Arun A. Iyer vs The Board Of Governors
2026 Latest Caselaw 2943 Bom

Bombay High Court

Arun A. Iyer vs The Board Of Governors on 24 March, 2026

Author: R. I. Chagla

Bench: R. I. Chagla

2026:BHC-OS:7056-DB
        Digitally signed
          by MULEY
MULEY     SHUBHAM
SHUBHAM PRAVINRAO
PRAVINRAO Date:
          2026.03.24
          18:49:04 +0530
                                                             1              WP-3224-2024.doc


                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        ORDINARY ORIGINAL CIVIL JURISDICTION
                                           WRIT PETITION NO. 3224 OF 2024

                  Arun A. Iyer,
                  Adult, Aged 45 years, lastly working
                  as Professor in the Department of Humanities
                  & Social Sciences, I.I.T. Bombay, Powai,
                  Mumbai - 400 076                                                        ...Petitioner
                        Vs.
                  1. The Board of Governors,
                  Indian Institute of Techcnology, Bombay
                  IIT Campus, Powai, Mumbai - 400 076

                  2. The Director,
                  Indian Institute of Technology, Bombay
                  IIT Campus, Powai, Mumbai - 400 076

                  3. The Registrar,
                  Indian Institute of Technology, BomSecbay
                  IIT Campus, Powai, Mumbai - 400 076

                  4. Ms. X
                  Hostel 10, IIT Bombay Mumbai - 400 076                                  ...Respondents

                                                -----------------
                  Mr. Ramesh Ramamurthy, Saikumar Ramamurthy and Aalim N. Pinjari for
                  the Petitioner.
                  Mr. Arsh Misra for Respondent Nos.1, 2 and 3.
                  Ms. Surbhi Soni i/b. MGSV & Associates for Respondent No.4.
                                                -----------------

                                                              CORAM     :    R. I. CHAGLA AND
                                                                             ADVAIT M. SETHNA, JJ.
                                                          RESERVED ON   : 07 MARCH, 2026
                                                          PRONOUNCED ON : 24 MARCH, 2026

                  JUDGMENT:

- (Per Advait M. Sethna, J.)

1. Rule. Rule made returnable with the consent of the parties.

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2. This Writ Petition has been filed under Article 226 of the

Constitution of India praying for the substantive reliefs as set out in prayer

clauses (a) to (c) of the Petition. However, Mr. Ramamurthy would urge

this Court to remand the proceedings to the Internal Complaints

Committee / Disciplinary Authority, for conducting a fresh inquiry before

imposing any major penalty on the Petitioner.

3. The Petitioner in the present proceedings is working in the capacity

of a Professor in the department of the Humanities and Social Sciences in

the Indian Institute of Technology, Bombay ("IIT Bombay"). The

Respondent No.4 is the original complainant who preferred a complaint

alleging misconduct against the Petitioner.

4. These proceedings confront us with an interesting issue as to

whether the major penalty of compulsory retirement imposed on the

Petitioner pursuant to the inquiry conducted by the Internal Complaints

Committee constituted under the POSH Act and Rules would necessarily

entail a separate inquiry, with reference to the CCS (CCA) Rules, 1965 and

its applicability in the given factual matrix. This is to be contextually tested

when there is a specific mechanism and procedure prescribed for taking

action qua misconduct viz. sexual harassment at workplace, contemplated

under the aegis of the Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, 2013 ("POSH Act" for short),

POSH Rules, dovetailed with provisions under special statutes such as the

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Indian Institute of Technology Act, (IIT Act) IIT Bombay Policy/Attendant

Rules. Considering the reliefs sought and the arguments advanced we are

not, at this stage, delving in to the merits of the allegations against the

Petitioner.

Factual Matrix:-

5. Certain facts which are necessary for adjudication of this Petition are

as under.

6. A complaint dated 22 March 2023 was filed by Respondent No.4

with the Internal Complaints Committee ("ICC" for short) of Respondent

Nos.1 to 3 against the Petitioner. This was in regard to instances of sexual

harassment as alleged against the Petitioner by Respondent No.4, between

the period March 2022 to September 2022.

7. A report dated 11 December 2023 of the ICC was issued, based

upon the complaint. An initial fact finding inquiry was conducted. The

report duly recorded the summary of allegations; complainant's statement;

summary of Petitioner's statement; summary of Petitioner's defence;

summary of statement of complainant's two witnesses; summary of

statement of Petitioner's witnesses; cross-examination of the said

witnesses.

8. The said report dated 11 December 2023 recorded the findings of

the ICC. Based upon the detailed findings recorded therein, the ICC

recommended imposition of major penalty of the Petitioner's removal from

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service.

9. It was on 4 January 2024 that the above report of the ICC was duly

served upon the Petitioner and its receipt was acknowledged by him.

10. The Petitioner raised objections to the report of the ICC to the Board

of Governors i.e. the Disciplinary Authority, being Respondent No.1.

11. The Respondent No.1-Disciplinary Authority by an inquiry

considered the entire proceedings, pursuant to which on 24 February

2024, it was resolved to impose punishment in the nature of compulsory

retirement of the Petitioner. Respondent No.2 i.e. the Director of IIT,

Mumbai was authorized to take appropriate further action.

12. On 10 April 2024, a Memorandum to show cause why the proposed

penalty of compulsory retirement ought not to be imposed on the

Petitioner along with the minutes of the meeting of Respondent No.1 held

on 24 February 2024 was circulated to the Petitioner, which was received

by the Petitioner on 24 April 2024.

13. Aggrieved by the above, the Petitioner approached this Court in an

earlier round of litigation by filing a Writ Petition No.2756 of 2024

challenging the above Memorandum dated 10 April 2024.

14. The Petitioner on 21 May 2024 filed a preliminary reply to the said

show cause Memorandum dated 10 April 2024.

15. This Hon'ble Court by its order dated 24 May 2024 in the earlier

Writ Petition No.2756 of 2024 directed Respondent No.1 to pass a

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reasoned order after considering the reply of the Petitioner to the above

Show Cause Memorandum.

16. The Petitioner then filed a detailed reply dated 14 June 2024 to the

above.

17. It was on 18 June 2024 that the Respondent No.1 passed the

Impugned Order dated 18 June 2024 ordering compulsory retirement of

the Petitioner from his services at IIT Bombay, with effect from the date of

the said order.

18. The Petitioner, aggrieved by the Impugned Order dated 18 June

2024, has filed the present Petition assailing the Impugned Order.

19. We have extensively heard learned counsel for the parties, examined

the pleadings on record along with the written submissions tendered.

Rival Contentions

Submissions on behalf of the Petitioner:-

20. Mr. Ramamurthy, the learned counsel for the Petitioner, at the outset

submits that the action of the Respondents to impose punishment on the

Petitioner only on the report of ICC, without holding a formal inquiry by

issuance of a charge-sheet, is contrary to Section 13(3)(i) of the Sexual

Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013 ("POSH Act" for short). According to him, the

statutes of the IIT do not lay down the procedure for conducting an

inquiry to impose a major penalty. Therefore, in terms of the decision

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taken in the Council of the IIT held in New Delhi on 6 October 1964 and

Sr. No.8 therein, wherever there are no rules framed by the Institute to

deal with a particular matter, Government of India Rules i.e. Central Civil

Services (Classification, Control and Appeal) Rules, 1965 ("CCS (CCA)

Rules, 1965" for short) will be applicable.

21. Mr. Ramamurthy would submit that the statute of the IIT in sub-

statute No. 9 lays down that major punishment shall be imposed only after

holding an inquiry and such inquiry has not been conducted in the given

case.

22. Mr. Ramamurthy would then submit that the POSH Act under

Section 13(3)(i) provides that if the ICC recommends that a prima facie

case of sexual harassment is made out, then it will recommend to the

employer to take action for misconduct under the Service Rules. Therefore,

POSH Act would entail an inquiry or procedure to be followed before

imposing any punishment. Such being issuance of a formal charge-sheet

under the Service Rules.

23. Mr. Ramamurthy would submit that Policy on the Prevention,

Prohibition and Redressal of Sexual harassment in the workplace with its

attendant Rules and procedure ("IIT Bombay Policy/Attendant Rules" for

short) will not have the effect of overriding statutory rules i.e. CCS (CCA)

Rules, 1965 or the statute of IIT, Bombay. The Policy is only in the nature

of executive instructions which cannot override the statutory rules as

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above framed by the Government India. Therefore, in view of the decision

taken by the IIT council on 6 October 1964, since the procedure for

conducting inquiry for imposing penalty is not stipulated in the statute of

IIT, Bombay, the CCS (CCA) Rules, 1965 would apply to IIT, Bombay for

imposing penalty.

24. Mr. Ramamurthy has submitted that the reliance placed by the

Respondents on the Apex Court decisions in Union of India Vs. Dilip Paul1

and Aureliano Fernandes Vs. State of Goa2 for justifying imposition of

penalty based only on the ICC report, is not proper. This is because both

the said decisions deal with instances of sexual harassment which have

occurred in 2009-10 much before the POSH Act came into force in 2013.

There is no discussion on the provisions of the POSH Act in the said

judgments.

25. Mr. Ramamurthy urged that requirement under Rule 14(2) of the

CCS (CCA) Rules, 1965 refers to the ICC conducting an inquiry as far as

practicable, under the said Rules if no other procedure is prescribed. This

only means that after a charge-sheet is issued under Rule 14(3) would the

ICC be appointed as an Inquiry Authority under Rule 14(5) by the

Disciplinary Authority. After this, the said CCS (CCA) Rules, 1965 provided

for separate procedure for conducting inquiry into the complaints of sexual

harassment which would apply to the Respondent-Institute in the present 1 2023 SCC Online SC 1423 2 2023 SCC Online SC 621

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case unlike the IIT Bombay Policy/Attendant Rules in the form of an

executive instruction, not being applicable in the given case.

26. Mr. Ramamurthy would next submit that the Supreme Court's

decision in Aureliano Fernandes (supra) would relate to complaint of

2009, when the law laid down in Vishaka Vs. State of Rajasthan 3 and in

that of Medha Kotwal Lele Vs. Union of India 4 were in force and effect. In

the present case, the alleged incident occurred in 2022 after enactment of

the POSH Act which would be applicable in the given case. Mr.

Ramamurthy would place due reliance on the decision of the Supreme

Court in Dr. Vijaykumaran C. P. Vs. Central University of Kerala & Ors. 5 and

Nisha Priya Bhatia Vs. Union of India & Anr. 6, which would require a

formal charge-sheet to be issued, under the Service Rules even after an

inquiry under the POSH Act is conducted by the ICC, which is the law

applicable in the case of the Petitioner.

27. Mr. Ramamurthy would submit that the recent decision of the

Supreme Court in Dr. Sohail Malik vs. Union of India & Anr. 7 also supports

the case of the Petitioner. This is to the effect that after report of the ICC,

there has to be a formal charge-sheet under the Service Rules as

applicable.

3 (1997) 6 SCC 241 4 (2013) 1 SCC 311 5 (2020) 12 SCC 426 6 (2020) 13 SCC 56 7 2025 SCC Online SC 2751

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28. Mr. Ramamurthy would reiterate that the IIT Bombay Policy /

Attendant Rules cannot override the provisions of the statutory CCS (CCA)

Rules, 1965 and only such Rules shall prevail. According to him, following

the said Policy/Attendant Rules would mean laying down that without

holding a formal inquiry by issuing charge-sheet under Service Rules,

Respondent No.1-Disciplinary Authority can impose punishment purely on

the basis of the ICC report which was the legal position prior to the POSH

Act coming into force, based on the judgments in Vishaka (supra) and

Medha Kotwal Lele (supra).

29. Mr. Ramamurthy has contended that the judgments of the Supreme

Court in Dr. Vijaykumaran C. P. (supra) and Nisha Priya Bhatiya (supra)

have not been overruled in the subsequent decisions of Dilip Paul (supra)

and Aureliano Fernandes (supra) as the said decisions have not dealt with

the provisions of the POSH Act. In fact, he points out that, in the

subsequent decisions there is no reference to the earlier Supreme Court

decisions in Dr. Vijaykumaran C. P. (supra) and Nisha Priya Bhatiya

(supra).

30. Mr. Ramamurthy referring to the rejoinder dated 6 March 2025 filed

on record would contend that the judgment in the case of Prof. (Dr.) D.

Ramakrishnan vs. The Board of Governors, Indian Institute of Technology

& Anr.8 which has followed the judgments in the cases of Dr. Vijaykumaran

8 Writ Petition No. 1624 of 2022, decided on 21 January 2025

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C. P. (supra) and Nisha Priya Bhatiya (supra) is applicable in the present

case. Accordingly, Mr. Ramamurthy would submit that the Impugned

Order is required to be set aside and the matter be remanded to the

Disciplinary Authority to take appropriate decision based on the ICC report

under Section 13(3)(i) of the POSH Act, including issuance of formal

charge-sheet under the service Rules.

31. Mr. Ramamurthy would finally pray that the Petition be allowed and

the Rule be made absolute.

Submissions on behalf of the Respondents:-

32. Mr. Mishra, learned counsel appearing for Respondent Nos. 1 to 3,

has categorically controverted the submissions advanced by Mr.

Ramamurthy. During the course of his arguments, he referred to the

Affidavit-in-Reply filed on behalf of the said Respondents dated 16 August

2024 by one Ganesh Kisanrao Bhorkade, Registrar, IIT Bombay. Mr. Mishra

submitted that the present petition is not maintainable in view of the

alternate remedy of Appeal available under Rule 11 of the IIT Bombay

Policy read with Section 18 of the POSH Act, which provides an equally

efficacious remedy. The sub-statute 10, 11 and 12 of Statute 13 (Terms

and conditions of service of permanent employees) of the IIT Bombay

Statutes also provides for a statutory Appeal to the Visitor against the

orders passed by the Respondent No. 1-Disciplinary Authority. The

Petitioner ought to have exhausted the said remedy before approaching

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this Court. Therefore, according to him, the petition ought not to be

entertained on this ground alone.

33. Mr. Mishra would submit that the report of the ICC dated 11

December 2023 is deemed to be the report of the Inquiry Authority. The

action taken by the Disciplinary Authority is strictly in terms of the

provisions of Section 13(3)(i) of the POSH Act and Rule 9 of the Sexual

Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Rules, 2013 ("POSH Rules" for short). There is no infirmity,

much less illegality, in this regard which would warrant interference.

34. Mr. Mishra has drawn our attention to the decision in Medha Kotwal

Lele (supra) and Dilip Paul (supra) where the Supreme Court has held that

the report of the ICC ought to be treated as that of an Inquiry Authority.

35. Mr. Mishra would contend that this is a case where the principles of

natural justice have been fully complied with by the Respondents. This is

inasmuch as the documents have been provided to the Petitioner, who has

duly participated in the inquiry and has had ample opportunity to lead

evidence and even cross-examine witnesses.

36. Mr. Mishra then submitted that the decision relied upon by Mr.

Ramamurthy in Prof. (Dr.) D. Ramakrishnan (supra) is distinguishable,

considering the fact that the said decision was not rendered in the context

of action for misconduct under the POSH Act to be taken in accordance

with the POSH Rules and the IIT Bombay Policy/Attendant Rules as

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prescribed under Section 13(3)(i) of the said Act. In this context, he

submitted that there would be no occasion to apply the proviso to Rule

14(2) of the CCS (CCA) Rules in the given facts and circumstances.

Therefore, the said decision is clearly distinguishable qua the present case.

37. Mr. Mishra would urge that the mere non-framing of articles of

charge cannot be treated as fatal so far as the Applicant is concerned. This

is because the Applicant was aware of the deposition of the complainant,

which had been disclosed to him, including the nature of the allegations

levelled against him. He was also given an opportunity to submit his reply

and furnish a list of witnesses. Therefore, no prejudice would be caused to

the said Applicant. For this reason, the decision in Dilip Paul (Supra)

would clearly apply to the present case.

38. Mr. Mishra has gainfully referred to the recent decision of the

Supreme Court in Dr. Sohail Malik (Supra), where the Court, in the

context of misconduct under the POSH Act and the Rules framed

thereunder, referred to the procedure under the said Act which may be in

such manner as may be prescribed and Rules for taking action in that

regard. This again makes it clear that there is no occasion to fall back on

the CCS (CCA) Rules, 1965 when action for misconduct is squarely

provided for under the POSH Act and the Rules framed thereunder, which

can be in such manner as may be prescribed. According to him, the

principles and the ratio laid down in the said decision would clearly be

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applicable in the present case, which would render the submissions of Mr.

Ramamurthy untenable.

39. Mr. Mishra would urge that the Petitioner unconditionally accepted

all the Rules and Regulations of Respondent-Institute at the time of

joining. In view thereof, the IIT Bombay Policy and its Attendant Rules

were also unconditionally accepted by the Petitioner, forming part of the

Rules and Regulations of the Respondent-Institute. It is, therefore, not

open to the Petitioner to now insist on a departure from the said IIT

Bombay Policy/Attendant Rules, which forms an integral part of the Rules

and Regulations of Respondent-Institute, merely because it does not suit

the interest of the Petitioner.

40. Mr. Mishra has referred to Section 13 of the Indian Institutes of

Technology Act, 1961 ('IIT Act' for short) to contend that the Board of any

Institute, such as IIT Bombay in the present case, is responsible for the

general superintendence, direction, and control of the affairs of the

Institute. The IIT Act confers powers upon the Board, which acts as the

Disciplinary Authority, to take decisions on policy matters relating to the

administration and functioning of the Institute. Accordingly, under the

authority of this law, the Respondent-Institute has framed its Policy and

Attendant Rules, which derive their authority from the said statute and are

in the nature of a special statute. On this ground as well, Mr. Mishra

submits that the general provisions of the CCS (CCA) Rules, 1965 will not

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come into play, much less override the specific provisions contained in the

IIT Bombay Policy/Attendant Rules, which have their source in the IIT Act.

41. For all of the above reasons Mr. Mishra would submit that the

petition is devoid of merit and should be dismissed.

Analysis:-

42. On a careful perusal of the report of the ICC dated 11 December

2023, we find that it is a report of the Inquiry Committee/Authority, in

terms of the provisions of the POSH Act, POSH Rules read with the IIT

Bombay Policy/Attendant Rules. There is no quarrel in this regard. In fact

the decision of the Supreme Court in Medha Kotwal Lele (supra) followed

by a recent decision in Dr. Sohail Malik (supra) and the decision in Dilip

Paul (supra) make it clear that the Complaints Committee as originally

constituted even under the CCS (CCA) Rules, 1965 is deemed to be an

Inquiring Authority. Accordingly, pursuant to the enactment of the POSH

Act in 2013, the ICC is now treated as an Inquiry Committee/Authority

under the provisions of the said Act, which conducts a preliminary fact

finding inquiry.

43. The record bears out that the report of the ICC dated 11 December

2023 inter alia provides for the summary of allegations; complainant's

statement; summary of Petitioner's statement; summary of Petitioner's

defence; summary of statement of complainant's two witnesses; summary

of statement of Petitioner's witnesses and cross-examination of the said

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witnesses. Such report of the ICC was duly served and received by the

Petitioner on 4 January 2024. Accordingly, after providing a copy of the

report of the ICC to the Petitioner on 4 January 2024, the

recommendations arrived at in such report were forwarded to the

Disciplinary Authority being the Respondent No.1, in the present case.

44. This, in our view, would constitute the first stage inquiry as also

envisaged under the judgments cited (supra). Mr. Ramamurthy has

strenuously urged that pursuant to the first stage, the Respondent No.1 i.e.

the Disciplinary Authority without a separate inquiry, arrives at a

conclusion to impose a major penalty of compulsory retirement on the

Petitioner. This according to him is in the teeth of the POSH Act as also

Rule 14 of the CCS (CCA) Rules, 1965 which he would submit are to be

mandatorily followed. In this regard, Mr. Ramamurthy has been at pains

to point out sub-statute no. 9 of the statute No. 13 (Terms and Condition

of Service of Permananent Employees) from the IIT Bombay Statutes, the

relevant portion of which reads thus:-

"The following penalties may for good and sufficient reasons and as hereinafter provided, be imposed on any member of the staff :-

i) Censure;

ii) withholding of increments or promotion;

iii) recovery from the whole or part of any pecuniary loss caused to the Institute by negligence or breach of orders;

iv) reduction to lower Service, grade or post or to a lower stage in a time scale;

v) compulsory retirement;

vi) removal,from service which shall not be a disquaiification for future

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employment under the Institute;

vii)dismissal from service wich shall ordinarily be a disqualification for future employment under the Institute.

"vii) dismissal from service which shall ordinarily be a disqualification for future employment under the Institute.

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

No order imposing on any member of the staff any of the penalties specified at (i) to (iii) 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."

(Emphasis supplied)

45. The above postulates an inquiry which in the given factual

complexion has been duly conducted in the manner so

prescribed/stipulated. Pursuant to the receipt of ICC report dated 11

December 2023, the Petitioner had raised objections on such report to

Respondent No.1-Disciplinary Authority. The inquiry further progressed in

terms of a proposal of Respondent No.1-Disciplinary Authority. This has

taken into consideration the first stage inquiry proceedings, report of the

ICC and written representation of the Petitioner thereby resolving that a

major penalty of compulsory retirement be imposed on the Petitioner,

authorizing the Director to take further action and communicate the said

decision to the Petitioner. The inquiry further continued by issuance of a

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Show Cause Notice/Memorandum dated 10 April 2024 to the Petitioner.

The Petitioner filed his detailed reply dated 14 June 2024 to the same. All

of this was duly considered by the Respondents before passing the final

Impugned Order dated 18 June 2024.

46. It is thus clear that the Petitioner has participated at every stage of

the inquiry which has culminated in issuance of the Impugned Order. The

record does not bear out even a single instance of violation of the

principles of natural justice qua the Petitioner. Accordingly, we are of the

considered view that the mandate under sub-statute no. 9 (supra) as

referred to by Mr. Ramamurthy has been complied with in letter and spirit,

in the given case. It is not as if that the Respondents have thrust the

punishment of compulsory retirement of Petitioner, solely on the basis of

the report of ICC.

47. According to Mr. Ramamurthy the statutes of IIT do not lay down

any procedure for conducting an inquiry to impose a major penalty. He

would therefore refer to the decision taken in the IIT Council on 6 October

1964. He would contend that such decision envisaged that where no Rules

have been framed by an Institute to deal with a particular matter, the CCS

(CCA) Rules, 1965 will apply. To analyze such submission in its proper

perspective, it is necessary to refer to Section 13 of the POSH Act, the

relevant portion of which reads thus:-

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"Section 13. Inquiry report - (1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.

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

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

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

(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:

Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:

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

(4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him."

(Emphasis supplied)

48. A perusal of the above clearly contemplates taking action for sexual

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harassment by the concerned employer can be in two ways (i) in

accordance with the provisions of service rules applicable; OR (ii) where

no such service rules have been made, in such manner as may be

prescribed. This is to be read with the POSH Rules more particularly Rule

9 which reads thus:-

"Rule 9. Manner of taking action for sexual harassment. - Except in cases where service rules exist, where the complaints Committee arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be, to take any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counselling session or carrying out community service.

The words "except in cases where service rules exist ....." (supra)

makes it evident that the said Rules under the POSH Act clearly

contemplate a situation for taking action, for sexual harassment including

terminating the employee from service in a case where the service rules do

not exist. In such scenario, Section 13(3) of the POSH Act clearly

stipulates that in such cases the action for sexual harassment may be taken

in such manner as may be prescribed. It is in this context that one needs to

fall back on the IIT Act read with Bombay Policy/Attendant Rules.

49. At this juncture, we find it apposite to refer to Section 13(2) of the

IIT Act which reads thus:-

"13. Functions of Board.- (1) ......

(2) Without prejudice to the provisions of sub-section (1), the Board

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of any Institute shall--

(a) take decisions on questions of policy relating to the administration and working of the Institute;

(b) institute courses of study at the Institute;

(c) make Statutes;

(d) institute and appoint persons to academic as well as other posts in the Institute;

(e) consider and modify or cancel Ordinances;

(f) consider an pass resolutions on the annual report, the annual accounts and the budget estimates of the Institute for the next financial year as it thinks fit and submit them to the Council together with a statement of its development plans;

(g) exercise such other powers and perform such other duties as may be conferred or imposed upon it by this Act or the Statutes."

It is thus clear that the Board has been given wide powers under the

said statutory provision inter alia to take decision on questions of policy

relating to the administration and working of the institute. The

Respondent No.1-Board also has been conferred with the power to appoint

such committee as it considers fit and necessary for the exercise of powers

and performance of duties under the IIT Act. In this context, we find force

in the submission of Mr. Mishra that the said Policy/Attendant Rules of IIT

Bombay is not dehors the IIT Act. In fact, such Policy/Attendant Rules

clearly refers to the POSH Act and Rules.

50. Contextually, we deem it necessary to reproduce the relevant

portion of the IIT Bombay Policy/Attendant Rules which provides for the

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legal context. It reads thus:-

"1. LEGAL CONTEXT ...

...

...

...

...

...

d) As an educational and research institution established on a 750-acre campus, there are several types of legal relations viz.

employer-employee, student faculty, research scholar-supervisor, vendor-customer, residents and visitors, auto-drivers and passengers etc. In view of this, to prevent or deter the commission of acts of sexual harassment and to provide a procedure for the solution, settlement or prosecution of acts of sexual harassment, the following policy is being put in place by the Institute."

51. The above makes it clear that the procedure for initiating action in

relation to sexual harassment as a misconduct as referred to in Section

13(3)(i) of the Act is clearly provided for in the IIT Bombay

Policy/Attendant Rules. Explanation 1 to clause 4 of the said Policy is also

significant, the relevant extract of which is reproduced below:-

"4. Jurisdiction ...

...

1. Explanations

a) Any complaint outside of these specifications may be examined by the GC-ICC in terms of jurisdiction and taken up for consideration.

b) When the respondent is an employee, the GC-ICC shall have inherent jurisdiction under SHWW Act of 2013 & SHWW Rules 2013 to deal with

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complaints of sexual harassment at the workplace. Such inquiry shall be made as per the provisions of the service rules applicable to the respondent. Where the Central Civil Services (Conduct) Rules, 1964 (CCS(C) Rules) are applicable to the respondent, it may be noted that sexual harassment is prohibited under Rule 3C of the said Rules and the inquiry of the GC-ICC will be the departmental proceedings and the procedure as laid down under this policy will prevail over that as laid down under Central Civil Services (Classification, Control and Appeal) Rules (CCS (CCA) Rules) as provided under the Proviso of Rule 14 (2) of the CCS (CCA) Rules."

Emphasis Supplied

Therefore, Explanation 1(b) to clause 4 above envisages that a clear

and exhaustive procedure as laid down under the IIT Bombay

Policy/Attendant Rules, which would prevail over that under Rule 14(2) of

the CCS (CCA) Rules, 1965.

52. A bare perusal of Section 13(3)(i) of the POSH Act read with Rule 9

of the POSH Rules evidently indicate no reference whatsoever to the CCS

(CCA) Rules, 1965. In fact to interpret the expression "in such manner as

may be prescribed" which appears in Section 13(3)(i) of the POSH Act is

where the IIT Bombay Policy/Attendant Rules would come into play, to

throw light on the procedure which is duly prescribed thereunder for an

action to be taken in case of sexual harassment at workplace, under the

aegis of the POSH Act and Rules.

53. Furthermore, clause 10 of the said IIT Bombay Policy/Attendant

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Rules deals with report on findings and recommendations and action

taken, of which the relevant portion reads thus:-

"xiii. Subject to the consideration of an appeal, if any, against a proposed penalty the Disciplinary Authority shall take disciplinary action within sixty days of receipt of the final report from the GC-ICC and shall inform the GC-ICC and the complainant on the action taken. It is clarified that the report of the GC-ICC shall be treated as the inquiry report on the basis of which penalty can be proposed/imposed against the respondent. An appeal not filed within one month of receipt of notice will be liable to be rejected."

(Emphasis supplied)

54. The above clarifies that the report of the ICC shall be treated as the

inquiry report on the basis of which penalty can be proposed/imposed

against the Petitioner. We are dealing with a situation of action for

misconduct as envisaged under Section 13(3)(i) of the POSH Act. The

POSH Act and POSH Rules also contemplate action for such misconduct in

such manner as may be prescribed. This being the case, one need not in

the given factual complexion, take recourse to CCS (CCA) Rules, 1965.

Despite specific query from the Court to Mr. Ramamurthy whether there

are any Rules in this regard to mandate a separate inquiry or make

reference to the CCS (CCA) Rules, 1965, there is no such Rule, much less

statutory provision pointed out to us, in this regard. In fact, the IIT

Bombay Policy/Attendant Rules which are to be read in the context of IIT

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Act, expressly excludes the applicability of CCS (CCA) Rules, 1965. For

such reasons, the contentions advanced by Mr. Ramamurthy do not

persuade, much less convince us.

55. Adverting to the submission of Mr. Ramamurthy that the IIT Bombay

Policy/Attendant Rules can never partake the nature of Rules even though

it refers to the Attendant Rules and procedures, in the given set of facts, is

not well founded. This is inasmuch as Section 13 of the POSH Act read

with Rule 9 of the POSH Rules specifically provide for an action to be

taken against the delinquent/Petitioner for sexual harassment at

workplace in such manner as may be prescribed, as elucidated.

56. We have noted Mr. Ramamurthy's submission to the effect that a

second stage inquiry ought to commence with the issuance of a charge-

sheet, a procedure which is ordinarily resorted to, under the CCS (CCA)

Rules, when applicable. The conduct of the parties concerned, in the given

facts, is an essential and necessary concomitant, inextricably connected to

the statutory mandate under the canopy of the POSH Act, POSH Rules, IIT

Act, IIT Bombay Statutes and the Policy/Attendant Rules. In such matters

involving allegations not merely of indiscipline but of serious misconduct,

a myopic approach under the extant legal framework ought not to be

adopted. Misconduct falling under the aegis of the POSH Act are to be

dealt with utmost gravitas. The findings of a specialized fact finding body

like the ICC followed by the decision of the disciplinary committee is

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pursuant to a full fledged inquiry wherein the Petitioner has duly and fully

participated. This has been undertaken 'in such manner as may be

prescribed' as stipulated under Section 13(3)(i) of the POSH Act. In view

thereof, there cannot be a double inquiry for the same issue/subject

matter/cause of action. Therefore, Mr. Ramamurthy is not correct in

submitting that a charge-sheet ought to be issued prior to commencement

of a second stage inquiry as provided under the CCS (CCA) Rules if

applicable, which is not the case in the given facts.

57. At this juncture it would be apposite to refer to the decision of the

Supreme Court in Dilip Paul (Supra). The Supreme Court has by referring

to the earlier decision in Aureliano Fernandes (supra) in the context of

allegations of sexual harassment at workplace, held that non-framing of

articles of charge by the Committee cannot be treated as fatal. Nor can the

Appellant be heard to state that he was completely in dark as to the nature

of allegations levelled against him and was not in a position to respond

appropriately. These observations are apposite and applicable in the given

factual matrix.

58. Mr. Ramamurthy has sought to distinguish the judgments cited by

Mr. Mishra in Dilip Paul (supra) and Aureliano Fernandes (supra). This on

the basis that the instances of sexual harassment are to be examined on

the anvil of pre and post enactment of the POSH Act. However, for the

reasons set out (supra) such distinction sought to be drawn by Mr.

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Ramamurthy would not be determinative, much less relevant, for the

purposes of addressing the issues/controversy, arising in the present

proceedings.

59. In fact, we find that in the present facts, adequate opportunity was

afforded to the Petitioner not just by the ICC but also by the Respondent

No.1-Disciplinary Authority at every stage, including issuance of show

cause notice, responding to the same, after which the Impugned Order was

passed. This is not a case of deprivation of opportunity to the Petitioner

but a case of complete opportunity and fair hearing to the Petitioner,

before imposing the major penalty on him. Thus, in our view no prejudice

whatsoever has been caused to the Petitioner in the given case where the

procedure to be followed and the manner in which it has to be followed

under the said/applicable special statutes, has been fully complied with by

the Respondents. The inquiry would embrace all stages from the report of

the ICC to its culmination in the Impugned Order leaving no ambiguity

and/or necessity to fall back on CCS (CCA) Rules, 1965, which in any

event, will have no application, for the reasons elucidated above.

60. We have duly noted the reliance placed by Mr. Ramamurthy on the

decision in Dr. Vijaykumaran C. P. (supra). A careful perusal of paragraph

12 on which Mr. Ramamurthy placed emphasis would indicate that the

Supreme Court has held that it may not be advisable to confer the benefit

on such employee by merely passing an order of termination. To take such

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complaints to its logical conclusion, the Supreme Court has referred to

initiating a departmental inquiry or regular inquiry as per Service Rules

which ought to be followed by other actions as the law would mandate.

However, in the given case, we are confronted with a situation, where even

as per the Petitioner, there are no specific Rules under the statutes of IIT

which refer to the procedure under the CCS Rules, for conducting an

inquiry to impose major penalty. In such situation, one ought to take

recourse to and be guided by Section 13(3)(i) of the POSH Act which

refers to an action for sexual harassment as a misconduct to be taken in

such manner as may be prescribed. In our view, the procedure in the

manner prescribed is succinctly laid down in the IIT Bombay

Policy/Attendant Rules to be read in sync with the IIT Act which cannot be

departed from. Moreover, the IIT Bombay Policy/Attendant Rules are in

conformity with the IIT Bombay Statutes.

61. Similarly, we have also considered Mr. Ramamurthy's emphasis and

reliance on the decision in Nisha Priya Bhatia (supra), more particularly

paragraph 97 of the said judgment. There is no quarrel with what the

Supreme Court has stated that two inquires cannot be mixed up with each

other and similar procedural standards cannot be prescribed for both. It is

equally pertinent to note that in this context, the Supreme Court refers to

departmental inquiries, prosecution, penalties, proceedings and action on

inquiry report initiated in accordance with the CCS (CCA) Rules, 1965.

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This for the reasons discussed above are not applicable to the given case.

The said decision thus being distinguishable in the given facts, does not

assist Mr. Ramamurthy.

62. We may now advert to a recent Supreme Court decision in Dr. Sohail

Malik (supra). The Supreme Court has inter alia taken note of the Office

Memorandum dated 16 July 2015 on which Mr. Ramamurthy has placed

much reliance. It has duly observed that particular reference, in this

context, must be made to Section 13(3)(i) of the POSH Act. The ICC upon

reaching the conclusion that the allegations against the Respondents are

proved, shall recommend to the employer to take disciplinary action for

sexual harassment as a misconduct in accordance with the provisions of

the applicable Service Rules of the Respondent. Juxtaposing this to the

given facts, it is clear that the action for such misconduct qua the

Petitioner is resolved to be taken by Respondent No.1-Disciplinary

Authority. It is not the ICC which itself has taken the disciplinary action

against the Petitioner. The Respondents have, therefore, acted in

conformity with Section 13(3)(i) of the POSH Act read with the POSH

Rules and the procedure prescribed in such manner as stipulated under the

IIT Bombay Policy/Attendant Rules. For such reasons, the steps taken,

procedure followed by the Respondents would once again pass the muster

and meet the required statutory criteria, as discussed (supra).

63. We have also examined Mr. Ramamurthy's stand on the judgment of

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a co-ordinate Bench of this Court in Prof. (Dr.) D. Ramakrishnan (supra).

Considering the submissions advanced, read with the judgments which

have now been cited before us, in our view the said decision is

distinguishable in the given factual matrix and does not take the case of

the Petitioner any further.

64. We now advert to the submission of Mr. Mishra for the Respondents

to the effect that sub-statute 10, 11 and 12 of Statute 13 (Terms and

conditions of service of permanent employees) of the IIT Bombay Statutes

provides for a statutory Appeal to the Visitor which is against the orders

passed by the Respondent No. 1- Disciplinary Authority. From such

statutory scheme it appears that an equally efficacious remedy is provided

under the said IIT Bombay Statutes. The grievances of the Petitioner can

be appropriately addressed by resorting to such appellate remedy, as

provided under the said statute.

65. Accepting the contentions as advanced by Mr. Ramamurthy would

militate against the very object, purpose and purport of the POSH Act and

Rules, specifically addressing the issue of sexual harassment, given that the

Act is a complete code. It contemplates a comprehensive statutory

mechanism for undertaking an inquiry and taking action in the

manner/procedure prescribed under Section 13(3)(i) of the POSH Act,

when the allegation of sexual harassment is proved. Accordingly such

procedure in the manner prescribed is laid down in the IIT Bombay

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Policy/Attendant Rules to be read harmoniously with the IIT Act and IIT

Bombay Statutes.

66. It is settled that special laws would always prevail over the general

laws and that general provisions should yield to the specific provisions. In

view thereof, the general provision under Rule 14 of the CCS (CCA) Rules,

1965 or its proviso is not required to fill in the gaps when there are none.

This is not a case of "unoccupied interstices" where any gap in the Rules

and/or instructions is to be filled. This principle was duly considered by

the Supreme Court in Institute of Chartered Accountants of India v/s. L. K.

Ratna and Ors.9 and S. L. Kapoor vs Jagmohan and Ors.10

67. Before parting, we may observe that in the case of special statutes

like the present and the Rules framed thereunder, a party like the

Petitioner has participated duly and fully in a comprehensive inquiry. This

is right from the report of the ICC, Show Cause Notice/Memorandum,

Reply resulting in the Impugned Order. The statutory scheme under the

POSH Act, POSH Rules read with the IIT Act, IIT Bombay Statutes, IIT

Bombay Policy/Attendant Rules do not contemplate the rigmarole of

another inquiry, on the very same subject matter. We are reminded of the

adage that 'procedure is the handmaiden of justice' which ought to be

applied so as to subserve substantial justice. In view thereof, accepting the

contentions of the Petitioner which would amount to permitting a double 9 (1986) 4 SCC 537 10 (1980) 4 SCC 379

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inquiry on the very same subject matter, shall undermine the avowed

object of special statutes like the POSH Act, applicable in the given case.

Taking such course would lead to an absurdity, not being conducive to

both the Petitioner and Respondent No.4. We are not inclined to

countenance such a stand/approach which would compel us to take a

hyper technical view of the matter in the given case, which even the law

does not mandate. Therefore, we find no merit in the case put up by the

Petitioner. Besides it being legally vulnerable, it neither appeals to our

conscience, nor would, in our considered view, meet the ends of justice.

We make it clear that we have not examined the merits of allegations

against the Petitioner in these proceedings.

68. In light of the foregoing discussion we pass the following order:-

ORDER

a) Petition is dismissed. Rule is discharged.

b) No order as to costs.

            [ADVAIT M. SETHNA, J.]                           [R.I. CHAGLA, J.]


      After Pronouncement:-

69. At this juncture, we have considered the request of Mr. Ramamurthy.

Though we have not delved into the merits of the matter, needless to

clarify that in the event the Petitioner decides to avail of the alternate

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statutory remedy of Appeal against the Impugned Order dated 18 June

2024, the Appeal, if filed, shall be considered on its own merits and

decided in accordance with law.

          [ADVAIT M. SETHNA, J.]                     [R.I. CHAGLA, J.]