Waheed Akhtar Ansari vs Society'S Maharashtra College Of
2008 Latest Caselaw 44 Bom

                                     1




                                                                                
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                        
                    CIVIL APPELLATE JURISDICTION

                    WRIT PETITION NO.7622 OF 2007




                                                       
    Waheed Akhtar Ansari                             ..Petitioner.
               Vs.
    The President,
    Khairul Islam Higher Education




                                          
    Society's Maharashtra College of
    Arts & Commerce and others                       ..Respondents.
                              ig     ....
    Mr. A.N. Maniyar for the Petitioner.
    Mr. Nusrat Shah with Mr. V.A. Almeida, Ms. Pravin D. Contractor,
                            
    Mr. A.K. Gupta, Ms. Ema Almeida i/b Mrs. Naazish N. Shah for
    Respondents 1 an 2.
    Ms. P.S. Cardozo, AGP for Respondents 3 and 5.
                                     ....
           


                        CORAM: SMT. RANJANA DESAI and, 
                                       DR. D.Y. CHANDRACHUD, JJ.

16th September, 2008.

JUDGMENT (Per DR.D.Y.CHANDRACHUD , J.) :

1. Rule, made returnable forthwith. Counsel appearing for

the Respondents waive service. By consent of the learned

counsel, taken up for hearing and final disposal.

2. On 22nd August, 2002 the Petitioner was appointed as a

Shikshan Sevak in a junior college conducted by the First and

Second Respondents for a term of three years. A complaint was

addressed on 16th January, 2003 to the management by a lady

lecturer complaining of sexual harassment by the Petitioner. An

explanation was called for by the management from the Petitioner

on 18th January, 2003 and his services were terminated on 31st

January, 2003. According to the Petitioner, between the receipt of

the complaint and the letter of termination certain events

transpired. The allegation of the Petitioner is that on 22nd January,

2003 he was called to the police station at Nagpada; he was

assaulted there and he was compelled to sign an inculpatory

statement. Thereafter, the Petitioner alleges that on 25th January,

2003 he was summoned to the office of the Principal where a

statement accepting of guilt was dictated by the Principal and

corrected by a trustee. The Petitioner claims that on 28th January,

2003 he submitted a fair copy of the explanation to the Principal.

A letter of termination followed on 31st January, 2003.

3. The Petitioner challenged the order of termination before

the Grievance committee set up in pursuance of a Government

Resolution dated 13th October, 2000 issued by the State

Government to regulate the terms of appointment and conditions of

service of Shikshan Sevak. The appeal was dismissed by the

Grievance committee on 8th April, 2004. The order of the

Grievance committee was challenged by the Petitioner in a writ

petition under Article 226 of the Constitution (Writ Petition No.1680

of 2004). The Writ Petition was disposed of by a Single Judge of

this Court on 2nd July, 2004. This Court inter alia noted that the

case of the Petitioner was that the apology which he had been

called upon to tender by the Principal was not voluntary. The Court

observed that the Grievance committee had not considered as to

whether the allegation of misconduct was established.

Consequently the Petition was disposed of with a direction that the

management would be at liberty to convene a disciplinary

proceeding for the purpose of enquiring into the charge of

misconduct against the Petitioner pending which the Petitioner

could be placed under suspension. The order of the Grievance

committee and the order of termination were both set aside in order

to facilitate a fresh determination.

4. Pursuant to the order passed by this Court the

management conducted a disciplinary enquiry and on 1st

September, 2005 the enquiry officer submitted his report. The

Petitioner had instituted a writ petition before this Court (Writ

Petition 6203 of 2005), during the pendency of the disciplinary

proceedings for setting aside a Roznama dated 8th August, 2005

under which evidence was recorded in the disciplinary proceedings

and for a direction to the management to forward the complaint

made by the lady lecturer on 16th January, 2003 to the Grievance

committee as required by the Government Resolution dated 13th

October, 2000. The Petitioner also made a prayer in regard to the

payment of subsistence allowance. The Petition came up for

hearing before a Division Bench and on 28th September, 2005 the

Division Bench made rule absolute in terms of prayer clause (a) by

setting aside the Roznama of the enquiry dated 8th August, 2005.

The Division Bench observed that it was only the Grievance

committee which could go into the issue of misconduct. The

management was directed to refer the complaint in respect of

which the charge-sheet was issued to the committee for its

consideration. The operative directions of the Division Bench were

as follows :

"In so far as the enquiry is concerned, the petition will have to be allowed in as much as it is only the Committee as set out earlier which is the Committee

which can also go into the issue of misconduct. In the light of that Petition made absolute in so far as prayer

clause (a) is concerned. We further direct the management to refer the complaint in respect of which

charge sheet was issued to the Committee for their consideration. It will be open to the petitioner to contend before the Committee that what can be considered is only the complaint based upon which his

services were terminated. All these issues are left open to be considered by the Committee."

5. Thereupon the Grievance committee heard the parties

and delivered its impugned order dated 16th June, 2007 holding

that the services of the Petitioner were correctly terminated. The

Grievance committee came to the conclusion that it was entitled to

rely upon the enquiry report submitted by the management. The

order of the committee shows that the report of the enquiry forms

the basis and foundation of the order.

6. Counsel appearing for the Petitioner has urged that (i) By

the judgment of the Division Bench dated 28th September, 2005 the

management was required to refer the complaint in respect of

which the charge-sheet was issued to the Grievance committee.

The grievance is that the committee has not decided upon the

complaint dated 16th January, 2003. Since the Grievance

committee has failed to do so, the complaint must be treated as

having come to an end and the committee would have no right or

jurisdiction to entertain any proceeding hereafter; (ii) The charge of

sexual harassment has been made malafide and it is only a ruse

to throw the Petitioner out of employment. Though the Petitioner

had applied for the job of a Shikshan Sevak pursuant to an

advertisement, he was initially not given an interview call and it was

only on his intervention that a letter was issued to him on 22nd

August, 2002. The management was actuated with a desire to

oust the Petitioner. The management, it was urged, ought to have

reported the allegation of misconduct to the Grievance committee

which it failed to do: As a result the order of the Grievance

committee should be quashed and set aside and the Petitioner

should be granted reinstatement with consequential benefits.

7. By the judgment and order that was passed by the

Division Bench of this Court on 28th September, 2005 this Court

formed the view that it was only the Grievance committee which

was set up in pursuance of the Government Resolution (noted

above) which could go into the issue of misconduct. The

management was directed to refer the complaint in respect of

which the charge sheet was issued to the committee. This Court

made the rule absolute in terms of prayer clause (a), consequent

upon which the entire proceedings at Exhibit M to the earlier writ

petition were quashed and set aside. The Grievance committee,

upon the judgment of the Division Bench, was required to consider

as to whether there was any substance in the charge of

misconduct which was founded on the complaint of sexual

harassment made on 16th January, 2003 against the Petitioner.

The Grievance committee has founded its entire judgment only on

the basis of the report of the enquiry conducted by the

management. There is merit in the submission which has been

urged on behalf of the Petitioner that under the Government

Resolution dated 13th October, 2000 as construed by the judgment

of the Division Bench of this Court dated 28th September, 2005, the

Grievance committee was required to consider the complaint of

misconduct and to determine whether the misconduct stood

established. That exercise has not been carried out by the

Grievance committee. To that extent, there is merit in the

grievance of Counsel appearing for the Petitioner.

8. It would be necessary to observe at this stage that during

the course of the hearing of these proceedings, counsel appearing

on behalf of the management (the First and Second Respondents)

has fairly accepted this position and has submitted before the

Court that an order of remand may be passed, with a view to

enabling the management to establish the misconduct by leading

evidence before the Grievance committee.

9. Counsel appearing for the Petitioner has urged that no

purpose would be served in an order of remand, the grievance

committee having already held against the Petitioner and it was

submitted that the Petitioner is entitled to reinstatement with

consequential benefits. On behalf of the Petitioner it was also

sought to be urged that the Petitioner has been absolved of the

charge of misconduct. This submission is without any basis and

cannot be accepted. On 2nd July, 2004, when this Court disposed

of Writ Petition 1680 of 2004 it was made clear that the Court was

not rendering any determination on the allegation of misconduct.

The issue of misconduct was thus kept open. In the subsequent

judgment of the Division Bench dated 28th September, 2005

similarly it has been clarified that all issues are left open to be

considered by the Grievance committee. There was no

adjudication by this Court at any stage on whether or not the

charge of misconduct stood established. By the judgment dated

28th September, 2005 the Division Bench allowed the petition filed

by the Petitioner herein only on the ground that the allegation of

misconduct could have been enquired into by the Grievance

committee alone. An order of remand was necessitated on that

count. The infirmity which has been found in the order of the

Grievance committee in the present proceedings is that the

committee has not independently considered whether there was

any substance in the complaint of sexual harassment made against

the Petitioner. The committee was not entitled to rely upon the

report of the enquiry conducted by the management once the

Division Bench had held that the issue of misconduct was one

which could only be considered by the committee. That being the

position, it would be impermissible to accept the plea of the

Petitioner for the grant of reinstatement at this stage. There is a

serious charge of misconduct against the Petitioner. The infirmity

which has been found in the disciplinary proceedings can be cured

by directing the Grievance committee to adjudicate upon the

correctness of the charge of sexual harassment made against the

Petitioner on the basis of the complaint lodged on 16th January,

2007. Pending this determination, there is no question of the

Petitioner being reinstated either with or without consequential

benefits. It is now a settled principle of law that where a defect is

found in a disciplinary proceeding convened by an employer into

an allegation of misconduct, it would not be permissible to grant

reinstatement straightaway and the appropriate order to pass

would be to permit the management to have an opportunity to

defect had occurred.

establish the charge of misconduct from the stage at which the

The question of mala fides again is a

question of fact. The Petitioner has accepted the earlier order of

the Division Bench which has attained finality. Hence, all questions

will have to be left open for adjudication by the Grievance

Committee on remand.

10. In the circumstances, the Petition shall stand disposed of

with the following directions :

i) The order of the Grievance committee dated 16th June,

2007 (Exhibit D) is quashed and set aside and the proceedings

shall stand remitted back to the Grievance committee for a decision

afresh in accordance with the judgment of the Division Bench

dated 28th September, 2005 in Writ Petition 6203 of 2005;

ii) The First and Second Respondents would be at liberty to

lead evidence in support of the charge of misconduct before the

Grievance committee. The Petitioner would be at liberty to cross

examine the witnesses produced by the management. The

Petitioner would also be at liberty to lead such evidence as he

desires in defence to the charge of misconduct;

iii) Both the parties shall appear before the Grievance

committee for receiving directions on 23rd September, 2008. The

committee is requested to expedite the disposal of the proceedings

and to endeavour to do so by 31st December, 2008;

iv) The Petitioner shall continue to remain suspended

pending the disposal of the proceedings before the Grievance

committee. The grievance committee shall inter alia determine as

to whether the charge of misconduct, based on the complaint of

sexual harassment made on 16th January, 2003 has been duly

established. The Grievance committee shall also determine as to

whether the Petitioner is entitled to arrears on account of

honorarium and/or subsistence allowance during the period of

suspension.

11. Rule is made absolute in the aforesaid terms. There

shall, in the circumstances, be no order as to costs.

(SMT. RANJANA DESAI, J.)

(DR. D.Y. CHANDRACHUD, J.)