9911796707
TMI Blog2023 (5) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - matter is remanded back to the Complaints Committee to take up the inquiry proceeding as they stood on 5th May 2009. - A.S. BOPANNA AND HIMA KOHLI, JJ. For the Appellant : Bishwajit Bhattacharyya, Sr. Adv., Arul Jha, Pragyan Pradip Sharma, Sandeep Jha, N.B.V. Srinivasa Reddy, Advs. and P.V. Yogeswaran, AOR For the Respondent : Ruchira Gupta, Adv., Shishir Deshpande, AOR, Harshita Sharma and Deep Narayan Sarkar, Advs. JUDGMENT HIMA KOHLI, J. INDEX A. Scope of the Appeal 1 B. Sequence of Events 1-8 (a) Proceedings before the First Committee 1-6 (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) Breathing Reasonableness into the Procedural Regime 37-38 L. Analysis and Discussion 38-49 (a) Scope of interference by the High Court in Judicial Review 39-40 (b) Extent of Adherence to the as far as practicable norm 40-42 (c) The Committee's Understanding of its mandate 42-44 (d) Whirlwind Proceedings 44-47 (e) How did the Executive Council Falter? 47-49 M. Conclusion 49-52 N. Epilogue 53-55 O. Directions 55-59 A. SCOPE OF THE APPEAL 1. A challenge has been laid by the Appellant to the judgment dated 15th March, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 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 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 pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime 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 Dated 22nd May, 2009 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 Dated 23rd May, 2009 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 Dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. v. Union of India and Ors. (2013) 1 SCC 297 and the amendment Dated 1st July, 2004 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 CCS (Conduct) Rules , 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 recommendations made by the EC in its meeting held on 12th December, 2009, stood terminated and the order appointing the Inquiry Officer had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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. E. 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 Order dated 10th May, 2010 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 commen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was only a fact finding report that could not have been relied on as a final inquiry, particularly when it entailed serious 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 Ors. ILR 2006 (11) Del 1313 and of a Single Judge of the Karnataka High Court in Professor Giridhar Madras v. Indian Institute of Science represented by Chairman and Ors. (2019) SCC Online Kar 3508 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee 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 2014 SCC Online Del 1856 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bruary, 2010 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. F. THE TRIAD: ARTICLES 309, 310 AND 311 OF THE CONSTITUTION OF INDIA 28. Services under the Union and the States are governed under Part XIV of the Constitution. Article 309 of the Constitution that provides for recruitment and conditions of service of persons serving the Union or a State, Article 310 that refers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signing any cause Union of India and Anr. v. Tulsi Ram Patel, (1985) 3 SCC 398 . 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 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 311 of the Constitution is a manifestation of the essential principles of natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided 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. G. ARTICLE 14: BEDROCK OF THE PRINCIPLES OF NATURAL JUSTICE 34. Principles of natural justice that are reflected in Article 311, are not an empty incantation. They form the very bedrock of Article 14 and 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. 35. Article 14, often des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish 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 1949 1 ALL ER 109 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 (1970) 1 SCC 248, wherein it was held that fundamental rights are not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be held that Article 14 read 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances, 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 alteram 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 Ors. v. Union of India and Ors. (1969) 2 SCC 262 quoting with approval the judgment In re: H.K. (All Infant) (1967) 1 All ER 226, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (1981) 1 SCC 664) 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: therefore, a viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis 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 Also refer: A.K. Kraipak and Ors. v. Union of India and Ors. (1969) 2 SCC 262 and Union of India v. Col. J.N. Sinha and Anr. (1970) 2 SCC 458 . 44. In Swadeshi Cotton Mills v. Union of India (1981) 1 SCC 664, 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 AIR 1967 SC 1269, A.K. Kraipak (1969) 2 SCC 262, Mohinder Singh Gill (1978) 1 SCC 405, Maneka Gandhi (1978) 1 SCC 248. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 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. Proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. K. JOURNEY FROM VISHAKA CASE TO THE POSH ACT (a) VISHAKA GUIDELINES: FILLING IN THE VACUUM: 50. 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 32 of 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 gend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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. 52. On 17th January, 2006, in the very same case of Medha Kotwal Lele (2013) 1 SCC 312, 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with Vishaka and Ors. v. State of Rajasthan and Ors. (1997) 6 SCC 241, guidelines and the guidelines in the present order. (c) ENACTMENT OF THE PoSH ACT AND RULES: 54. 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 Act lays 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 The Sexual Harassment of Women at Work Pace (Prevention, Prohibition and Redressal) Act, 2013 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 taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of India and Ors. v. Ranjit Kumar Chakraborty and Anr. (2018) 12 SCC 807 . 56. 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 Madhyamam Broadcasting Limited v. Union of India decided on 5th April 2023 . L. ANALYSIS AND DISCUSSION: 57. 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 purposes of the CCS Rules. Keeping this in mind, we may now proceed to ascertain as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and that the concerned employee gets a reasonable opportunity to vindicate his position and establish his innocence Dr. Vijaykumaran C.P.V. v. Central University of Kerala and Ors. (2020) 12 SCC 426. (b) EXTENT OF ADHERENCE TO THE AS FAR AS PRACTICABLE NORM 60. 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 whether the inquiry conducted by the Committee in the instant case, would meet the 'as far as practicable' norm? 61. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 66. 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. 67. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules and its report shall be deemed to be a Report under the CCS (CCA) Rules. 69. 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. 70. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 74. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 77. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms. O. DIRECTIONS 79. 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: (i) The Union of India, all State Governments and Union Territories are directed to undertake a time bound 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. (ii) 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. (iii) A similar exercise shall be undertaken by all the Statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation of the directions issued. (ix) 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. (x) 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. (xi) 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. 80. The Union of India and all States/UTs are directed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
