Delhi High Court
Ashok Kumar Singh vs University Of Delhi And Ors. on 16 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 7371/2016
% 16th February, 2017
ASHOK KUMAR SINGH ..... Petitioner
Through: Mr. Amit Gupta and Mr. Anant
A. Pavgi and Ms. Mansi
Kukreja, Advocates.
versus
UNIVERSITY OF DELHI AND ORS. ..... Respondents
Through: Mr. M.J.S. Rupal and Ms.
Simran Jeet, Advocates for R-
1/University of Delhi.
Mr. Rajiv B. Samaiyar,
Advocate for R-2.
Ms. Vibha Mahajan Seth,
Advocate for R-3 to 5.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition under Article 226 of the Constitution
of India the petitioner impugns the reports dated 30.6.2015 &
12.2.2016 submitted by the Internal Complaints Committee („ICC‟) of
the respondent no. 2/Dayal Singh Evening College. The ICC was
constituted under the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred
to as „the Act‟), on account of complaints against the petitioner of the
respondent nos. 3 to 5 in this writ petition.
2. On behalf of the petitioner these reports are challenged on
two counts. First count is that the report only gives a prima facie
conclusion of the complaints having substance without the report
actually giving a definite conclusion and holding the charges against
the petitioner to be proved, and which aspects are very much required
under Section 13(3) of the Act. The second count is that the two
reports dated 30.6.2015 as regards the complaints of respondent nos. 4
and 5, in such inquiry proceedings, the petitioner was not allowed to
lead evidence in support of his defence. Also, it is argued that in none
of the three inquiry committee proceedings, which resulted in the two
reports dated 30.6.2015 and the third report dated 12.2.2016, the
petitioner was given an opportunity to cross-examine the witnesses.
Accordingly, for all such reasons it is argued that the Inquiry Reports
are bad being violative of principles of natural justice, and thus have to
be set aside.
3. On behalf of the respondent nos. 3 to 5 the contentions
urged of the petitioner as regards denial of opportunity to the petitioner
to lead evidence or denying opportunity to cross-examine witness, is
emphatically disputed and denied.
4. In order to appreciate the first contention urged on behalf
of the petitioner reference will have to be made to Section 2(n), Section
11, Section 13 and Section 18 of the Act and which Sections read as
under:-
"Section 2(n). "sexual harassment" includes any one or more of the
following unwelcome acts or behaviour (whether directly or by
implication) namely:-
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual
nature;
Section 11. Inquiry into complaint.-(1) Subject to the provisions of
section 10, the Internal Committee or the Local Committee, as the case may
be, shall, where the respondent is an employee, proceed to make inquiry
into the complaint in accordance with the provisions of the service rules
applicable to the respondent and where no such rules exist, in such manner
as may be prescribed or in case of a domestic worker, the Local Committee
shall, if prima facie case exist, forward the complaint to the police, within a
period of seven days for registering the case under section 509 of the Indian
Penal Code (45 of 1860), and any other relevant provisions of the said
Code where applicable:
Provided that where the aggrieved woman informs the Internal
Committee or the Local Committee, as the case may be, that any term or
condition of the settlement arrived at under sub-section (2) of section 10
has not been complied with by the respondent, the Internal Committee or
the Local Committee shall proceed to make an inquiry into the complaint
or, as the case may be, forward the complaint to the police:
Provided further that where both the parties arc employees, the
parties shall, during the course of inquiry, be given an opportunity of being
heard and a copy of the findings shall he made available to both the parties
enabling them to make representation against the findings before the
Committee.
(2) Notwithstanding anything contained in section 509 of the Indian Penal
Code (45 of 1860), the court may, when the respondent is convicted of the
offence, order payment of such sums as it may consider appropriate, to the
aggrieved woman by the respondent, having regard to the provisions of
section 15.
(3) For the purpose of making an inquiry under sub-section(1), the Internal
Committee or the Local Committee, as the case may be, shall have the
same powers as are vested in a civil court under the Code of Civil
Procedure, 1908 (5 of 1908) when trying a suit in respect of the following
matters, namely:--
(a) summoning and enforcing the attendance of any person and
examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.
(4) The inquiry under sub-section (1) shall be completed within a period of
ninety days.
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 the District Officer, as
the case may be---
(i) to take action for sexual harassment as a misconduct in
accordance 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.
Section 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 subsection (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 he prescribed.
(2)The appeal under sub-section (1) shall be preferred within a period of
ninety days of the recommendations."
5. A reading of the aforesaid Sections show that whenever
there is a complaint of sexual harassment under the Act an inquiry is
conducted under Section 11 of the Act. This inquiry is of either an
ICC or of the District Officer as provided under the Act. In the present
case, it is not in dispute that we are dealing with an ICC which has
been constituted by the respondent no. 2/Dayal Singh Evening
College/employer.
6. After a report is prepared under Section 11 of the Act, and
for which purpose the ICC is empowered under sub-section (3) of
Section 11 to enforce the attendance of any person for deposition etc,
this Inquiry Report containing the findings is submitted to the
employer under Section 13(1) of the Act. Under sub-section (3) of
Section 13, the report is then put up in accordance with the service
rules before the employer to take action for sexual harassment as a
misconduct in accordance with the service rules i.e on the ICC arriving
at a conclusion that the charges against the alleged guilty persons are
proved, then, the employer takes action on the basis of the conclusions
and findings of the ICC which gives the Inquiry Report under Section
11 of the Act. Really therefore the Inquiry Report of the ICC under
Section 13(3) will be submitted to the disciplinary authority of the
employer, and which disciplinary authority will take appropriate action
under service rules, after following principles of natural justice, for
deciding as to whether any punishment has to be imposed on the guilty
person, and if so what punishment. The decision of the disciplinary
authority under Section 13(3) of the Act is subject to appeal under
Section 18 of the Act as provided under sub-section (1) of Section 18.
Of course, it is seen that under sub-section(1) of Section 18 the
expression „recommendations‟ is found but that expression is used with
action which is to be taken under Section 13(3)(i) and (ii) and therefore
these „recommendations‟ are actually nothing but the order of the
disciplinary authority which decides to impose punishment on the
guilty person.
7. At this stage to decide the validity of the challenge to the
three reports submitted by the ICC, it will be relevant to refer to
operative portions of the two reports dated 30.6.2015 and one dated
12.2.2016, and which reports have been submitted on account of
complaints of respondent nos.3 to 5. The relevant portions of the three
reports read as under:-
"1. Report dated 30.6.2015
D. Concluding Observations and Recommendations of the
Committee
After deliberating on the above aspects the committee is of the considered
opinion that prima facie, the complaint Dr. Brati Biswas has some
substance. An appropriate action, if any, may be taken.
Dayal Singh College is an educational institution where students, teachers
and other staff come from different social, cultural and academic
backgrounds and work together. The objective is not only to provide
meaningful and relevant learning experience but also an amicable
environment full of trust, safety and security to all the concerned parties be
it students, teachers or office staff.
sd/- sd/-
Dr. Poonam Gupta Shri C.S. Pant
Presiding Officer Member
sd/- sd/-
Ms. Manju Mrs. Nargis Raj Kumar
Member Member"
2. Report dated 30.6.2015
D. Concluding Observations and Recommendations of the
Committee:
After deliberating on the above aspects the committee is of the considered
opinion that prima facie the complaint of Mrs. Madhuri Chawla has
some substance. An appropriate action, if any, may be taken.
Dayal Singh College is an educational institution where students, teachers
and other staff come from different social, cultural and academic
backgrounds and work together. Therefore, the objective is not only to
provide meaningful and relevant learning experience but also an amicable
environment full of trust, safety and security to all the concerned parties be
it students, teachers or office staff.
sd/- sd/-
Dr. Poonam Gupta Shri C.S. Pant
Presiding Officer Member
sd/- sd/-
Ms. Manju Mrs. Nargis Raj Kumar
Member Member"
3. Report dated 12.2.2016
C. Concluding Observations and Recommendations of the
Committee:
Irrespective of the time it takes to come forward the allegations of Dr.
Sumita Puri remain serious, the consequences for the college reputation are
potential damaging. It is unfortunate that the work environment has
worsened in the college and has become hostile which majority of the
witnesses have supported. There is an absence of mutual trust and harmony
among teachers. Therefore after due deliberations and careful discussion,
the committee is of the considered opinion that the complaint of Dr. Sumita
Puri has some merit and appropriate action (if any) may be taken by college
authorities.
The Honorable Supreme Court in the case of Vishakha Judgment has
already held that each incident of sexual harassment of women at work
place results in violation of the fundamental rights of Gender Equality and
the Right to Life and Liberty. Gender Equality included protection from
sexual harassment and right to work with dignity.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act 2013 also states that every employer shall provide a
safe working environment at the work place which shall include safety
from the persons coming into contact at the work-place. Keeping in view
the safety and security at work place, the committee also recommends the
following:
a) CCTV cameras should be installed at all public places including staff
room, seminar room, library and classrooms.
b) „Code of Conduct‟ should be strictly implemented in the college.
c) As the college runs into evening hours, proper lighting arrangements
should be made at all places including grounds, corridors, parking,
pathways and so on.
d) Counseling sessions/orientation programmes/workshops/seminars
should be organized on regular basis for staff and students for
harmonizing the relationship‟s and improving security and safety
standards in the college.
Note:
a) 12 Statements of witnesses of Dr. Sumita Puri are enclosed as
Annexure 13
b) 12 Statements of witnesses of Shri A.K. Singh are enclosed as
Annexure 14
sd/- sd/-
Dr. Poonam Gupta Shri C.S. Pant
Presiding Officer Member
sd/- sd/-
Ms. Manju Mrs. Nargis Raj Kumar
Member Member"
(underlining added)
8. A reading of the operative portions of the two reports
dated 30.6.2015 shows that ICC holds „prima facie‟ i.e the conclusions
which have been arrived at, are not final but only prima facie
conclusions. Also, there is no final conclusion of guilt being found of
the petitioner for his being indicted as such, inasmuch as, the
expression used is „has some substance‟ i.e there is no definitive and
final conclusion of guilt of the petitioner. In the report dated 12.2.2016
which has been submitted on account of the complaint filed by the
respondent no.3, it is seen that once again it is said that the complaint
of Dr. Sumita Puri „has some substance‟ i.e. once again there is no
definitive conclusion arrived at by the disciplinary authority. Section
13(1) of the Act uses the expression „findings‟ and thereafter sub-
section (3) of the Act uses the expressions „conclusion‟ and „has been
proved‟. Therefore, the findings of the ICC must also be along with a
definitive conclusion and by holding that the facts alleged in the
complaint have been proved against the guilty person, being the
petitioner in the present case. As against the requirement of the Inquiry
Report which has to be given in terms of Section 13 of the Act and its
sub-sections (1) and (3), the Inquiry Reports in the present case no
doubt contains the findings, but yet, no definitive conclusion is found
of guilt of the petitioner for his being indicted and nor it is found that
the ICC/inquiry authority holds that the facts as stated in the complaint
have been proved. Therefore, all the three reports; two dated 30.6.2015
and the third dated 12.2.2016, fall foul of the requirements of sub-
section (3) of Section 13 of the Act because there is no definitive
conclusion of petitioner being held guilty and also that there is no
finding that the charges against the petitioner have been proved. The
operative portions of the reports, therefore, being in violation of sub-
section (3) of Section 13 of the Act are liable to be set aside, and
accordingly, set aside. The issue then is that what follows.
9. It is seen in the present case that the ICC gave its three
reports; two dated 30.6.2015 and third dated 12.2.2016, after following
a particular procedure. Once, a procedure is followed, and only the
operative portion of the report falls foul of the requirements in terms of
sub-section (3) of Section 13 of the Act, in my opinion, though a fresh
report will have to be given by the ICC, but ICC is at complete liberty
to rely upon and arrive at the same conclusions in terms of reasoning
and discussion given in reports dated 30.6.2015 and 12.2.2016, if the
ICC so wants to do so. It also needs to be observed that the three
reports are detailed reports referring to the complaints, response of the
petitioner, details of the proceedings in the various hearings and
thereafter the findings of the ICC which are stated in paras 21 and 22
of the reports dated 30.6.2015 and 12.2.2016 with respect to
complaints of respondent nos. 3 to 5. Of course, I may hasten to add
that the reports have to be read as a whole because findings which are
given necessarily have co-relation to all other aspects and facts which
are stated in the earlier portions of the reports.
10. In view of the above discussion, since the two reports
dated 30.6.2015, given on account of complaints of respondent nos.4
and 5, and the report dated 12.2.2016 on account of complaint of
respondent no.3, being not in accordance so far as its operative
portions are concerned as required by Section 13(3) of the Act, the
same are accordingly set aside and liberty given to the ICC to prepare
and submit fresh reports, and for which purpose it is clarified that ICC
need not have any fresh proceedings conducted and ICC will proceed
ahead on the basis of the existing record of the ICC in the three
complaints of the respondent nos. 3 to 5.
11. I cannot agree with the second argument urged on behalf
of the petitioner that Inquiry Reports are to be faulted on account of
petitioner being not granted sufficient opportunities either for cross-
examination of witnesses or leading of evidence of the petitioner etc
etc., inasmuch as, assuming for the sake of arguments if arguments are
proved, but which arguments are emphatically denied by the
respondent nos.3 to 5, yet, assuming that there are valid grievances of
the petitioner, such grievances will have to be addressed, not to this
Court, but to the disciplinary authority to whom the Inquiry Reports
will be submitted under Section 13(3) of the Act, and which
disciplinary authority as per the service rules will necessarily hear the
petitioner before passing any order of punishment against the
petitioner, assuming that the Inquiry Reports which will now be given
would in its operative portions, after giving findings, indict the
petitioner on the complaints of the respondent nos.3 to 5. At this stage,
this Court cannot enter into the controversy of principles of natural
justice having not been complied with or not because this issue will
only arise if the disciplinary authority under Section 13(3) of the Act
accepts the reports of the ICC after considering the objections of the
petitioner. Also, as already noted above, the order of the disciplinary
authority which would be passed under Section 13(3) of the Act would
be subject to appeal under Section 18 of the Act.
12. In view of the long pendency of the subject proceedings,
and which neither helps the petitioner nor the respondent nos.3 to 5,
the respondent no.2/college is directed to ensure that proceedings
before the ICC, including the submitting of the reports are expedited,
and all such steps be taken so that there is no delay of giving of the
reports by the ICC. I may note that since I have set aside the two
reports dated 30.6.2015 and 12.2.2016, any consequential action which
may be taken by the respondent no.2/college on the basis of these
reports would also lapse.
13. Writ petition is accordingly disposed of in terms of
aforesaid observations with the direction to the ICC to give fresh
Inquiry Reports on the subject complaints of the respondent nos.3 to 5
of this writ petition. Parties are left to bear their own costs.
FEBRUARY 16, 2017 VALMIKI J. MEHTA, J
AK/Ne
