Calcutta High Court (Appellete Side)
Prama Bhattacharjee vs The State Of West Bengal And Others on 12 December, 2023
Author: Kausik Chanda
Bench: Kausik Chanda
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Kausik Chanda
W.P.A. No.2009 OF 2023
PRAMA BHATTACHARJEE
-VERSUS-
THE STATE OF WEST BENGAL AND OTHERS.
AND
W.P.A. No.1134 OF 2023
JAYANTA RANA
-VERSUS-
THE STATE OF WEST BENGAL AND OTHERS.
For the petitioner and : Mr. Kallol Basu, Adv.,
private respondent Mr. Suman Banerjee, Adv.
(W.P.A. No.1134 of 2023)
For the petitioner and : Mr. Debashis Banerjee, Adv.,
private respondent no.6 Mr. Rakesh Jana, Adv.
(W.P.A. No.2009 of 2023)
For the College : Mr. Anindya Bose, Adv.,
Mr. Dipendu Mandal, Adv.
For the UGC : Mr. Anil Kumar Gupta, Adv.,
(W.P.A. No.2009 of 2023)
For the State : Mr. Tapas Kr. Dey, Adv.
(W.P.A. No.1134 of 2023)
For the State : Mr. Manas Kumar Sadhu, Adv.,
(W.P.A. No.2009 of 2023)
Hearing concluded on : 27.07.2023
Judgment on : 12.12.2023
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Kausik Chanda, J.:-
The petitioner in WPA No.2009 of 2023, serving as an Assistant
Professor in the Department of English at Netaji Satabarshiki Mahavidyala,
lodged a complaint under the Sexual Harassment of Women at Workmen
(Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to
"the Act of 2013"), against respondent no.5 in WPA No.2009 of 2023, an
Associate Professor of the said College.
2. On the basis of the complaint, a proceeding was initiated by the
Internal Complaints Committee of the College (hereinafter referred to as
"the ICC"). The said committee, after enquiring into the allegations,
dropped the proceedings against respondent no.5 citing limited material
evidence and the absence of specified witnesses.
3. The decision of the committee as communicated to the petitioner on
August 17, 2022, was challenged by the petitioner by filing a statutory
appeal under Section 18 of the Act of 2013, before the Additional Labour
Commissioner, Government of West Bengal, appointed under Clause (a) of
Section 2 of the Industrial Employments (Standing Orders) Act, 1946.
4. By an order dated January 19, 2023, the said Appellate Authority
rejected the appeal on the ground that the appropriate forum of
adjudication of the appeal is the Appellate Authority under Regulation 8 (5)
of the University Grants Commission (Prevention, Prohibition and
Redressal of Sexual Harassment of Women's Employees and Students in
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Higher Educational Institutes) Regulations, 2015 (hereinafter referred to as
"UGC Regulations, 2015").
5. The order of the Appellate Authority has been assailed in WPA
No.2009 of 2023.
6. It appears that being cognizant of the aforesaid ICC report, the
Additional Director of Public Instructions, Chairperson of the Enquiry
Committee, ICC, Educational Directorate, West Bengal by an order dated
December 28, 2022, requested the College to reconstitute the ICC as per
University Grants Commission's norms and submit the report to the
Educational Directorate after ratification from the Governing Body of the
College.
7. By filing WPA No.1134 of 2023, respondent no.5 in W.P.A. No.2009 of
2023 has challenged the said order dated December 28, 2022.
8. In view of the shared facts and legal issues, the aforesaid two writ
petitions were heard together.
9. It has been submitted by the petitioner in WPA No.1134 of 2023 that
it is beyond the scope and jurisdiction of the University Grants Commission
to designate a separate body or authority for adjudication of a statutory
appeal preferred under Section 18 of the Act of 2013.
10. The petitioner argues that Regulation 2(g) of the UGC Regulations,
2015, defines the Executive Authority of the Higher Educational Institution
as the Chief Executive Authority of the Higher Educational Institution, in
which the general administration of the institution is vested, and for public
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funded institution, the Disciplinary Authority. It is thus apparent that the
Executive Authority, in the Higher Educational Institutions, is the
Disciplinary Authority and a Disciplinary Authority cannot act as an
Appellate Authority over and above an enquiry report recommending
disciplinary actions.
11. It has been submitted that in view of the judgment delivered by the
Supreme Court reported at (2020) 13 SCC 56 (Nisha Priya Bhatia v.
Union of India), the findings or recommendations of an Internal
Complaints Committee are in the nature of a fact-finding report based on
which the Disciplinary Authority would initiate further disciplinary action.
Therefore, the Disciplinary Authority cannot act as an Appellate Authority
over the recommendations or findings of the Internal Complaints
Committee.
12. It has been further submitted that Section 18 of the Act of 2013
provides 90 days' time to prefer an appeal from the recommendations of the
ICC while UGC Regulations, 2015 provides for a limitation to 30 days.
13. The petitioner has argued that she has a right to prefer an appeal
against the impugned recommendation of the ICC under Section 18 of the
Act of 2013 since the relevant College Campus falls within the purview of
the definition of "College" under Section 2(1) of the West Bengal College
Teachers (Security of Service) Act, 1975 (hereinafter, referred to "the said
Act of 1975"). The service of the petitioner is guided as per the provisions of
the said Act. No Appellate Tribunal has been constituted in terms of
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Section 14 of the said Act of 1975. Therefore, the Appellate Authority
prescribed under Rule 11 of the Sexual Harassment of Women at Workmen
(Prevention, Prohibition and Redressal) Rule, 2013 (hereinafter referred to
as "the Rules of 2013"), is the Appellate Authority as notified under Clause
(a) of Section 2 of the Industrial Employments (Standing Orders) Act, 1946.
14. On behalf of the petitioner in WPA No.2009 of 2023, it has been
submitted that the UGC Regulations, 2015, are the applicable regulations
in the present case. The relevant College comes within the definition under
Section 12A (1)(b) of the University Grants Commission Act, 1956. The UGC
Regulations, 2015 are applicable to the relevant College as the same is a
"Higher Educational Institute". Therefore, under Regulation 8(5) of the UGC
Regulations 2015, an appeal should be preferred against the finding of the
Internal Complaints Committee before the Executive Authority of the
Higher Educational Institutes, which is the Governing Body of the College
in the present case. In this regard, reliance has been placed upon the two
judgments passed by two Single Benches of this Court in W.P. No.14093
(W) of 2018 (Dr. Rajnarayan Roy v. State of West Bengal) and in W.P.
No.2991 (W) of 2016 (Pradip Mandal v. Union of India).
15. It has been further submitted that the State authorities have no
jurisdiction to make any comment on any of the aspects of the ICC
proceedings which are within the exclusive domain of the statutory
authority of the College. It has been submitted that the West Bengal
Universities and Colleges (Administration and Regulations) Act, 2017,
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cannot override the provision of the University Grants Commission Act,
1956. Therefore, the order dated December 28, 2022, suffers from an
inherent lack of jurisdiction.
16. It has further been submitted that the report of the ICC is not a
preliminary report. A conjoint reading of Section 13 of the Act of 2013 and
Rule 9 of the Rules of 2013, clearly suggests that after the report of the
ICC, the employer is to decide the quantum of punishment under the
service rules implying that the report of ICC is to be treated as an enquiry
report, not as a preliminary enquiry report.
17. It has been argued that the UGC Regulations of 2015 do not take
away or abridge any rights or obligations conferred under the Act of 2013.
The Act of 2013 is not a complete Code.
18. It has been further contended that the Governing Body of a College,
while acting as Appellate Authority does not become a judge of its own
cause since the report of the ICC is not to be construed as the report of the
Governing Body and the Governing Body is not sitting over in appeal
against its own report.
19. On behalf of the University Grants Commission, it has been
submitted that prior to the Act of 2013 came into force, on January 8,
2013, the University Grants Commission had passed an order to constitute
a Task Force to review the measures for ensuring the safety of women on
campuses and programmes for gender sensitisation.
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20. The Task Force in its report recognised that all women and some
men can become the target of sexual harassment and violence. The report
of the Task Force found that the Act of 2013 only addresses the issue of
protection of women employees and is not gender neutral. Men employees,
if subjected to sexual harassment, cannot claim protection or relief under
the law.
21. Based on the recommendation of the Task Force, in the year 2015,
the University Grants Commission has exercised the powers under Section
26 (1) (g) of the University Grants Commission Act, 1956 read with Section
20 (1) of the said Act came out with the regulation namely, the University
Grants Commission (Prevention, Prohibition and Redressal of Sexual
Harassment of Women Employees and Students in Higher Education
Institutions) Regulations, 2015. The Regulation came into effect on May
2016.
22. It has been submitted that the UGC Regulations, 2015 is not in
derogation with the Act of 2013, in fact, it is an additional measure taken
to safeguard the interest of students and other minor male individuals.
Thus, the Commission with exclusive regulatory and monitoring power over
the institutions, recommended the institutions to follow the UGC guidelines
accompanied with the UGC Regulations, 2015 for all purposes.
23. The University Grants Commission argued that every Higher
Educational Institution is bound to follow the UGC Regulations, 2015.
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24. Before delving into the arguments as advanced by the parties before
this Court, it is necessary to note the relevant statutory frameworks.
25. The Act of 2013 is an enactment of the Parliament following the
directive of the Supreme Court passed in the case reported at (1997) 6 SCC
241(Vishaka v. State of Rajasthan).
26. Rules of 2013 have been framed by the Central Government following
the power granted under Section 29 of the said Act of 2013.
27. The appeal against the recommendations of the ICC has been
provided under Section 18 of the Act of 2013 and Rule 11 of the Rules of
2013 in the following manner:
"Act. 18. Appeal.--(1) Any person aggrieved from
the recommendations made under sub-section (2)
of Section 13 or under clause (i) or clause (ii) of
sub-section (3) of Section 13 or sub-section (1) or
sub-section (2) of Section 14 or Section 17 or non-
implementation of such recommendations may
prefer an appeal to the court or tribunal in
accordance with the provisions of the service rules
applicable to the said person or where no such
service rules exist then, without prejudice to
provisions contained in any other law for the time
being in force, the person aggrieved may prefer an
appeal in such manner as may be prescribed.
(2) The appeal under sub-section (1) shall be
preferred within a period of ninety days of the
recommendations."
...
"Rule 11. Appeal.--Subject to the provisions of
Section 18, any person aggrieved from the
recommendations made under sub-section (2) of
Section 13 or under clauses (i) or clause (ii) of sub-
section (3) of Section 13 or sub-section (1) or sub-
section (2) of Section 14 or Section 17 or non-
implementation of such recommendation may
prefer an appeal to the appellate authority notified
under clause (a) of section 2 of the Industrial
Employment (Standing Orders) Act, 1946 (20 of
1946)."
28. It cannot be disputed that the service of the petitioner is guided as
per the provision of the West Bengal College Teachers (Security of Service)
Act, 1975 and no Appellate Tribunal has been constituted in terms of
Section 14 of the said Act of 1975.
29. The Government of West Bengal, however, in exercise of the power
conferred by Clause (a) of Section 2 of the Industrial Employments
(Standing Orders) Act, 1946, has appointed Additional Labour
Commissioner, Government of West Bengal to be the Appellate Authority of
the said Act.
30. The petitioner in W.P.A. No.2009 of 2023 was also communicated by
the State that said Additional Labour Commissioner is the Appellate
Authority under Section 18 of the said Act of 2013.
31. The UGC Regulations, 2015, on the other hand, is a delegated
legislation framed under Section 26 (1)(g) of the University Grants
Commission Act, 1956. Section 26 is quoted below:
"26. Power to make regulations.--(1) The
Commission may, by notification in the Official
Gazette, make regulations consistent with this Act
and the rules made thereunder,--
(a) regulating the meetings of the Commission and
the procedure for conducting business thereat;
(b) regulating the manner in which and the
purposes for which persons may be associated
with the Commission under Section 9;
(c) specifying the terms and conditions of service of
the employees appointed by the Commission;
(d) specifying the institutions or class of
institutions which may be recognised by the
Commission under clause (f) of Section 2;
(e) defining the qualifications that should
ordinarily be required of any person to be
appointed to the teaching staff of the University,
having regard to the branch of education in which
he is expected to give instruction;
(f) defining the minimum standards of instruction
for the grant of any degree by any University;
(g) regulating the maintenance of standards and
the co-ordination of work or facilities in
Universities.
(h) regulating the establishment of institutions
referred to in clause (ccc) of Section 12 and other
matters relating to such institutions;
(i) specifying the matters in respect of which fees
may be charged, and scales of fees in accordance
with which fees may be charged, by a college under
sub-section (2) of Section 12-A;
(j) specifying the manner in which an inquiry may
be conducted under sub-section (4) of Section 12-
A.
(2) No regulation shall be made under clause (a) or
clause (b) or clause (c) or clause (d) 17[or clause (h)
or clause (i) or clause (j)] of sub-section (1) except
with the previous approval of the Central
Government.
(3) The power to make regulations conferred by
this section [except clause (i) and clause (j) of sub-
section (1)] shall include the power to give
retrospective effect from a date not earlier than the
date of commencement of this Act, to the
regulations or any of them but no retrospective
effect shall be given to any regulation so as to
prejudicially affect the interests of any person to
whom such regulation may be applicable."
32. Regulation 8(5) of the UGC Regulations, 2015 is reproduced below:
"8. Process of conducting Inquiry: - (5) An appeal
against the findings or/recommendations of the
ICC may be filed by either party before the
Executive Authority of the HEI within a period of
thirty days from the date of the recommendations."
33. It is also necessary to quote Regulation 2(g) of the UGC Regulations,
2015 which defines the Executive Authority of the Higher Educational
Institutes as follows:
"2. Definitions. - (g) "Executive Authority" means
the chief executive authority of the HEI, by
whatever name called, in which the general
administration of the HEI is vested. For public
funded institutions the Executive Authority means
the Disciplinary Authority as indicated in Central
Civil Services (Classification, Control and Appeal)
Rules, 1965 or its equivalent rules;"
34. A plain reading of the aforesaid provisions makes it clear that as per
the UGC Regulations, 2015, the relevant College being a Higher
Educational Institution, the Executive Authority of the College is the
Governing Body, which is the Disciplinary Authority of the petitioner as
well.
35. It is, therefore, clear that in the instant case, while under the UGC
Regulations, 2015, the appellate authority against the recommendations of
the ICC is the Governing Body, under the Act of 2013, it is the authority as
notified under Clause (a) of Section 2 of the Industrial Employments
(Standing Orders) Act, 1946.
36. There cannot be any doubt that in case of any conflict, an Act of
Parliament shall prevail over a delegated legislation operating in the same
field.
37. In this regard, reliance may be placed upon the judgment reported at
(1985) 1 SCC 641 (Indian Express Newspapers (Bombay) Private Ltd. v.
Union of India). The relevant segment of the said judgment is quoted
below:
"75. A piece of subordinate legislation does not
carry the same degree of immunity which is
enjoyed by a statute passed by a competent
Legislature. Subordinate legislation may be
questioned on any of the grounds on which
plenary legislation is questioned. In addition it may
also be questioned on the ground that it does not
conform to the statute under which it is made. It
may further be questioned on the ground that it is
contrary to some other statute. That is because
subordinate legislation must yield to plenary
legislation.
..."
(emphasis supplied)
38. The same view has been taken in paragraph 34 of the judgment
reported at (2022) 7 SCC 323 (Indian Ex-servicemen Movement v. Union
of India).
39. It cannot be said that UGC Regulations, 2015 is special in nature
while Act of 2013 is a general Act when both trace their origin from
Vishaka's case (supra) with an aim to prevent, prohibit, and redress
sexual harassment in the workplace. It is important to note that the
definition of "workplace" under the Act of 2013 includes an "Educational
Institution."
40. It is necessary to take note of the powers and functions of the
University Grants Commission as outlined under Chapter III of the said Act
of 1956. It is also crucial to appreciate that the Commission's Rule-making
power as conferred under Section 26 (1) (g) of the University Grants
Commission Act, 1956, has to be read in the context of its powers and
functions.
41. Again, the aforesaid powers and functions of the University Grants
Commission are circumscribed by Entry-66 of List-I in the Seventh
Schedule of the Constitution of India and are limited to "Co-ordination and
determination of standards in institutions for higher education or research
and scientific technical institutions."
42. However, without examining the issue as to whether the University
Grants Commission lacked competence to enact UGC Regulations, 2015, it
can safely be said that if there is any conflict between the UGC Regulations,
2015, with the Act of 2013 along with its corresponding Regulations framed
by the Central Government, the latter shall prevail.
43. Therefore, the provisions of the Act of 2013 shall prevail over the
UGC Regulations, 2015. The same view has been taken by a learned Single
Judge of Punjab and Haryana High Court in CWP No.960 of 2019 (O&M)
[Dr. Tanya Mander v. Rajiv Gandhi National University of Law (Punjab)].
Therefore, the Appellate Authority, in the present case, is the Additional
Labour Commissioner as notified under Clause (a) of Section 2 of the
Industrial Employments (Standing Orders) Act, 1946.
44. I also accept the contention of the petitioner in W.P.A. No.2009 of
2023 that if the Disciplinary Authority assumes an appellate role over the
recommendation of the ICC and expresses its view, then the exercise of
power under Section 13(3) of the Act of 2013 will be a futile formality.
45. The judgments delivered in W.P. No.14093 (W) of 2018 (Dr.
Rajnarayan Roy v. State of West Bengal) and W.P.2991(W) of 2016 (Pradip
Mandal v. Union of India) did not consider the existence of Appellate
Authority under Section 18 of the Act of 2013 as appointed by the State.
46. In the facts of this case, it is not necessary for this Court to address
the other legal issues as addressed by the parties.
47. In view of the above discussions, the order dated January 19, 2023,
issued by the Appellate Authority under the Sexual Harassment of Women
at Workplace (Prevention, Prohibition and Redressal) Act, 2013 as well as
the order dated December 28, 2022, issued by the Additional Director of
Public Instructions, Chairperson of Enquiry Committee, ICC, are set aside.
48. The Additional Commissioner, Government of West Bengal, being the
Appellate Authority under the Act of 2013, shall decide the appeal preferred
by the petitioner in W.P.A. No.2009 of 2023 in accordance with law
preferably within a period of three months from the date of communication
of the order.
49. Accordingly, W.P.A. No.2009 of 2023 and W.P.A. No.1134 of 2023 are
disposed of.
50. Urgent certified website copy of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities.
(Kausik Chanda, J.)
