Md. Azimur Rahman vs The University Of Jamia Millia And ...
2013 Latest Caselaw 3946 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+           W.P.(C) No. 7592/2012 and C.M. No.19270/2012 (for
            directions)

%                                                 5th September, 2013

MD. AZIMUR RAHMAN                                      ..... Petitioner
                Through:             Mr. Manoj Swarup, Advocate with
                                     Ms. Latika Kohli, Advocate.

                         Versus



THE UNIVERSITY OF JAMIA MILLIA AND ORS.       ..... Respondents

Through: Ms. Jaya Goyal, Advocate with Ms. Manpreet Kaur, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes

VALMIKI J. MEHTA, J (ORAL)

1. The petitioner by means of this writ petition impugns the order

dated 9.11.2012 passed by the respondent No.1/University, namely Jamia

Millia Islamia. By the impugned order, petitioner has been visited with the

penalty of removal from services. The penalty was imposed as the Enquiry

Committee found the petitioner guilty of harassment of Ms. Kulsum Fatima,

Assistant Professor.

2. To the Enquiry Committee of the respondent No.1/University,

complaint dated 23.11.2011 was made by Ms. Kulsum Fatima and which

was followed up with other detailed complaints including one dated

7.12.2011. Alongwith the complaint dated 7.12.2011, SMSs and emails

which were sent by the petitioner to Ms. Kulsum Fatima were attached.

Since the email is very long I am not reproducing the same, however, the

SMSs are reproduced as under:-

"From: Azeem Sir Time: 21 August, 2011 9:3 Kulsum, beautiful Reema, Mom & Dad ko meri taraf se EID bahut bahut Mubarak ho.

From: Azeem Sir Time: 03 September 2011 22:31 If i asked something u didn't like i am really very sorry for that

From: Azeem Sir Time: 03 September 2011 22:38 Ek sufi buzurg ne mere bare kaha hai ki mera dil sheshe ki tarah saaf haiaur main sach main aisa hi hoon.

From: Azeem Sir Time: 11 September 2011 12:04 What u 2 angels r doing at home u must be cooking. Plz arrange something 4 me.

From: Azeem Sir Time: 11 September 2011 12:18 Either u call me or add me on skype. I'm getting bore typing on mobile.

From: Azeem Sir Time: 12 September 2011 17:43

I called u angel yesterday and i saw an angel today u were looking very beautiful today why?

From: Azeem Sir Time: 17 September 2011 11:52 Deptt. kab tak pahoonchogi8? Kulfi

From: Azeem Sir Time: 23 September 2011 22:34 Thank u for the dinner tum bahut pyari ho KULFI.

From: Azeem Sir Time: 28 September 2011 17: 15 Saqib sir ke cabin main hoon. thodi der ke liye aa sakti ho kya?

From: Azeem Sir Time: 28 September 2011 17: 26 Aa rahi ho kya? I'm waiting.

From: Azeem Sir Akele akele kya kha rahi ho kulfi."

3. Before the Enquiry Committee, both the petitioner and Ms.

Kulsum Fatima made statements. The statement of petitioner made before

the Enquiry Officer reads as under:-

"Statement of Mr. Azeem Rehman, Dec 23, 2011, 4.00 pm, Chamber of the Media Coordinator, JMI. Ms. Kulsum Fatima and I know each other since a last few months as we have been working on common projects (Spanish centre) and the international conference on Islamia Arts and Architecture. We had mutual friendly relations and I admit sending these SMSs to her. I have also received some SMSs from her but I have not saved any so I cannot show them to the committee. My health situation is such that one of my kidneys has been donated to me by my sister. I also suffer from sugar and diabetes.

I would like to explain the sms about the dinner party, I admit hitting her with my foot, because she said; aap case hain" to me.

She later complained to me about it but the complaint was that why I did such a thing in front of our colleague Mariam. As regards my calling her "Kulfi" in the smss it was because it was difficult to call such a big name as Kulsum Fatima. I do not know why she has given a complaint on these things as she never objected to all this. It is only after she made the complaint that she shouted at me to not follow her, or visit her cabin or talk to her. As far as the opening of the bag is concerned, I opened it because she said she was carrying a lot of money. I felt afterwards that I should not have opened her bag. After this incident also she smsed me as I am a student of one of her courses as well and she asked me to inform the students of some announcement. I even volunteered my brother's services to her in order to help her. It was a only a friendly relationship.

With regard to the SMS: "If I said anything you did not like, I am very sorry about that" I want to say that once she told me that I talk non-relevant suffer to her, so I responded with the above message. I would like to narrate an incident regarding a file of the graphics brochure of the fine Arts Dept. she did not give me the file despite my asking for it three times. Then Saquib Sir got the file from Kulsum. She said I had deleted the file. Why should I have deleted a file that I had created? After 2-3 days someone called me in the corridor, Mariam said, "it is your partner" Kulsum said, "Don't call him partner, he will not like it."

4. In view of the above statement of the petitioner, the Enquiry

Committee concluded that the petitioner had admitted the charges against

him and therefore was guilty. Enquiry report was given accordingly.

Thereafter a show cause notice dated 1.10.2012 was issued against the

petitioner whereby it was proposed to impose the penalty of removal from

services upon the petitioner. Petitioner represented against this in terms of

representation dated 22.10.2012 and thereafter the impugned order dated

9.11.2012 was passed.

5. Before me, counsel for the petitioner has argued that there was

no complaint of sexual harassment against the petitioner and therefore the

impugned order stating that the petitioner is guilty of sexual harassment is

bound to be set aside on this ground alone. It is also argued that the

petitioner has been found guilty by the Enquiry Committee only of mental

agony and harassment to the complainant Ms. Kulsum Fatima and therefore

it cannot be said that petitioner is guilty of charge of sexual harassment. It is

also contended that admissions which have been made by the petitioner

cannot be treated as admissions with respect to sexual harassment.

6. In my opinion, there is no restricted definition or specific

limited of meaning the expression "sexual harassment". Harassment of a

lady by using a particular language or certain gestures or by stating a

particular fact, without even specifically calling these actions as sexual

harassment, yet the same can still be sexual harassment. I have already

reproduced the SMSs which were sent by the petitioner above and which

show that petitioner called the complainant Ms. Kulsum Fatima as "kulfi".

The SMSs also show that petitioner smsed Ms. Kulsum Fatima and said that

she was looking like an angel yesterday and today very beautiful. Another

SMS sent with regard to complaint states "tum bahut pyari ho KULFI". One

SMS dated 28.9.2011 states "Saqib sir ke cabin main hoon. thodi der ke liye

aa sakti ho kya?". The SMS dated 2.10.2011 states "Akele akele kya kha

rahi ho kulfi". In addition to the above SMSs petitioner was also

complained against for his gestures which the complaint said were difficult

to put down in writing.

7. Therefore, I find it a futile exercise by the petitioner to contend

that he is not guilty of sexual harassment. Merely because the Enquiry

Committee holds the petitioner guilty of mental agony to the complainant

cannot mean that actually there is no sexual harassment. In any case, the

issue is not whether the harassment should be categorized under the

expression "sexual harassment" but whether the petitioner is guilty of the

acts complained. Merely because the term "sexual harassment" is used in

the impugned order cannot mean that petitioner is not guilty of the acts

which have been complained of. I also do not agree with the contention

raised on behalf of the petitioner that petitioner has not admitted his guilt as

"sexual harassment" inasmuch as his statement is reproduced above because

there is no denial whatsoever of the contents of the complaint which was

made against him.

8. I therefore do not find that the enquiry report or the impugned

order dated 9.11.2012 is in any manner perverse. The scope of a Court

hearing petition under Article 226 of the Constitution of India which

challenges the report of an Enquiry Officer is very clear. The Court

interferes only if findings are against the principles of natural justice or are

perverse. I do not find violation of principles of natural justice or perversity

in the enquiry report or the impugned order.

9. In view of the above, there is no merit in the petition which is

accordingly dismissed, leaving the parties to bear their own costs.

SEPTEMBER 05, 2013                              VALMIKI J. MEHTA, J.
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