellor of the University. The process of the inquiry was set into motion on 17th March 2009 when the appellant was informed that on receiving complaints of sexual harassment against him, the Committee had conducted a preliminary verification of the complaints by recording the statements of the concerned students. Till then, no specific Articles of Charge were framed by the Committee and no imputation of charges were forwarded to the appellant. At the same time, copies of all the complaints received and the statements recorded were forwarded directly to the appellant calling upon him to explain the charges levelled against him.
61. The plea of the appellant that the Committee understood the remit of its inquiry as a ‘fact-finding proceeding’, can be discerned from the contents of the letters dated 17th March 2009 and 20th April 2009 addressed to the appellant. The impression carried by the Committee that it was only required to submit a fact- finding report to the University was no different for the EC as is borne out from a perusal of the Memorandum dated 8th September 2009, issued by the Chairman of the EC who, after receiving the Committee’s Report, informed the appellant that an inquiry was proposed to be conducted against him under Rule 14 of the CCS (CCA) Rules. This was the first time when the respondents informed the appellant that the EC had decided to follow the procedure prescribed under the rules of drawing up a Statement of Articles of Charge, imputation of misconduct in support of each Article of Charge and other documents and had granted the appellant time to submit his reply in defence. The appellant did submit a reply. But it is an admitted position that the said inquiry proceedings were aborted at the initial stage itself and it was the Report of the Committee submitted earlier, that was acted upon by the EC in terms of a decision taken on 28th January 2010. We are of the opinion that when the Committee itself was unclear as to the scope of its inquiry, the appellant cannot be blamed for harbouring an impression that the remit of the Committee was confined to fact finding alone and it was not discharging the functions of a disciplinary committee, as contemplated under the service Rules.

(d) WHIRLWIND PROCEEDINGS

62. On examining the records, it emerges that the point at which the Committee fell into an error was when it attempted to fast forward the entire proceedings after the first few hearings and declined to grant a reasonable time to the appellant to effectively participate in the said proceedings. It is noteworthy that the proceedings of the Committee had commenced on 16th April 2009 and stood concluded on 5th June, 2009. During this period, 18 meetings were conducted by the Committee. Following is the month-wise details of the dates on which the meetings of the Committee were conducted :

(i) April 2009 – On 16th,27th and 29th

(ii) May 2009 – On 6th,12th,13th,14th,19th,20th, 22nd,23rd,25th,27th,28th and 29th

(iii) June, 2009 – On 3rd,4th and 5th

63. It is also noteworthy that the time span prescribed under the CCS (CCA) Rules for concluding an inquiry is ordinarily within a period of six months from the date of receipt of the order of appointment. But, here, the entire process was wrapped up in flat 39 days. This shows the tearing hurry in which the Committee was to submit its Report. One such glaring instance of the over anxiety to conclude the proceedings is apparent from the letter dated 5th May 2009, addressed by the Committee to the appellant informing him that the next date for filing his reply and for recording further depositions was 12th June 2009. Surprisingly, on the very next day, the Committee issued yet another letter advancing the said dates by claiming that an error had crept into the previous letter and informing the appellant that the date for filing his reply should be read as ‘12th May 2009’ and the date for recording further depositions should be read as ‘14th May, 2009’, thus moving the dates back by a whole month. Another egregious example of the hurry and scurry shown by the Committee can be gathered from the fact that on 20th May 2009, the Committee had written to the appellant giving him a last opportunity to present himself on 20th May 2009, not only to complete his deposition, but also to cross- examine the complainants and other witnesses. Simultaneously, the Committee forwarded six more depositions to the appellant and directed him to furnish his reply within 48 hours i.e. by 22nd May, 2009.
64. Even if this Court was to accept the submission made by learned counsel for the respondents that the appellant was offering flimsy excuses to somehow prolong the proceedings and the health ground taken by him was not genuine, it does not explain the approach of the Committee which was well aware of the fact that at least six more depositions had been handed over to the appellant as late as on 20th May 2009. Even if he had been hale and hearty, he would still have required a reasonable time to respond to the additional depositions and simultaneously, prepare himself for cross-examining the complainants and completing his deposition. This can only be termed as an unreasonable and unfair direction by the Committee.
65. The undue haste demonstrated by the Committee for bringing the inquiry to a closure, cannot justify curtailment of the right of the appellant to a fair hearing. The due process, an important facet of the principles of natural justice was seriously compromised due to the manner in which the Committee went about the task of conducting the inquiry proceedings. As noted above, when the proceedings, subject matter of the present appeal had taken place, the PoSH Act was nowhere on the horizon and the field was occupied by the Vishaka Guidelines. The said Guidelines also did not exclude application of the principles of natural justice and fair play in making procedural compliances. The silence in the Guidelines on this aspect could not have given a handle to the Committee to bypass the principles of natural justice and whittle down a reasonable opportunity of affording a fair hearing to the appellant. This Court has repeatedly observed that even when the rules are silent, principles of natural justice must be read into them. In its keen anxiety of being fair to the victims/complainants and wrap up the complaints expeditiously, the Committee has ended up being grossly unfair to the appellant. It has completely overlooked the cardinal principle that justice must not only be done, but should manifestly be seen to be done. The principles of audi alterem partem could not have been thrown to the winds in this cavalier manner.

(e) HOW DID THE EXECUTIVE COUNCIL FALTER?

66. The error committed on the part of the EC, is no less grave. It is apparent that the EC continued to remain under an impression that the First Committee to which the complaints were forwarded, was only a ‘fact-finding Committee’ and that a full-fledged inquiry was still required to be conducted subsequently, in the manner prescribed under Rule 14 of the CCS (CCA) Rules. The result was that though the Report of the First Committee was accepted and the EC proceeded to place the appellant under suspension, for the very first time, it decided to issue him Memorandum detailing the Articles of Charge and the imputation of charges and further appointed a Former Judge of the High Court as an Inquiry Officer to conduct the inquiry in terms of the Rules. Respondent Nos. 2 and 3 got wiser only when the said proceedings commenced and the Inquiry Officer was appraised of the directions issued in Medha Kotwal’s case where it had been clarified by this Court that the Complaints Committee contemplated in Vishaka’s case (supra), will be deemed to be an Inquiry Authority for the purposes of the CCS (Conduct) Rules and its report shall be deemed to be a Report under the CCS (CCA) Rules.
67. When the employer itself was oblivious to the remit of the Committee and the Committee remained under the very same impression having described its proceedings as fact-finding in nature, it was all the more incumbent for the respondents to have paused on receiving the Report of the First Committee and verify the legal position before taking the next step. In all this back and forth, it was the procedure prescribed under Rule 14 for conducting an inquiry of sexual harassment at the workplace that came to be sacrificed at the alter of expeditious disposal, which can neither be justified nor countenanced.
68. The intent and purpose of the proviso inserted in Rule 14(2) of CCS (CCA) Rules and Rule 3C of CCS (Conduct) Rules is that the procedure required to be adopted for conducting an inquiry into the complaint of sexual harassment that can lead to imposition of a major penalty under the Rules, must be fair, impartial and in line with the Rules. Pertinently, the emphasis on adhering to the principles of natural justice during an inquiry conducted by a Complaints Committee finds specific mention in Rule 7(4) of the subsequently enacted Rules of 2013. But the spirit behind the due process could never be suppressed or ignored even in the absence of the Statute or the Rules inasmuch as the principles of natural justice is the very essence of the decision-making process and must be read into every judicial or even a quasi-judicial proceeding.
69. This is not to say that the Committee even if described as an Inquiring authority, by virtue of the ruling in Medha Kotwal’s case (supra) and required to follow the procedure prescribed under Rule 14, was expected to conduct the inquiry as if it was a full-fledged trial. The expression used in the proviso to Rule 14(2), ‘as far as practicable’ has to be read and understood in a pragmatic manner. In any such proceedings initiated by the Disciplinary Authority, a calibrated balance would have to be struck between the rights of a victim of sexual harassment and those of the delinquent employee. At the same time, fairness in the procedure would have to be necessarily adopted in the interest of both sides. After all, what is sauce for the goose, is sauce for the gander.
70. CONCLUSION
71. In the instant case, though the Committee appointed by the Disciplinary Authority did not hold an inquiry strictly in terms of the step-by-step procedure laid down in Rule 14 of the CCS (CCA) Rules, nonetheless, we have seen that it did furnish copies of all the complaints, the depositions of the complainants and the relevant material to the appellant, called upon him to give his reply in defence and directed him to furnish the list of witnesses that he proposed to rely on. Records also reveal that the appellant had furnished a detailed reply in defence. He had also submitted a list of witnesses and depositions. This goes to show that he was well-acquainted with the nature of allegations levelled against him and knew what he had to state in his defence. Given the above position, non-framing of the articles of charge cannot be said to be detrimental to the interest of the appellant.
72. In fact, the glaring defects and the procedural lapses in the inquiry proceedings took place only thereafter, in the month of May, 2009, when 12 hearings, most of them back-to-back, were conducted by the Committee at a lightning speed. On the one hand, the Committee kept on forwarding to the appellant, depositions of some more complainants received later on and those of other witnesses and called upon him to furnish his reply and on the other hand, it directed him to come prepared to cross-examine the said complainants and witnesses as also record his further deposition, all in a span of one week. Even if the medical grounds taken by the appellant seemed suspect, the Committee ought to have given him reasonable time to prepare his defence, more so when his request for being represented through a lawyer had already been declined. It was all this undue anxiety that had led to short-circuiting the inquiry proceedings conducted by the Committee and damaging the very fairness of the process.
73. For the above reasons, the appellant cannot be faulted for questioning the process and its outcome. There is no doubt that matters of this nature are sensitive and have to be handled with care. The respondents had received as many as seventeen complaints from students levelling serious allegations of sexual harassment against the appellant. But that would not be a ground to give a complete go by to the procedural fairness of the inquiry required to be conducted, more so when the inquiry could lead to imposition of major penalty proceedings. When the legitimacy of the decision taken is dependent on the fairness of the process and the process adopted itself became questionable, then the decision arrived at cannot withstand judicial scrutiny and is wide open to interference. It is not without reason that it is said that a fair procedure alone can guarantee a fair outcome. In this case, the anxiety of the Committee of being fair to the victims of sexual harassment, has ended up causing them greater harm.
74. This Court is, therefore, of the opinion that the proceedings conducted by the Committee with effect from the month of May, 2009, fell short of the “as far as practicable” norm prescribed in the relevant Rules. The discretion vested in the Committee for conducting the inquiry has been exercised improperly, defying the principles of natural justice. As a consequence thereof, the impugned judgment upholding the decision taken by the EC of terminating the services of the appellant, duly endorsed by the Appellate Authority cannot be sustained and is accordingly quashed and set aside with the following directions:

(i) The matter is remanded back to the Complaints Committee to take up the inquiry proceeding as they stood on 5th May 2009.

(ii) The Committee shall afford adequate opportunity to the appellant to defend himself.

(iii) The appellant shall not seek any adjournment of the proceedings.

(iv) A Report shall be submitted by the Committee to the Disciplinary Authority for appropriate orders.

(v) Having regard to the long passage of time, the respondents are directed to complete the entire process within three months from the first date of hearing fixed by the Committee.

(vi) The procedure to be followed by the Committee and the Disciplinary Authority shall be guided by the principles of natural justice.

(vii) The Rules applied will be as were applicable at the relevant point of time.

(viii) The decision taken by the Committee and the Disciplinary Authority shall be purely on merits and in accordance with law.

(ix) The appellant will not be entitled to claim immediate reinstatement or back wages till the inquiry is completed and a decision is taken by the Disciplinary Authority.

1. EPILOGUE
2. Just as we celebrate a decade of the PoSH Act being legislated, it is time to look back and take stock of the manner in which the mandate of the Act has been given effect to. The working of the Act is centred on the constitution of the Internal Complaints Committees(ICCs) by every employer at the workplace and constitution of Local Committees(LCs) and the Internal Committees(ICs) by the appropriate Government, as contemplated in Chapters II and III, respectively of the PoSH Act. An improperly constituted ICC/LC/IC, would be an impediment in conducting an inquiry into a complaint of sexual harassment at the workplace, as envisaged under the Statute and the Rules. It will be equally counterproductive to have an ill prepared Committee conduct a half-baked inquiry that can lead to serious consequences, namely, imposition of major penalties on the delinquent employee, to the point of termination of service.
3. It is disquieting to note that there are serious lapses in the enforcement of the Act even after such a long passage of time. This glaring lacuna has been recently brought to the fore by a National daily newspaper that has conducted and published a survey of 30 national sports federations in the country and reported that 16 out of them have not constituted an ICC till date. Where the ICC have been found to be in place, they do not have the stipulated number of members or lack the mandatory external member. This is indeed a sorry state of affairs and reflects poorly on all the State functionaries, public authorities, private undertakings, organizations and institutions that are duty bound to implement the PoSH Act in letter and spirit. Being a victim of such a deplorable act not only dents the self- esteem of a woman, it also takes a toll on her emotional, mental and physical health. It is often seen that when women face sexual harassment at the workplace, they are reluctant to report such misconduct. Many of them even drop out from their job. One of the reasons for this reluctance to report is that there is an uncertainty about who to approach under the Act for redressal of their grievance. Another is the lack of confidence in the process and its outcome. This social malady needs urgent amelioration through robust and efficient implementation of the Act. To achieve this, it is imperative to educate the complainant victim about the import and working of the Act. They must be made aware of how a complaint can be registered, the procedure that would be adopted to process the complaint, the objective manner in which the ICC/LC/IC is expected to function under the Statute, the nature of consequences that the delinquent employee can be visited with if the complaint is found to be true, the result of lodging a false or a malicious complaint and the remedies that may be available to a complainant if dissatisfied with the Report of the ICC/LC/IC etc.
4. However salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless and until there is strict adherence to the enforcement regime and a proactive approach by all the State and non-State actors. If the working environment continues to remain hostile, insensitive and unresponsive to the needs of women employees, then the Act will remain an empty formality. If the authorities/managements/employers cannot assure them a safe and secure work place, they will fear stepping out of their homes to make a dignified living and exploit their talent and skills to the hilt. It is, therefore, time for the Union Government and the State Governments to take affirmative action and make sure that the altruistic object behind enacting the PoSH Act is achieved in real terms.
5. DIRECTIONS
6. To fulfil the promise that the PoSH Act holds out to working women all over the country, it is deemed appropriate to issue the following directions :
7. The Union of India, all State Governments and Union Territories are directed to undertake a timebound exercise to verify as to whether all the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. have constituted ICCs/LCs/ICs, as the case may be and that the composition of the said Committees are strictly in terms of the provisions of the PoSH Act.
8. It shall be ensured that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, details of the e-mail IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, as also the relevant rules, regulations and internal policies are made readily available on the website of the concerned Authority/Functionary/ Organisation/Institution/Body, as the case may be. The information furnished shall also be updated from time to time.

• A similar exercise shall be undertaken by all the Statutory bodies of professionals at the Apex level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes.

1. Immediate and effective steps shall be taken by the authorities/ managements/employers to familiarize members of the ICCs/LCs/ICs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is finally concluded and the Report submitted. 
2. The authorities/management/employers shall regularly conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of the ICCs/LCs/ICs and to educate women employees and women’s groups about the provisions of the Act, the Rules and relevant regulations.
3. The National Legal Services Authority(NALSA) and the State Legal Services Authorities(SLSAs) shall develop modules to conduct workshops and organize awareness programmes to sensitize authorities/managements/employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar.

• The National Judicial Academy and the State Judicial Academies shall include in their annual calendars, orientation programmes, seminars and workshops for capacity building of members of the ICCs/LCs/ICs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules.
• A copy of this judgment shall be transmitted to the Secretaries of all the Ministries, Government of India who shall ensure implementation of the directions by all the concerned Departments, Statutory Authorities, Institutions, Organisations etc. under the control of the respective Ministries. A copy of the judgment shall also be transmitted to the Chief Secretaries of all the States and Union Territories who shall ensure strict compliance of these directions by all the concerned Departments. It shall be the responsibility of the Secretaries of the Ministries, Government of India and the Chief Secretaries of every State/Union Territory to ensure implementation of the directions issued.

1. The Registry of the Supreme Court of India shall transmit a copy of this judgment to the Director, National Judicial Academy, Member Secretary, NALSA, Chairperson, Bar Council of India and the Registrar Generals of all the High Courts. The Registry shall also transmit a copy of this judgment to the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and the Engineering Council of India for implementing the directions issued.
2. Member-Secretary, NALSA is requested to transmit a copy of this judgment to the Member Secretaries of all the State Legal Services Authorities. Similarly, the Registrar Generals of the State High Courts shall transmit a copy of this judgment to the Directors of the State Judicial Academies and the Principal District Judges/District Judges of their respective States.
3. The Chairperson, Bar Council of India and the Apex Bodies mentioned in sub-para (ix) above, shall in turn, transmit a copy of this judgment to all the State Bar Councils and the State Level Councils, as the case may be. 
4. The Union of India and all States/UTs are directed to file their affidavits within eight weeks for reporting compliances. List after eight weeks.
5. The appeal is allowed on the above terms while leaving the parties to bear their own costs. Pending applications, if any, shall stand disposed of.

……………..……J.                                                        ……………..……J.

[ A.S. BOPANNA ]                                                         [ HIMA KOHLI ]

NEW DELHI MAY 12, 2023 

Source: https://indiankanoon.org/doc/38950634/

[1] W.P. No. 602 of 2011

[2] Dated 10th May, 2010

[3] For short ‘EC’

[4] Dated 05th June, 2009

[5] For short ‘ The Committee’

[6] For short the CCS (CCA) Rules

[7] Vide Order dated 19th April, 2011

[8] Complaint dated 11.03.2009 & 17.03.2009

[9] Under cover of letter dated 08.04.2009

[10] Dated 17th April, 2009

[11] Dated 5th May, 2009

[12] Signed on 27th April, 2009

[13] Dated 22nd May, 2009

[14] Dated 23rd May, 2009

[15] Dated 4th June, 2009

[16] Dated 5th June, 2009

[17] vide letter 17th September, 2009

[18] (2013) 1 SCC 297

[19] Dated 1st July, 2004

[20] CCS (Conduct) Rules

[21] Dated 17^th February, 2010

[22]Rule 11 (IX) CCS CCA, 1965

[23] Appeal dated 25th June, 2010

[24] Dated 19th April, 2010

[25] Governor of Goa and Chancellor of Goa University

[26]  Order dated 10th May, 2010

[27] Vide Letter dated 5th May, 2009

[28] (1985) 3 SCC 398

[29] Vide letter dated 5th June, 2009

[30]  ILR 2006 (11) Del 1313

[31]  (2019) SCC Online Kar 3508

[32] 2014 SCC Online Del 1856

[33] (1973) 1 SCC 805

[34] (2006) 8 SCC 776

[35] (1997) 6 SCC 241

[36] dated 17th February, 2010

[37] Union of India and Another v. Tulsi Ram Patel, (1985) 3 SCC 398

[38] State of Madhya Pradesh and Others v. Shardul Singh, (1970) 1 SCC 108

[39] Bk. Sardari Lal v. Union of India and Others, (1971) 1 SCC 411

[40] Moti Ram Deka v. The General Manager, North East Frontier Railway, (1964) 5 SCR 683

[41] Union of India and Another v. Tulsi Ram Patel, (1985) 3 SCC 398

[42] Roshan Lal Tandon v. Union of India, (1968) 1 SCR 185

[43] Nisha Priya Bhatia v. Union of India and Another, (2020) 13 SCC 56

[44]  (1978) 1 SCC 248

[45]  1949 1 ALL ER 109

[46]  (1970) 1 SCC 248

[47]  1950 SCC 228

[48] (1991) Supp (1) SCC 600

[49] (2023) SCC Online 366

[50] (1969) 2 SCC 262

[51] (1967) 1 All ER 226

[52]  (2004) 2 SCC 447

[53]  (1981) 1 SCC 664

[54]  Also refer : A.K.Kraipak and others v. Union of India and Others, (1969) 2 SCC 262 and Union of India v. Col.

J.N. Sinha and Another, (1970) 2 SCC 458

[55]  (1981) 1 SCC 664

[56]  AIR 1967 SC 1269

[57]  (1969) 2 SCC 262

[58]  (1978) 1 SCC 405

[59]  (1978) 1 SCC 248

[60] Article 15: The State shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of

birth of any of them.

[61]  Article 42: The State shall make provisions for securing just and humane conditions of work and for maternity

relief

[62] Article 51(A): (e) ……. It shall be the duty of every citizen of India to, amongst others, renounce practices

derogatory to the dignity of women.

[63] The Convention on the Elimination of All Forms of Discrimination Against Women

[64]  For short ‘PoSH Act’

[65] (2013) 1 SCC 311

[66] (2013) 1 SCC 312

[67] (2013) 1 SCC 297

[68] The Sexual Harassment of Women at Work Pace (Prevention, Prohibition and Redressal) Act, 2013

[69]  State Bank of India and Others v. Ranjit Kumar Chakraborty and Another, (2018) 12 SCC 807

[70]  Madhyamam Broadcasting Limited v. Union of India decided on 5th April 2023

[71]  (1999) 1 SCC 759

[72] Chief Constable of the North Wales Police v. Evans, (1982) 3 ALL ER 141 HL. Also refer : B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749.

[73] Dr. Vijaykumaran C.P.V. v. Central University of Kerala and Others, (2020) 12 SCC 426

Ms. X vs Ms. Neeta Rege (Presiding … on 6 July, 2023

IN THE COURT OF AJAY GOEL, PRESIDING OFFICER

INDUSTRIAL TRIBUNAL-01, ROUSE AVENUE COURT,

D.D.U. MARG, NEW DELHI.

RCA DJ NO. 2/22

Ms. X

W/o X

R/o X.

Versus.

Internal Committee

Through

1. Ms. Neeta Rege (Presiding Officer)

Through Standard Chartered Bank with its Regional Office At 10 Sansad Marg, Connaught Place, New Delhi – 110001. ….. Appellant

2. Anonymous witnesses (Not summoned by Tribunal)
3. a) RW-1
4. b) IC Witness

Through Internal Committee Through Presiding Officer Ms. Neeta Rege (Presiding Officer)

3. Akshay Khurana

R/o A-4, Amar Colony, Lajpat Nagar, Delhi

Also at: Standard Chartered Bank, 13, Malcha Marg, Chankyapuri, New Delhi-110021

4. M/s. Standard Chartered Bank

Through Area Director North

Mr. Rishi Pahuja At its Regional Officer, At 10 Sansad Marg, Connaught Place, New Delhi – 110001.

                 ….Respondents

Date of Institution: 11.10.2022

Date of Assignment to this court: 17.03.2023

Date of Arguments: 06.07.2023

Date of Judgment : 06.07.2023

Ms. X vs Ms. Neeta Rege (Presiding … on 6 July, 2023

1. This is an appeal U/s 18 (1) of the Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013 which has been preferred by the appellant against the impugned order dated.22.08.2022 passed by the Internal Committee constituted by the Standard Chartered Bank.
2. The girl has not concealed her name in the appeal but keeping in view the sanctity and nature of case and the act involved, this court is refraining itself from mentioning the name of girl and instead of her name letter ‘X’ has been mentioned for appellant.
3. The facts relevant for disposal of present appeal are that present appeal has been filed on behalf of appellant who was a victim in a Posh Act case instituted at the behest of respondent No. 4 and respondent No. 1 was constituted to enquire into the complaint of appellant. It is stated that respondent No. 2 are the anonymous witnesses which have been incorporated in the array of parties through respondent No. 1 as the anonymous witnesses were initially permitted to give their evidence before the respondent No.1 but failed to disclose their identity despite repeated requests/objections by the appellant. It is stated that respondent No. 3 is the accused who has been held guilty vide judgment of the respondent No. 1 dated 22.08.2022 and the respondent No. 4 is the employer of the respondent No. 3.
4. It is stated that present appeal has been filed against respondent No. 1 who passed the judgment against the respondent No. 3 wherein respondent No. 3 was found guilty of sexual harassment but the respondent No. 1 has failed to provide any punishment in view of section 13 (3) (i) (ii) and section 15 of the Act.
5. In the brief facts of the case, it is pleaded that appellant was an employee of respondent No. 4 and was posted at the Branch Office at Malcha Marg, Chankyapuri, New Delhi as Branch Manager and appellant joined the services of respondent No. 4 on 10.10.2004 and continued to work at various branches of respondent No. 4 till she resigned as Branch Manager at Malcha Marg, Chankya Puri, New Delhi on 19.04.2021. It is stated that respondent No. 1 was constituted which is the internal committee which was constituted by the respondent No. 4 on 17.03.2022, to enquire into a complaint of sexual harassment on the basis of a complaint made by appellant, with respect to incident dated 11.12.2021 and 17.01.2022, to Group Chief Executive of the respondent No. 4 at UK on 11.03.2022.
6. It is stated that a complaint for sexual harassment was lodged by the appellant on the basis of recorded conversation between the respondent No. 3 employed as Relationship Manager in the respondent No. 4 at the Branch at Malcha Marg, Chankya puri, New Delhi and one Mr. Varun Bhasin who was an ex- employee of the respondent No. 4 and Mr. Varun Bhasin at the time of incident of telephone call was employed in the M/s. Kotak Mahindra Bank situated at Aerocity New Delhi where the appellant is currently employed as Director.
7. It is stated that on 31.03.2022, the presiding member of respondent No. 1 sent an e-mail to the appellant requesting the appellant to raise a written complaint with the allegations made by the appellant with evidence in support. It is stated that appellant in response to said e-mail of presiding member of respondent No. 1 replied vide her e-mail dated 12.04.2022 giving details of tape-recorded conversation between the respondent No. 3 and Varun Bhasin. It is stated that appellant also requested for retrieval of e-mail for the sexual harassment at a work place caused by Mr. Harsh Sehgal and Mr. Rishi Pahuja. It is stated that vide e-mail dated 18.04.2022, the presiding officer of respondent No. 1 sought the particulars of recording, date, time etc. but denied to register the complaint against Rohit Gupta on the ground that it had been a period of 3 months but there was no mention of harassment which the appellant faced at her workplace at Malcha Marg, New Delhi by Mr. Harsh Sehgal and Mr. Rishi Pahuja.
8. It is averred that pursuant to the correspondence between appellant and respondent No. 1 on the present complaint, the proceedings were to commence on 05.05.2022 through virtual hearing as per e-mail received dated 02.05.2022, and accordingly the statement of appellant was recorded on 05.05.2022 and respondent No. 3 was examined before the respondent No. 1 on 06.05.2022. It is stated that appellant was also handed the statement of an anonymous IC witness whose statement was recorded on 24.05.2022. It is stated that on 07.06.2022, the respondent No. 1 denied to reveal the identity of anonymous witnesses i.e. respondent No. 2 setting up the virtual cross-examination to the basis of comfort of respondent No. 3 and further asked for sharing of cross-examination questions to be asked by appellant to respondent No. 3. Further the appellant objected to the anonymous witnesses being permitted to give their evidence and pointed out the illegality being followed by the respondent No. 1 and which were against all principles of natural justice, however, respondent No. 1 refused on disclosing the witness identity and asked to share the cross-examination questions before virtual hearing scheduled for 08.06.2022 itself. It is stated that appellant feeling very grieved by the response and working of respondent No. 1 once again raised concerns with Mr. Winters vide her e-mail dated10.06.2022 expressing her serious concerns at the unfair, biased attitude of respondent No. 1 towards the respondent No. 2 and 3. It is further stated that respondent No. 1 vide their e-mail dated 20.06.2022 informed the appellant “the IC cannot disclose their identity additionally, the IC U/s 11 of Posh Act is vested with the powers and authority of a civil court empowering to call its own witnesses.
9. It is stated that even after the e-mail dated 29.09.2022 which is just merely an eye-wash the respondent No. 1 has not disclosed as to when the respondent No. 3 had resigned as the date of resignation is very important to establish the bias shown towards the appellant and further the respondent No. 1 had not provided a copy of warning letter issued to him nor any date provided as to when the warning letter was issued.
10. It is stated that on 22.08.2022, the respondent No. 1 passed its judgement holding the respondent No. 3 as guilty for sexual harassment but no punishment or compensation was passed and awarded against the respondent No. 3 and appellant also wrote to respondent No. 3 through e-mail dated 25.08.2022 for not passing any judgement in terms of section 13 (3) (I) (ii) and Section 15 of the Posh Act. Thereafter, appellant filed a criminal writ petition in CRL (WP) No. 2094/2022 and the said writ petition was withdrawn on 20.09.2022 with liberty to file fresh petition under appropriate forum. Later on, appellant received an e-mail dated 29.09.2022 from the presiding officer of IC that a written warning had been issued to respondent No. 3 and he had already resigned from the services.
11. Some grounds have also been raised in the appeal to the effect that respondent No. 1 has acted in arbitrary manner and against all the principles of natural justice by bringing anonymous witnesses and declining to reveal the name of anonymous witnesses and further by seeking cross-examination questions in advance to be asked at the time of cross- examination. It is also stated that respondent No. 1 was under the influence of respondent No. 4 and acted in collusion in protecting the respondent No. 2 and 3 and thus have acted in manner to cause further harassment to the appellant. It is further stated that action of the respondent No. 1 in not awarding any disciplinary action or compensation is against the Visakha guidelines as laid down by the Hon’ble Supreme Court in Visakha and ors Vs. State of Rajasthan (JT 197 (7) SC 384 and respondent No. 1 has gone against POSH Act by letting the respondent No. 3 go escort free by just pronouncing him as guilty without any punishment being provided.
12. It is also stated that respondent No. 1 breached the confidentiality of the appellant by disclosing the name of appellant and bringing in the issue of hearing of fraud by the appellant and tape recorded conversation in an enquiry being constituted without disclosing their identity which tantamount to the fact that the respondent No. 1 come within the purview of section 14 (2) of the POSH Act. It is stated that evidence as tendered by respondent No. 2 is a clear attempt to malign the appellant which are defamatory. It is also stated that non- disclosure of names of respondent No. 2 shows a high degree of collusion by respondents. It was also stated that respondent No. 1 has based its finding that the charges against the respondent No. 3 stands proved but failed to record a definite conclusion which is a violation as stated earlier of section 13 (3) of POSH Act and thus purpose of the POSH Act has been defeated by the very judgement passed by the respondent No. 1. It was also stated that respondent No. 1 has failed to give any compensation or punishment which is not only in contravention of the POSH Act but very detrimental to the case of appellant.
13. On the basis of above grounds, the present appeal was preferred and it was prayed that findings in the impugned judgement dated 22.08.2022 submitted by respondent No. 1 may be modified by directing the respondent No. 1 to reach a conclusive finding in accordance with Section 13 and 15 of the POSH Act 2013.
14. In response to appeal, respondent No. 3 filed its reply stating that present appeal is not maintainable for non-disclosure of correct facts and there is unexplained delay in filing the complaint which itself cat doubt on the said complaint. It was stated that said Audio recordings have been alleged to be recorded by Varun Bhasin – in his phone, who was never examined nor the phone/gadget /computer output was ever asked to be produced and affidavit U/s 65 (B) of the Indian Evidence Act was not filed by the complainant in said case. It was also stated that vindictiveness on the part of appellant is apparent as out of numerous calls between respondent No. 2 and Varun Bhasin, only two of them were allegedly recorded without knowledge and extract of it was used to file the present complaint. It was also stated that entire evidences of complainant suffers from large number of contradictions, inconsistencies, concealment and improvements which cast shadow of doubt and difficult to reply upon her version. It was also stated that there has been no earlier complaint against respondent No. 2 of said nature and he always treated all colleagues fairly and with utmost respect. It was also stated that it is substantial law that punishment sort to be imposed under POSH Act 2013 can be imposed only if it violates any of the provisions of section 2 (n) read with section 3 of Act. The other contents were denied and it was prayed that appeal may be dismissed being without any merits.
15. No other respondent filed reply to the present appeal but respondent No. 1 and 4 have filed written submissions.
16. I have gone through the records and the report of ICC and have heard the arguments as advanced by respective counsels for appellant and respondents.
17. During the course of arguments in appeal, both the parties i.e. appellant/victim and respondent No. 3/Charged Official were given individual personal hearing and their grievances and oral arguments were heard thoroughly at length.
18. It is pertinent to mention here that sexual harassment is the expression of unhealthy human relationship. It is not just the violation of dignity, right to social security and right to equality guaranteed to human beings in every social system but it is also a violation of right to life and peaceful existence guaranteed by law. It is a universal problem and its gravity is felt by all concerned around the world. Nations have gone for various legal approaches to curb harassment issues. With the new law in India relating to safety of women in work place with all stringent provisions for awareness and preventive measures, every woman at the place of work and study, who fall within the jurisdiction of educational institution, including its academic, non-academic staff and students should be protected from sexual harassment, intimidation and exploitation while they are associated with the campus/organization.
19. The AR for appellant during the course of final arguments has specifically argued that report of ICC is abuse of principles of natural justice and the enquiry was conducted in predetermined and haste manner.
20. It is important to take into consideration that ICC is a fact finding body which gives recommendations on allegations of sexual harassment at work places. The very object of the statute states of providing a speedy and hassle free remedy to the victims which is devoid of procedural complexities and rigors of courts and tribunals. The Act of 2013 states that the ICC is not bound by technical procedures but is only to ensure natural justice to parties and thus ICC is a free to devise its procedure depending on peculiar circumstances of the case before it while ensuring natural justice. Non-applicability of rules of evidence imply that technicalities of mode of proof and standard of proof do not apply to ICC. So the ICC is to come to conclusions based on holistic view of materials before it by weighing probabilities of a case. Further application of natural justice depends from case to case and protection of witnesses is a valid consideration for excluding cross-examination of witnesses particularly when they refuse to depose due to fear of person answering the charge.
21. It has to be kept in mind that the interference of the courts should be limited to ensuring that there are no procedural irregularities or violations of principles of natural justice and once the ICC has adequately and appropriately addressed a complaint of sexual harassment, it is not open to the courts to look into the merits of the matter.
22. The reliance is placed upon judgement passed by Hon’ble Bombay High Court in “Vidya Akhave Vs. Union of India & Ors. bearing writ petition No. 796/2015, wherein it was held that “it would not interfere with an order of punishment passed by the internal complaints committee in relation to a sexual harassment complaint, unless the order is shockingly disproportionate”.
23. It is crystal clear that this court cannot give any observation regarding finding vide which the respondent No. 3 has been held guilty because he has not challenged the findings and it has attained finality. The complainant/ appellant has come to court only on the ground of insufficiency of punishment and she herself was asked as to what she expects from the court and at first instance from ICC so that her dignity is maintained when charges are proved. She has stated that she is not inclined to give any harsh punishment to respondent No. 3 but at least he should know how to treat with woman and woman’s character should not be assassinated and bank should also have taken care of same. She has also stated that she will be satisfied if the litigation expenses are given. She stated that she was not personally heard by employer and she had vent out her anger in the open court after an opportunity was granted by this Tribunal.
24. It is argued by respondent No. 3 that there was complaint against husband of appellant and he was Branch manager also and stated that this fact has been brought before this court but they are not sure whether it was reason for the present complaint.
25. Certain points have been given by Counsel for appellant as to what recommendations she expects from the court. Same have been kept on record, gone through and perused.
26. It is argued on behalf of appellant that she has given 17 years long period service to Respondent No. 4/Standard Chartered Bank that too of her younger age and all of sudden, she was thrown out of office due to incident in question instead of going to root cause of problem. Her complaints made to respondent No. 4 remained unanswered and same were fallen to deaf ears and thus finding no alternative, she has to approach higher authorities of respondent No. 4 in United Kingdom. It is argued that ICC has conducted inquiry without following due process of law and she was never disclosed the name of anonymous RW-1 who identity remains concealed and her several requests in this regard were totally ignored.
27. On the other hand, it is argued on behalf of respondent No. 3 that he is innocent and he has to resign from office of respondent No. 4 and due to incident in question, he has also to suffer a lot and he faced many problems while applying for job with other organization but he could not find the employment. Later on, he had to leave Delhi and now he is working in Banglore in HDFC Bank Ltd. It is further argued that appellant has raised objection regarding brining of anonymous witness in inquiry proceedings and considering her request, the said witness was dropped by ICC. It is further argued that ICC has sought to share cross-questions in advance from both the parties to which respondent No. 3 has share his cross-examination in advance but appellant objected the same and never shared her questions to be put in cross-examination in advance during inquiry proceedings.
28. From the perusal of record, it is observed that before conclusion of proceedings of inquiry by the ICC, the respondent No. 4, for the reasons best known to them, accepted the resignation letter of respondent No. 3/Akshay Khurana and later on, findings were given against him which is of no use as he has already resigned from the management of respondent No. 4 and rather, no punishment was awarded to him at first instance and he was simplicitor held guilty for offence of sexual harassment. Later on, some warning letter was also issued to respondent No. 3 by respondent No. 4.
29. The ICC in its report has finally concluded and observed as under:

“That considering the proceedings and verbal statements made by the parties and corroboration of statements in respect thereof being substantiated with proof, in the form of tangible as also statements made by the parties to the Inquiry Proceedings, it is the opinion of the IC, that the allegations levelled against the respondent are proved and that the respondent is found guilty of sexual harassment. “

30. It is further observed from record that respondent No. 4 never tried to go into the roots of the incident and recording in question and grievances of appellant were never paid any heed by respondent No. 4. Though no imputation is levelled on bank by court and no malafide intention is attributed but at least matter could have been handled in more apt manner carefully keeping in view the sanctity of the woman and sensitivity of the issue. It is observed that Internal committee was constituted by respondent No. 4. It is also observed that said committee brought a witness i.e. ICW1 in inquiry proceedings on its own accord and further allowed the respondent to bring RW-1 and treated him as anonymous despite the objection of appellant and their names were never disclosed. Though bank has argued that it has never taken into consideration any statement of anonymous witness but that does not condone their act because if by chance they had taken the statement of those witnesses into consideration then result may have been different or the respondent No. 3 could have been exonerated. It is not understandable as to how witness can depose without being scrutiny of their cross-examination by affected party.
31. Biased, partial and one-sided behaviour of internal committee is further well depicted from the fact that appellant was asked to share cross-questions for respondent in advance and when this practice was objected by appellant, the committee justified it by saying that respondent is not comfortable in cross-examination without having questions in writing in advance. It is argued by counsel for respondent No. 3 that later on, on the objection of appellant, her part of questionnaire were never supplied to IC.
32. This practice adopted by Internal Committee is totally against principles of natural justice and any anonymous witness cannot be permitted to be produced in enquiry under POSH Act and the practice followed by IC in the present case was prejudicial and biased towards the appellant.
33. It is also observed that Internal Committee did not confine itself to the case of sexual harassment but it went beyond the same to malign the appellant and sought answers against her personal conduct. The relevant Pages No. 109, 110, 111, 120 and 122 are containing questions put to anonymous witnesses by Internal Committee which shows that questions were not related to offence of sexual harassment but was an attempt to malign her. So the Internal Committee was required to be vigilant in its conduct.
34. It is pertinent to mention here that employer/organization under whose authority, the Internal Committee has been formed must ensure the concept of neutrality and that principles of natural justice must be followed in letter in spirit. It is often seen that Chairperson of the committee who is senior employee of the employer has leanings with the employer and all efforts are made to absolve the employer in order that the organization’s reputation is not tarnished and due to this reason, it is often seen that victim becomes the target of the system by which she is governed and victim is criticized and humiliated. The other observation have been made just for the sake of mentioning as to what lapses have been occurred during conducting the proceedings. For the sake of repetition again it is mentioned that same may not be intentional because it is seen by this Tribunal while dealing with appeal that clear cut guidelines are missing and persons who are members of ICC are lacking in legal knowledge and they do not know the repercussions of way of handling the proceedings which unknowingly and inadvertently, result in such thing and observations above should not be taken as casting aspersion of mensrea of the employer/committee.
35. It is also observed that victim for this reason are afraid of filing cases/complaints of sexual harassment on account of their image being tarnished in the workplace as well as outside and victim becomes the topic of discussion and it becomes almost impossible for such victim to work in such environment and rather, she is eyed with suspicion. Even the organization/employer remain reluctant to entertain such complaints and employer endeavours to avoid such cases coming to the limelight for the sake of their reputation.
36. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in short POSH Act, was implement by the Government of India in 2013. It was a major step by the Govt. of India for preventing any form of misconduct on the women at workplace. This act is applicable on each and every company, workspace, establishment or organization employing 10 or more employees whether full time, part time, interns or on contract, irrespective of its nature of industry of location. This Act refers to set of guidelines, policies and laws designed to prevent and address sexual harassment in the workplace. Sexual harassment can include unwanted sexual advances, requests for sexual favours, or other forms of verbal or physical conduct of a sexual nature.
37. This Act further states various steps to be followed by the organizations in order to create a healthy workspace for women employees. These steps are:-
38. Drafting Prevention of Sexual Harassment Policy. B. Constitution of Internal Committee (IC) to handle complaints regarding sexual harassment. C. Create awareness among employees regarding their rights and responsibilities for creating a safe workplace. D. Annual return on POSH compliances.
39. The POSH Law mandates that an organization should take all necessary steps to create awareness among its employees about prevention of sexual harassment and POSH Law. Organizations can create awareness among employees in different ways. The awareness sessions are very important to sensitize the employees about POSH Act. The common methods employed to create employee awareness on POSH are classroom sessions and online training.
40. The organizations covered under POSH needs to file an Annual Report to the District Officer, each Calendar year and this report shall contain the following:
41. Total number of sexual harassment complaints actioned and completed.
42. Total number of sexual harassment complaints under investigations for more than 90 days.
43. Total number of employees in the organization and the number of employees trained on POSH awareness.
44. Nature of the action taken by the Organization or District Officer.
45. The last date of submission of such annual report to the District officer is 31st January of every year for the preceding calendar year.
46. The compliance of this Act is integral to ensure a safe and healthy workplace and employers must take the necessary steps to ensure their work complies with POSH guidelines.
47. The importance of POSH Act in the workplace is paramount as it helps to create a safe and comfortable work environment for everyone. When employers and employees know the rules and regulations regarding sexual harassment, they are better equipped to identify and prevent it and this can lead to higher job satisfaction, productivity and a reduction in legal liability for employers.
48. Thus, the avowed objectives of the SHW Act are (i) ensuring that women’s right to equality, life and liberty is not violated or compromised, (ii) providing of a secure and friendly work environment, (iii) social and economic empowerment of women, (iv) inclusive growth, (v) creating of an enabling environment for women which is equitous, safe and secure in every aspect, (vi) ensuring women are treated with due respect, decency and dignity at the workplace, (vii) equality in employment, (viii) ensuring women are not subjected to gender- specific violence, (ix) protection and promotion of women’s constitutional rights and, at the end of the working day, (x) ensuring that every woman is provided a safe working environment, insulated from any act of sexual harassment, of any form. Each and everyone of these objectives is, conspicuously, “harasser-neutral”.
49. Recently, #MeToo movement that followed brought to light numerous allegations of sexual harassment and assault in various industries, from entertainment to politics to business. Additionally, there have been several cases of POSH violations of sexual harassment and discrimination at companies such as Uber and Google. These Instances highlight the need of POSH solid policies and enforcement in the workplace.
50. Under the Act, it is the employer who is responsible for implementing policies and procedures to prevent sexual harassment, providing training to employees and managers and establishing an internal complaints committee to investigate and address complaints of sexual harassment. The employers are also required to display information about the Act and the complaint procedure in a prominent location in the workplace.
51. It is observed that due to lack of proper awareness of this POSH Act, respondent No. 4 and 3 failed to create a safe and comfortable work environment and further to identify and prevent it.
52. It is not an out of place to mention here that due to acts and actions of the respondent No. 3, she has suffered a lot during this period which cannot be compensated in terms of money as her whole career was put at stake at the hands of respondent No. 3 and at least respondent No. 3 is required to be directed to tender unconditional apology and to pay the litigation cost of Rs. 2 Lacs to her.
53. In rebuttal to same, during the course of arguments, the respondent No. 3 has argued that he is going through financial crunch on the ground that he is also running from pillar to post and he has to engage counsel to face this litigation and bearing the legal expenses and has sought some reduction in the same but he is ready to tender unconditional apology and to pay sum of Rs. 1,50,000/- without prejudice to his rights and contentions, to appellant as litigation expenses subject to condition that he wants to end this litigation once for all and focus on his career and after payment of this amount, the appellant may not be allowed to raise any other dispute qua the incident in question.
54. The fact cannot be ignored that compensation cannot be quantified in such cases as already lot of sufferings must have been faced by appellant due to this incident which cannot be compensated in terms of money still the appellant has accepted the submissions of respondent No. 3 and thus a cheque of Rs. 1,50,000/- has been handed over to appellant as litigation cost by respondent No. 3 which is duly accepted by appellant. An unconditional apology has been tendered by respondent No. 3 to appellant and same is also accepted by appellant. Statement of both the parties have been recorded in this regard separately. However, it is made clear that it will not have adverse impact on respondent No. 3 also who has tendered apology and it will not reflect the character of respondent No. 3. Trauma has also been faced by respondent No. 3 during all these years because for one lapse/usage of curse word whether intentional or unintentional, he dragged himself into litigation which could be avoided by him by curbing his anger. Balance has to be maintained and if dignity of complainant is to be maintained, simultaneously, the carrier of the respondent No. 3 is required to be protected as he has also suffered humiliation for his own fault but that should be a lesson for him and other person that they should not use such words regarding a woman as nobody has given any right to man or boy to cause aspersion on the character of lady. Today, he has realised his mistake that he should not have spoken such words. Otherwise no other gesture or offence was made. The men employees should also refrain from tagging a woman with other man without any basis or right as that is none of their business.
55. During the course of final arguments, the attention of this Tribunal has been drawn towards internet generated report wherein it is reported that there are several other instances and complaints of sexual harassment by other female employees against other male employees working in Standard Chartered Bank and in said complaints also, the pleas and complaints made to head concerned, including the HR and CEO went unanswered and their complaints were fallen to deaf ears.
56. Without going through the contents of same, this court is not commenting on this as to whether it is correct or wrong as same requires checking of authenticity of report but nevertheless, if it is so, the bank should find it out and if it is true then introspection by bank is required to curb this menace. This should not go un-redressed as this can show the callous attitude of respondent No. 4 towards such complaints.
57. It is observed that very often women share common concerns which men do not necessarily share or the concern expressed by women have not been necessarily understood by men in the proper perspective. There is no manner of doubt that women are socially and physically vulnerable and are faced with sense of constant insecurity while working in any organization and it is the duty of every employer to ensure that the appropriate safeguards are provided by the men in the organization to protect the women from sexual harassment and other types of harassments. The employer should ensure that the duties which are cast upon them by the said Act are complied in neat. It will be relevant to reproduce the duties which have been cast upon the employer by Section 19 of the said Act which reads as under: “Section 19- Duties of employer- Every employer shall-
58. provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the work place;
59. display at any conspicuous place in the workplace, the penal consequences of sexual harassment; and the order constituting, the Internal Committee under Sub-Section (1) of the section 4;
60. Organize workshops and awareness programmes at regular intervals for sensitizing the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
61. provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
62. assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
63. make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of section 9;
64. provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the IPC or any other law for the time being in force;
65. cause to initiate action, under the IPC or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
66. treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
67. monitor the timely submission of reports by the Internal committee.
68. Last but not the least, when a complaint is filed by a woman employee, it should be promptly looked into and an enquiry should be made by the Internal Committee within a reasonable period of time.
69. Lastly, the safety mechanism should be evolved to ensure that the women employees can express their concern to a suitable higher officer.
70. The social welfare department should focus on creating awareness and promoting education about sexual harassment, consent, gender equality and respectful behaviour. This can be done through campaigns, workshops and training programs targeting both men and women.
71. Further the department should work towards implementing and enforcing stringent laws that protect women from sexual harassment. This includes reviewing and amending existing laws, if necessary, to ensure they are comprehensive and effective. Additionally, ensuring timely and fair investigation and prosecution of reported case is crucial.
72. Keeping in view all the circumstances, respondent No. 4 is also required to be directed to pay at least Rs. 50,000/- as litigation cost to appellant. The bank is not directed to pay any compensation amount to complainant because the complaint of the complainant was dealt with but there was some procedural lapse and charged official was found guilty also.
73. Respondent No. 4, Standard Chartered Bank is also directed to display in clear terms setting the high standard by giving clear cut message to all the employees in harsh words that there is no tolerance for any such incident in that institution.
74. Request was also made to seek apology from ICC but same is not warranted as there is no material to seek any explanation from them.
75. It is clearly made out that respondent No. 4 and respondent No. 1 could not comply with the provisions of POSH Act in letter and spirit due to some ignorance and lack of legal knowledge and it is need of the hour that atleast the concerned authorities should be roped in as observed above.
76. Before parting with, this Tribunal would like to mention here that this Tribunal is dealing with the appeal under the sexual harassment of woman at workplace (Prevention, Prohibition and Redressal) Act, 2013. As evident in the present case, the arguments have been raised and dealt with respect to certain technical issues with respect to constitution of ICC and proceedings under the Act. The act was enacted almost 10 years ago and is to be implemented by the management, wherein they are supposed to constitute IC Committee of members including a Presiding Officer who supposed to be a woman employed at senior level at workplace, two members from amongst employees committed to the cause of woman are having the experience of social work and one person from NGO. All of them may not have the legal knowledge but repercussions are high. As in the present case, the observations are made due to technical flaws. In one of the case before this court, the court came across the findings in which humorous suggestions have been given by the members after finding the charge official guilty. Generally no compensation is being granted. ICC has rather no knowledge as to what punishment should be inflicted and how the complainant can be compensated. Though managements have the duty to keep the work place in such a manner so that there are no chances of having sexual harassment but no attention is given. It has also been observed that minor differences in the workplace can prevent the chances of sexual harassment. It is crucial for Delhi Commission for Women to focus on substantive actions rather than superficial gestures just for the sake of publicity and bringing the name in newspaper or to find fault in the other institution when equal responsibility lies with them also. The commission should do concrete work rather than lip service. In these circumstances, in the interest of justice and for the purpose of effective implementation of the above act, it is desirable that Delhi Commission for Women of NCT of Delhi and Central Ministry of Social Empowerment for Woman/Ministry of Women and Child Development conduct seminars, impart legal knowledge to ICC, management as well as LCC as well as create awareness in the women regarding their rights against sexual harassment at the workplace in view of the points discussed above so that the purpose of Act is achieved and it is implemented completely, thoroughly and perfectly.
77. Relief: In view of the above discussion, this Tribunal is of the opinion that findings of ICC suffers from illegality and infirmity as despite holding guilty to respondent No. 3 and finding substance in the complaint of appellant, no punishment was awarded to respondent No. 3. Accordingly, the present appeal stands allowed with costs and disposed off in terms of observations made above by satisfying the complainant. File be consigned to record room.

       Announced in open Tribunal on this 06.07.2023

(AJAY GOEL)

ndian Kanoon – http://indiankanoon.org/doc/4549944/

Bibha Pandey vs Punjab National Bank & Ors on 16 December, 2020 Delhi High Court

Digitally Signed By:DINESH SINGH NAYAL

Signing Date:18.12.2020 22:14:36

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 16th December, 2020

+          W.P.(C) 3249/2017 & CM APPL. 14126/2017

BIBHA PANDEY                                 ….. Petitioner

Through:       Ms. Vrinda Grover, Senior Advocate with Mr. Ankur Sood, Advocates. (M:7828421815).

versus

PUNJAB NATIONAL BANK & ORS                   ….. Respondents

Through: Mr. Rajesh Kr. Gautam, Mr. Anant Gautam and Mr. Nipun Sharma, Advocates for R-1,2, and 4 (M:9811252434).

Mr. Varun Mishra, Advocate for R-3.

CORAM:

JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J.(Oral)

1. This hearing has been done by video conferencing.
2. The Petitioner has filed the instant petition challenging the recommendations of the Internal Complaints Committee (hereinafter as “ICC”), as given in the report dated 15th March 2017, as well as further action which has been taken by the Punjab National Bank (hereinafter as “Bank”) on the basis of ICC’s report.
3. The brief background is that a complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter as “Act”) was filed by the Petitioner against Respondent No.3, who was working as the General Manager of the Respondent No. 1 Bank, in Mumbai. The said complaint was referred to the ICC, which was constituted by the Bank, consisting of four members.
4. The constituted ICC, upon analysing the complaint, came to the conclusion that the relationship between the Petitioner and Respondent No.3 were based on personal grounds with mutual consent, and that the allegations of sexual, emotional and mental harassment were not substantiated by the Petitioner. Thus, the complaint against the Respondent No. 3, was rejected. However, the ICC did not stop there. The ICC went on to make an observation that the behaviour of the parties had been inappropriate and unbecoming of Officers/Employees of the Bank, and accordingly the ICC recommended the Competent Authority to take suitable action against the Petitioner and the Respondent No. 3, as deemed fit.
5. This report, thereafter, resulted in a charge-sheet being issued on 15th April, 2017, against the Petitioner, under Regulation 6 of the Punjab National Bank Officer Employees’ (Discipline & Appeal) Regulations, 1977. The foundation of the said chargesheet was the ICC’s report and certain other facts, which the Bank had ascertained out of the various communications between the Respondent No. 3 and the Petitioner. The said chargesheet was served upon the Petitioner, and at that stage, the Petitioner has preferred the present writ petition.
6. Vide order dated 19th April, 2017, the ld. Single Judge, while entertaining the present petition, had stayed the ICC’s recommendation and the consequent charge-sheet. The relevant portion of the said order reads as under:

“9. Till the next date of hearing, operation of report of the Internal Complaints Committee (ICC) dated 15.03.2017, insofar as it recommends an action to be taken against the petitioner and the consequent charge sheet issued to the petitioner, shall remain stayed.”

7. Thereafter, pleadings were being completed in the matter and at some point during the pendency of the petition, the Petitioner also became eligible to be considered for promotion. At that stage, the Petitioner, as recorded in the order dated 1st October, 2019, submitted that her promotion is being held up in view of the pendency of the present petition. On the said date, the following order was passed:

“Matter is to be heard. Ld. counsel for the Petitioner submits that her promotion is being held up in view of the pendency of the present petition. Ld. counsel for Punjab National Bank to take instructions as to whether the Petitioner is entitled to promotion, keeping aside, the recommendation of the Internal Complaints Committee (‘ICC’) and charge sheet arising therefrom as the same are subject matter of the present petition and an interim order has already been passed in favour of the Petitioner. Let instructions be sought before the next date.

List on 3rd December 2019.”

8. Thereafter, vide order dated 3rd December, 2019, the Bank was directed to independently consider the Petitioner’s candidature for promotion. However, it was directed that the same would not be given effect to and shall be kept in a sealed cover. Due to the lockdown, the matter could not be heard thereafter.
9. In the meantime, the Bank has also placed on record, in a sealed cover, the relative performance of the Petitioner and her prospects for promotion, independent of the charge-sheet against her. The affidavit in compliance of the orders passed by this Court has been placed on record by Bank.
10. Rajesh Kr. Gautam, ld. counsel appearing for the Bank, submits that as per the affidavit placed on record, the performance of the Petitioner was also evaluated in the merit list and the Petitioner has become eligible for consideration for promotion. It is further submitted that there is no doubt that the ICC concluded that the Petitioner was in a consensual relationship. However, in terms of the rules of the Bank, whenever there are any disciplinary proceedings which are pending, the Bank is bound to keep the promotion in a sealed cover in view of Paragraph 20(1) and Paragraph 20(2.5) of the Promotion policy of the Bank. It is in view of the said policies that the Petitioner’s result has been kept in a sealed cover.
11. Vrinda Grover, ld. counsel appearing for the Petitioner, submits that upon the sexual harassment complaint filed by the Petitioner under the Act being rejected, the ICC can merely, close the enquiry for the case not having been made out against Respondent No.3. However, the recommendation made for taking action due to the alleged “unbecoming” conduct is contrary to Section 13(2) of the Act. She, further, submits that insofar as the conclusions of the ICC are concerned, for personal reasons, the Petitioner does not wish to press any challenge in respect of the conclusion, so long as the recommendation made by the ICC is set aside by this Court.
12. Heard ld. counsels for the parties. The first and foremost question that arises is as to whether the ICC could have, in the first place, made a recommendation directing the competent authority to take action. A perusal of the ICC’s report shows that the recommendations of the ICC are as under:

“After detailed deliberations, the committee observed that both the complainant Ms. Bibha Pandey as well as the respondent Shri Ashwini Kumar Vats have entered into a relationship with each other on personal basis, with mutual consent. The allegations of sexual, mental and emotional harassment is not substantiated as the actions on the part of the Respondent and the allegations cannot be termed as sexual harassment at workplace as defined under Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act 2013. Therefore, the present complaint is rejected being non maintainable as per the provisions of the Act of 2013.

The Committee observes from the records available that the Complainant as well as the Respondent, have acted in a manner which is unbecoming of an Officer employee of the Bank as they have indulged in inappropriate acts, not maintaining good conduct and discipline expected of them. The Respondent, being at a very senior position, failed to maintain the dignity and decorum of his position. No case under Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act 2013 is made out. Both the Complainant as well as the Respondent have behaved and acted in a manner which is not befitting to the post held by them. On the contrary, it is detrimental to the organization and has vitiated the atmosphere of the Bank. The competent authority may take suitable action against them as deemed fit.”

13. The above conclusions of the ICC are in two parts. In the first part, the ICC concludes that the allegations are not substantiated and the complaint is not made out. In the second part, the ICC goes further and comments on the conduct of the Petitioner and the Respondent. It also recommends that the Bank `may take suitable action’. Section 13 of the Act, contemplates various situations relevant to the inquiry report. Insofar as the ICC is concerned, there are two situations contemplated under Section 13(2) and 13(3), which are set out below for ready reference:

“13(2): Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter:

13(3): Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be–

(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;

(ii) to deduct, notwithstanding in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section15 Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:

Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District officer.”

14. As per the above provisions, if the allegations of sexual harassment or any other form of harassment, as contemplated under the Act, are not proved before the ICC, the ICC can only recommend the employer to not take any action in the particular matter. However, the ICC, in the present case, has gone beyond its statutory mandate, as recognised under Section 13(2) of the Act. It has, in fact, given observations stating that both the parties i.e., the Petitioner and the Respondent No.3 have indulged in inappropriate/ unbecoming conduct and indiscipline, and has recommended the competent authority to take suitable action against them. Giving such a recommendation is clearly beyond the jurisdiction of the ICC.
15. Complaints of sexual harassment are initially filed with enormous reluctance. The power of the ICC to hold the enquiry and give a report ought to be within the scheme and the four corners of the statute itself. If a case of sexual harassment is not made out, the ICC can only conclude that no action is required to be taken. On the other hand, if a case of sexual harassment is made out, then the recommendation of the ICC can only be for taking appropriate action for misconduct, in accordance with the provisions of the service rules as contained within Section 13(2) and 13(4) of the Act.
16. It is not contemplated within the provisions of the Act that while holding that no action is to be taken and the complaint is to be rejected, the ICC can direct for suitable action on the ground that the parties have indulged in an inappropriate conduct. Such a determination and consequential recommendation is beyond the jurisdiction of the ICC.
17. `Moral Policing’ is not the job of the Management or of the ICC. Any consensual relationship among adults would not be the concern of the Management or of the ICC, so long as the said relationship does not affect the working and the discipline of the organisation and is not contrary to the Rules or code of conduct binding on the said employees. It is only if a complaint is made of sexual harassment under the Act that the Management can constitute the ICC to enquire into the same. The ICC cannot make comments on the personal conduct of the parties and the ICC’s jurisdiction would be restricted to the allegations of sexual harassment and whether a complaint is made out or not, to that effect. Under these circumstances, this Court has no hesitation in holding that the last paragraph of the recommendation of the ICC, which comments on the conduct of the parties and recommends to the competent authority to take action against the Petitioner and Respondent No. 3, for their inappropriate disciplinary conduct, is not tenable and is liable to be set aside.
18. Further, in view of the fact that one of the factors leading to the chargesheet dated 15th April, 2017, was the recommendation of the ICC, the chargesheet which seeks to take disciplinary action against the Petitioner is liable to be quashed and is ordered accordingly.
19. In view of the above position, the fact that the Petitioner has become eligible for promotion means that the Bank would accordingly offer her promotion in accordance with her seniority, performance and merit, as per the applicable service rules. The chargesheet would no longer be an obstacle in the Petitioner’s promotion and no disciplinary enquiry would now be held against the Petitioner pursuant to the said chargesheet.
20. The affidavits filed by the Bank in a sealed cover shall be scanned and be retained on record.
21. With these observations, the present petition and all pending applications are disposed of.

PRATHIBA M. SINGH JUDGE DECEMBER 16, 2020

Source: https://indiankanoon.org/doc/117841445/