Delhi High Court
Atul Kumar Mittal vs Indian Institute Of Technology ... on 20 February, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 31.01.2019
Pronounced on: 20.02.2019
+ W.P.(C) 9777/2017 & CM APPLN. 4747/2019
ATUL KUMAR MITTAL ..... Petitioner
Through Mr.Pradeep Kant, Sr. Adv. with
Mr.Divyanshu Sahay, Adv.
versus
INDIAN INSTITUTE OF TECHNOLOGY DELHI
THROUGH ITS REGISTRAR AND ORS. ..... Respondents
Through Mr. Arjun Mitra, Advocate with
Mr.G.D. Bahuguna, Supdt, (Legal)
for R-1 & R-2.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
1. Vide the present petition, the petitioner has prayed as under:
(i) "Issue writ/order/direction in the nature of certiorari calling for the
records of the departmental appeal dated 15.03.2017 filed by the
Petitioner before the Visitor of the Indian Institute of Technology
Delhi under section 13(10) of the Statutes of the Institute and
quash the order of dismissal of the departmental appeal [as
communicated to the Petitioner vide Letter No. 100203/2017/IESI/
U-1, dated 25.10.2017 (Annexure P-2)] after summoning the same.
(ii) Issue writ /order/direction in the nature of certiorari calling for the
records and quashing the Order No. IITD/ IESI/U-1/2016/1576,
dated 29.06.2016 (Annexure P-1) passed by Respondent No.2.
(iii) Issue writ/order/direction in the nature of mandamus commanding
Respondents to allow the Petitioner continue in service and pay his
salary regularly and not to evict him from his allotted residence on
campus.
(iv) Direct the Respondent No.1 and 2 to compensate the Petitioner by
awarding special damages for the stigma damages for the stigma,
harassment and mental agony caused to him at their instance."
2. The brief facts of the case are that the petitioner was initially
appointed as an Assistant Professor by respondent no.2 in the Indian
Institute of Technology (hereinafter referred as „IIT‟), Delhi in the field of
water and sewage management on 30.07.1999 and thereafter was selected
and appointed as Professor by respondent no.2 on 13.04.2011. In his 17
years of service record at the Institute, he has successfully supervised about
18 Ph. D candidates and 49+ M.Tech candidates and has been privy to
various national and international projects including at Rashtrapati Bhawan.
He is aggrieved by malafide imposition of major penalty of compulsory
retirement by respondent no.2 in colourable, well-designed and pre-
determined exercise of power; all action having been conspiringly
undertaken on a false and unproved letter of a student Ms.T.P. (identity not
disclosed) dated 22.01.2012 whereby sought change of supervisor which has
been treated by the respondents as a complaint of sexual harassment against
the petitioner. Vide resolution dated 06.09.2014, the Board of Governors,
IIT, Delhi ordered dismissal of petitioner from service by relying upon the
inquiry report dated 11.08.2014 submitted by Hon‟ble Mrs. Justice Rekha
Sharma (Retd.).
3. Mr.Pradeep Kant, learned senior counsel for the petitioner submits
that the inquiry authority who submitted the report dated 11.08.2014 was not
competent to conduct inquiry into the present allegations of sexual
harassment including the specific prohibition ordained under Proviso to Rule
14(2) of the Central Civil Services (Classification, Control and Appeal)
Rules, 1965 read with Clause 13(9) of the Statute of the Institute and the
Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013.
4. Learned senior counsel further submits that earlier the petitioner filed
W.P.(C) 6059/2014 before this Court and the same was disposed of vide
order dated 15.09.2014 on the statement of IIT that a final decision on the
inquiry report has not been taken by the disciplinary authority (Board of
Governors); and the Board of Governors shall give full opportunity to the
petitioner to be heard on his representation including with respect to factual
matrix and then a speaking order will be passed. Consequently, the
petitioner was directed to appear before the Board of Governors on
03.11.2014 and the petitioner shall also file all material, on which he seeks
to rely, at least one week prior to the final decision taken. It is further
submitted that the petitioner came to know under the Right to Information
Act that as soon as the notice of above writ petition was given to the
Institute on 05.09.2014, the Institute hastily passed an order of dismissal
against the petitioner thereby removing him from service on 06.09.2014.
However, he made a false statement before this court on 15.09.2014 that
final decision was yet to be taken.
5. Accordingly, the petitioner preferred recall application vide CM
APPLN. 17178/2014 in W.P.(C) 6059/2014. On 30.10.2014, notice was
issued on the said application and this Court recorded that prima facie it
appears that a false statement was made before this Court. The aforesaid
application was disposed of vide order dated 30.04.2015 by setting aside the
order of dismissal dated 06.09.2014 and issued directions to the Board of
Governors (Disciplinary Authority) to ensure that the petitioner was given
full and fair opportunity to defend himself and lay his case before the
disciplinary authority who was obliged by virtue of the directions issued by
this court to consider and decide all contentions of the petitioner including
the contention relating to the jurisdiction and authority of inquiry authority
to inquire into allegations of sexual harassment in view of proviso to Rule
14(2) of the Central Civil Services (Classification, Control & Appeal) Rules,
1965 as also the Sexual Harassment Act 2013.
6. Learned senior counsel further submits that issue of competence and
jurisdiction of the inquiry authority whose report dated 11.08.2014 is the
basis of the punishment imposed upon the petitioner was also raised before
this court in CM APPLN. 17178/2014. However, the Court was of the view
that, that was not the "stage for the Court to intercede in the manner" since
the petition was being relegated to the Board of Governors for rendition of
his grievances. Feeling aggrieved, the petitioner had preferred an LPA
No.503/2015 which was dismissed vide order dated 19.01.2016 by recording
as under:
"This Court notices that in the first order disposing of the
writ petition or in the course of the application (made
later by way of recall), the learned Single Judge
consciously did not return any finding as to the legality of
the procedure adopted..... In any event, as noticed earlier,
the learned Single Judge has not recorded any findings as
to the correctness or the legality of the procedure
adopted. The Court was informed during the pendency of
the appeal that the Board of Governors had, in fact, by its
Minutes of Meeting dated 22.07.2015 finally decided to
accept the Enquiry Report and issued a show-cause notice
to the appellant requiring him to show-cause why he
ought not to be dismissed and thereafter, imposed penalty
of compulsory retirement after which no final order has
been made.
For the foregoing reasons, the Court is of the opinion that
appeal does not merit acceptance. It is accordingly
dismissed."
7. It is relevant to mention here that the impugned order of punishment
dated 29.06.2016 inflicting penalty of compulsory retirement was assailed
before this Court in W.P. (C) No. 11720/2016. But without entering into the
merit, this petition was disposed of vide order dated 16.12.2016 relegating
the petitioner to remedy of departmental appeal. Consequently, the petitioner
preferred appeal before the visitor which was rejected ex parte without any
exchange of pleadings or seeking petitioner‟s response to the comments
given by the Institute in response to the appeal by a non-speaking
communication dated 25.10.2017.
8. The present petition is filed pursuant to the liberty granted in W.P.(C)
No. 6059/2014 in the order dated 15.09.2014.
9. The submission of counsel for the petitioner is that the punishment
imposed on the basis of the inquiry report dated 11.08.2014 submitted by
Ms. Justice Rekha Sharma (Retd.) notified to be the inquiry authority on
23.01.2014 is void ab initio. As in view of the proviso to Rule 14 (2) of the
CCS (CCA) Rules, 1965 that she neither had any authority nor competence
to hold inquiry into allegations of sexual harassment. This bar relating to
choice in appointment of inquiry authority as contained in proviso to Rule
14 (2) of the CCS (CCA) Rules, 1965 continued even after the sexual
harassment Act, 2013 entered into force 09.12.2013 that also made the
constitution of the Internal Complaints Committee (hereinafter referred to as
„ICC‟) mandatory. Section 26 of the Sexual Harassment Act, 2013 provided
panel consequences on failure to constitute the Internal Complaints
Committee provided in Section 4.
10. Learned senior counsel further submitted that in the present case, the
two complaints allegedly of sexual harassment were made on 22.01.2013
and 30.01.2013 i.e. when admittedly, the Sexual Harassment Complaints
Committee (hereinafter referred to as „SHCC‟) constituted in accordance
with the directives of the Hon‟ble Supreme Court issued in Vishaka & Ors.
Vs. State of Rajasthan & Ors.: (1997) 6 SCC 241 was in existence in the
Institute. Thereafter, even when the appointment of Ms. Justice Rekha
Sharma (Retd.) was notified on 23.01.2014, the ICC already stood
constituted in the Institute on 17.01.2014 in terms of the Sexual Harassment
Act, 2013.
11. As per directions of Vishaka (supra), leave no matter of doubt that
until the Sexual Harassment Act, 2013 was enacted and was entered into
force on 09.12.2013, the directions issued in Vishaka (supra) were
mandatory and binding and were law within the meaning of Article 141 of
the Constitution. This position was reinforced by the three Judges‟ Bench in
Medha Kotwal Lele & Ors. Vs. Union of India & Ors.: (2013) 1 SCC 311.
In the said case, their Lordships categorically stated that not only that the
Complaints Committee would be the only competent authority to inquire
into the complaints of sexual harassment but its report shall be binding and
shall be deemed to be inquiry report for further action by the disciplinary
authority.
12. Thus, the proviso to Rule 14(2) of the CCS (CCA) Rules, 1965 being
clear and specific, i.e., taking away the discretion of the Disciplinary
Authority to appoint any other Inquiry Authority to inquire into allegations
of sexual harassment; the appointment of present Inquiry Authority by
notification dated 23.01.2014 was illegal and without jurisdiction.
13. It is further submitted that the petitioner had suffered heart attack and
was on sanctioned medical leave from 13.12.2013 to 26.02.2014 and when
he resumed duty on 26.02.2013 and learnt about the appointment of present
Inquiry Authority on 23.01.2014. Accordingly, the petitioner took an
objection by representation dated 26.02.2014 and thereafter also made
another representation dated 01.07.2014 to this effect to the Inquiry
Authority. But all this was of no avail.
14. Learned senior counsel further submitted that on the alleged
complaints so received by the Institute were sent for preliminary inquiry to a
Fact Finding Committee by the SHCC instead of making the preliminary
investigation itself. This is evident by the ex parte report of the Fact Finding
Committee which is at page 232 of the writ petition. This report, the
petitioner could only obtain under the Right to Information Act much after
the inquiry was over. This entire action of SHCC and the FFC was totally
without jurisdiction as preliminary inquiry/investigation and the regular
inquiry, if at all to be conducted, was to be undertaken by the SHCC itself or
by the ICC under the Sexual Harassment Act, 2013. The Institute had no
liberty to regulate its own procedure.
15. It is further submitted that the Fact Finding Committee Report did not
observe anywhere that the present was a case of sexual harassment but
collected the material supplied by Ms. T.P. and recorded her statement on
7th, 8th and 11th February, 2014 ex parte. Accordingly, the SHCC relying
upon the FFC Report resolved on 18.03.2013 to initiate regular inquiry
against the petitioner and also directed to serve a summary of complaints so
as to enable him to give a reply. The petitioner submitted his reply on
22.03.2013 and though asked for some time to give detailed reply but he
denied the contents of the complaint and also enclosed Ms. T.P.‟s email to
him inquiring petitioner‟s assistance for securing hostel accommodation and
also emails exchanged between the petitioner and Ms. P.J.(identity not
disclosed) between 06.10.2008 to 16.11.2011. On 25.03.2013, the petitioner
asked for personal hearing from the SHCC while enclosing his email to
Vijaya Singh objecting to her publication of research without permission
and also email of a student Poonam Ahluwalia and one Mamta Singh who
certified no gender bias at the hands of the petitioner. However, the SHCC
decided on 25.03.2013 to initiate regular inquiry and submit a chargesheet
after getting it approved from the disciplinary authority. Thus, entire action
of the SHCC and FFC was totally without jurisdiction as preliminary
inquiry/investigation and the regular inquiry, if at all, to be conducted, was
to be undertaken by the SHCC itself or by the ICC under the Sexual
Harassment Act, 2013.
16. Learned senior counsel further submitted that the Institute had no
liberty to regulate its own procedure and to appoint an Inquiry Authority of
its own choice as either the Vishaka (supra) directives were to be followed
or the provisions of the Sexual Harassment Act, 2013 were to be followed.
But there was no vacuum in between with respect to holding of disciplinary
inquiry with respect to the complaints of sexual harassment. The procedure
prescribed in the Service Rules is mandatory as is evident by the Steps for
Conducting Inquiry in Complaints of Sexual Harassment notified by the
DoPT, Government of India vide O.M. dated 16.07.2015. Hence, merely
because Section 28 of the Sexual Harassment Act, 2013 provides that the
Act is "in addition to and not in derogation of", it would not mean that a
choice is available to the Institute to appoint Inquiry Authority of its own. It
only means that the provisions of other laws shall co-exist along with the
Act and that where the special law, namely, the Sexual Harassment Act,
2013 is attracted/applicable, its provisions will apply with full force without
encroaching upon the other laws. This view was taken by the Hon‟ble
Supreme Court in KSL & Industries Ltd. Vs. Arihant Threads Ltd.: (2015)
1 SCC 166.
17. In Surat Singh (Dead) vs. Siri Bhagwan & Ors.: (2018) 4 SCC 562,
it is held that "when a statute requires a particular act to be done in a
particular manner then such act has to be done in that manner only and in
no other manner."
18. In case of Punita K Sondhi (Dr.) Vs. Union of India, (2010) 172
DLT 409, it is held that on the constitution of the Inquiry Authority,
proceedings vitiated if constitution of the Inquiry Authority is not acted
upon. No adverse inference can be drawn if the petitioner does not
participate before the Committee not properly constituted.
19. Learned counsel for the petitioner further submitted that in the present
case, the proviso to Rule 14(2) of the CCS (CCA) Rules 1965 statutorily
under a legal fiction appoints the Inquiry Authority said to have been
appointed by the Disciplinary Authority whereas in Rule 14(2) there is no
specific provision for appointment of Inquiry Authority to inquire into
allegations of sexual harassment. The proviso to Rule 14(2) is a substantive
enactment, to deal with specified cases of misconduct of sexual harassment.
It is a mandatory provision which cannot be bypassed.
20. It is further submitted that the chargesheet dated 26.04.2013 was
neither issued nor approved by the Disciplinary Authority (Board of
Governors). Hence, the entire exercise initiated consequent thereto is
vitiated including the impugned order of punishment. Despite specific
challenge being made by the petitioner in his statement of defence dated
07.05.2013 regarding non-approval of the chargesheet by the Board of
Governors and the same challenge also having been reiterated in the present
petition, however, no such approval has been brought on record by the
Institute. Even the minutes of the meeting of the Board of Governors dated
22.07.2015 does not show that the chargesheet was either framed, issued or
approved by the Board.
21. On the other hand, Mr.Arjun Mitra, learned counsel appearing on
behalf of the respondent nos.1 & 2 submits that in terms of the existing
policy on Sexual Harassment Act, 2013 dated 19.02.2001, there is no
tolerance towards any kind of sexual harassment, which is defined in the
broadest and most inclusive of terms. On receipt of complaint of Ms.T.P.,
the same was referred to Sexual Harassment Complaints Committee (SHCC)
and in consultation with the Director of the Institute, two lady faculty
members were deputed to interact with the complainant to find out the facts.
The FFC submitted a report to the SHCC on 13.02.2013 which deliberated
in its meeting held on 26.02.2013 and took a view that prima facie, a case of
sexual harassment was made out and an inquiry should be conducted. In this
meeting, it was decided to inquire into the matter on the basis of these two
complaints and serve a summary of the complaints to the petitioner.
22. The email dated 30.01.2013 sent by the former student Ms.P.J.
narrated the incident of 09.01.2004 which is stated as under:
"If I remember correctly during the start of my second
semester on 09th January 2004 at around 7 PM, I was in the
laboratory and Dr. Mittal asked me to accompany him to get
a few things from market near IIT Delhi. Initially I was a bit
hesitant but I thought that he is just like a father figure so I
agreed. He took me in his car to the market (near IIT Delhi)
and then he invited me for dinner in his house (he was then
the warden of Kumaon Hostel). Again I said no and gave an
excuse but he insisted and without stopping continued to
drive the car towards the Kumaon Hostel. When we reached
his residence, I was shocked to know that his wife was not at
home. I felt very uncomfortable and told him that I would
like to leave immediately. But again he insisted and told me
to have dinner as hostel food (at my hostel Himadri) would
be over by then (all this is happening inside his residence
with the door closed). Then he offered me wine (I was
shocked and terrified and I was on verge of crying still not
sure what to do as I felt cornered and trapped). I told him
that I don't drink and again asked him to drop me to hostel
(this was around 10 pm). After this, he pushed me down and
forced himself upon me. I resisted, cried and begged him to
stop..........................."
23. Accordingly, the decision was taken to conduct regular inquiry
against the petitioner. Accordingly, chargesheet dated 26.04.2013 was
served upon the petitioner, with the approval of the Chairman, Board of
Governors. The response of the petitioner to the said chargesheet was sent
to the office of the Director, in a sealed cover addressed to the Chairman of
the Board of Governors on 07.05.2013. After considering the reply of the
petitioner, it was directed that an inquiry committee of three lady faculty
members should be constituted. After conducting two meetings, the
aforesaid inquiry committee vide its note dated 13.12.2013 requested that
they may be permitted to withdraw from the inquiry proceedings, since they
felt that "........the procedures of the inquiry are so involved and complex
that they may not be competent to carry out the proceedings."
24. Accordingly, the retired judge of this Court named above was
appointed as an inquiry officer, with the approval of the Chairman, Board of
Governors, who conducted the proceedings de-novo. The inquiry officer
sent three notices by speed post to the petitioner, informing him of the
inquiry proceedings with the place and time for the same. The second and
third of such notices contained the record of proceedings conducted on the
previous date, while the third such notice, recording the proceedings of
04.03.2014 informed the petitioner that
i. The tracking reports indicated service of the previous
communications;
ii. In case of his non-appearance, the inquiry would continue in his
absence;
iii. The copy of the chargesheet was sent to the petitioner; and
iv. The petitioner was still at liberty to appear on the next date, i.e.
21.04.2014, if he chose to do so.
25. Since the petitioner deliberately chose not to appear on the said date
as well, the inquiry continued and concluded in his absence.
26. Learned counsel for the respondent submitted that the knowledge of
the petitioner of the inquiry proceedings being conducted is clearly borne
out from (i) his representation dated 26.02.2014 to the Director and (ii) his
representation dated 01.07.2014 to the Inquiry Officer. While the first
representation refers to the Inquiry Officer being a retired Judge, the second
is directly addressed to her. The Inquiry Officer conducted the proceedings
and submitted a report dated 11.08.2014, in which the charges against the
petitioner were held proved. The report itself is self explanatory whereby
stated that charges were held to be proved and the allegations being found to
be correct which constituted the misconduct of the petitioner. It is also
observed that the inquiry could only be conducted in terms of Sexual
Harassment Act. Significantly, the Inquiry Officer did not accept all
allegations at face value, simply on account of the absence of the Charged
Officer, but herself questioned the witnesses and went further to examine a
witness, not cited as a witness by the Institute. The report dated 11.08.2014
was forwarded to the petitioner on 14.08.2014 and thereafter, on receipt of
his response, the BOG decided to impose the penalty of dismissal from
service. This decision became the subject matter of litigation, which
eventually came to be decided by the order dated 30.04.2015 of this Court in
W.P.(C) 6059/2014, upheld by the Division Bench in LPA No. 503/2016
vide order dated 19.01.2016. In compliance with the said directions, a
personal hearing was afforded to the petitioner by the BOG, in a meeting
specially convened for the purpose; though there is no provision for giving a
hearing. A detailed and speaking order was passed in the meeting held on
22.07.2015, in terms of which the Inquiry Report was accepted and the
penalty of compulsory retirement was proposed. This decision has not been
challenged by the petitioner.
27. It is further submitted that a show cause notice was issued on the issue
of penalty and on receipt of the petitioner's response, the proposed penalty
was imposed by the BOG, in terms of its decision dated 04.04.2016.
However, the petitioner approached this Court by way of a writ petition
being W.P.(C) 11720/2016 after a gap of almost six months, which was
disposed of on 16.12.2016 as not pressed, with liberty granted to the
petitioner to file the statutory appeal before the Visitor. However, this Court
did not express any opinion on the merits of the matter. Accordingly, the
appeal was thus filed by the petitioner before the Visitor (i.e. the Hon'ble
President of India, in terms of Section 9(1) of the Institutes of Technology
Act, 1961) and the same was dismissed vide the order dated 12.10.2017. The
summary placed by the Additional Secretary (TE), contains a brief of the
entire case, along with the approval of the Hon'ble Minister of Human
Resource Development. Not only the procedure adopted by the Institute, but
the various orders passed by this Court and the decisions of the Institute
were considered and it was ultimately approved by the Visitor that the
penalty imposed by the Institute was just and an adequate.
28. It is submitted that there is a Sexual Harassment Complaints
Committee, (SHCC) constituted by the Institute in terms of the judgment of
the Hon'ble Supreme Court in the case of Vishakha (supra). The Institute
already had a policy on Sexual Harassment in place, updated on 19.02.2001,
and in terms of which the SHCC had been notified and the relevant
notification is of 20.02.2013. In terms of this notification, the SHCC
comprised of 11 members, including the members of NGOs, Institute
Security Officer, Head of Institute Hospital Services, lady members of the
faculty and members of the student body. The proceedings conducted by the
SHCC, including their decisions to have a regular inquiry and to serve a
charge sheet on the Petitioner have not been challenged. The charge sheet
dated 26.04.2013 was issued as per the procedure under CCS/CCA Rules
and the Institute Statutes. The petitioner participated in the inquiry
proceedings at that stage and did not raise any grievance as regard the
procedure, or the contention now being raised, that only the Internal
Complaints Committee could look into the issue (instead of an Inquiry
Officer).
29. Learned counsel for the respondent further submitted that at the time
of issuance of the charge sheet dated 26.04.2013, the provisions of the Act
had not come into force, since the Act itself became effective only on
09.12.2013. The inquiry proceedings thus commenced and continued as
mentioned above before the three member inquiry authority and later before
retired High Court Judge. During the relevant period, before the Act came
into force, there was no bar on a regular departmental inquiry being
conducted. The amended provisions of the CCS (CCA) Rules are enabling
provisions, which constitute a deeming fiction that the report of the SHCC
would be deemed to be the inquiry report. It is nowhere stipulated that only
the SHCC could conduct such an inquiry, or that the detailed inquiry not
conducted by the SHCC is vitiated. In the present case, the procedures laid
down were duly followed and there is no infirmity in the inquiry
proceedings.
30. It is further argued that insofar as the appointment of the inquiry
officer is concerned, the Institute decided to appoint a retired High Court
Judge to conduct the inquiry. The context of the above is the inability
expressed by the three member inquiry committee, who requested to be
allowed to withdraw since the procedures of the inquiry were so involved
and complex that they felt that they may not be competent to carry out the
procedures.
31. Further argued that the Board of Governors of the Institute is the
appointing authority and faculty members are, the disciplinary authority in
terms of Section 25 of the IIT Act. The members of the Board are not only
the employees of the Institute, but also include outside persons, being a
nominee of the Government and four persons with knowledge in the field of
education who are nominated by the IIT Council (defined in Section 31 of
the IIT Act). The functions of the Board are provided for in Section 13 of
the Act. As per Statute 2, the Board is to meet four times in the year and
thus, Statute 7(4) empowers and gives discretion to the Chairman of the
Board to exercise the powers of the Board in emergent cases and inform the
Board of the action taken by him for approval. In the present case, all the
documents, papers and relevant material, including the decision to institute a
regular inquiry against the petitioner, the Charge Sheet issued to him, the
appointment of the Inquiry Officer, forwarding of the Inquiry report to the
petitioner, consideration of the inquiry report etc., have been
considered/ratified/approved by the Board of Governors. This is evident
from its decision dated 22.07.2015, which is at page 507 of the petition,
taken at the meeting convened specially to consider the petitioner‟s case.
32. It is further submitted that the report of Inquiry Officer was submitted
after the petitioner had been given opportunities to appear and participate in
the inquiry. Even though the petitioner had been duly served with all the
notices and orders passed by the Inquiry Officer, he deliberately and
strategically chose to avoid participating in the inquiry. In this regard, the
Petitioner‟s letter dated 26.02.2014 is significant since his representation
clearly reveals that he was well aware of the appointment of High Court
Judge (retired) as an Inquiry Officer. In the said letter, the petitioner raises a
grievance to the Director in regard to the appointment of a retired Judge as
the inquiry officer. Moreover, the petitioner sent a communication on
01.07.2014 to the Inquiry Officer herself, which also indicates his
knowledge of the proceedings and his deliberate and strategic avoidance of
the same.
33. Learned counsel for the respondent further submitted that as per the
proceedings, a Court is not supposed to re-appreciate the evidence or act as
an Appellate Authority and moreover, any error in procedure must result in
manifest miscarriage of justice or violation of principles of natural justice. In
the present case, no prejudice has been caused to the petitioner on account of
any of the procedures followed by the Institute, which in any event, were in
accordance with the law and its own Act and Statutes.
34. To strengthen his arguments, learned counsel for the respondent has
relied upon the case of Bhagwan Chand Saxena vs. Export Inspection
Council of India: (2013) 138 DRJ 536 whereby it is held that once the
charged officer is rightly proceeded ex-parte, he is not entitled to challenge
the proceedings of the enquiry on the ground of unfairness and
incompleteness.
35. In case of Avinash Mishra vs. UOI: 2014 (215) DLT 714(DB), it is
held that if the proceedings having started before the commencement of the
Act, the same would not apply and the Complaints Committee has the
discretion not to follow.
36. In Saurabh Kumar Mallick vs. Comptroller and Auditor General of
India: 151 (2008) DLT 261 (DB) it is observed that when a government
servant is to be inflicted a penalty, due procedure in law has to be adopted
and the procedure in Rule 14 was to be followed.
37. In case of State Bank of India vs. Ramesh Dinkar Punde: (2006) 7
SCC 212 it is held that the Court is not supposed to re-appreciate the
evidence or act as an Appellate Authority and any error in procedure must
result in manifest miscarriage of justice or violation of principles of natural
justice.
38. While concluding his submissions, it is submitted that the petitioner
was given full opportunity in the Department of Proceedings. Thus, there is
no violation of the natural justice. Moreover, on considering the report of the
Inquiry Officer, the Disciplinary Authority and Appellate Authority have
already considered each and every aspect raised by the petitioner and passed
the order by taking lenient view against the petitioner. Thus, no interference
is required in the present petition and same deserves to be dismissed.
39. It is stated in para 11 of the affidavit that the chargesheet dated
26.04.2013 was served upon the petitioner and on receiving his response, the
Chairman, Board of Governors was of the view that a detailed inquiry
should be conducted and constituted an Inquiry Committee. In para 12 of
the said affidavit, it is stated that the chargesheet was issued as per the
procedure given under the CCS(CCA) Rules. The said paragraphs of the
affidavit if read in the light of the Minutes of Meeting of the BOG dated
22.07.2015, indicates that the chargesheet dated 26.04.2013 was neither
issued by the Board of Governors nor approved by them. Thus, the
proceedings stand vitiated in view of the judgment of the Hon‟ble Supreme
Court in the case of Union of India Vs. B.V. Gopinath, (2014) 1 SCC 351.
40. It is pertinent to mention here that the respondent on receipt of the
draft chargesheet dated 08.04.2013 sought approval of the Chairman on the
chargesheet and issued the same on 26.04.2013. The petitioner submitted
the statement of defence on 07.05.2013. After receipt of the same, the
Acting Director submitted a note on 19.06.2013 to the Chairman stating that
the BOG is the appointing authority but in emergent cases, the Chairman,
BOG may exercise the powers of the Board under Statute 7(4) and informed
the Board about the action taken by him. Therefore, Chairman, BOG was
requested to advice further action. In response thereto, the Chairman
decided to hold regular enquiry and constituted the Three Members
Committee. The said Committee was notified on 12.08.2013 and the first
meeting of the said Committee was held on 02.12.2013, that is, after four
months of its constitution.
41. It remains to be explained by the respondent that when a decision was
taken on 19.06.2013 to constitute a Committee for inquiry then what was the
urgency to exercise the emergency powers under Statute 7(4), more so,
when the Inquiry Authority of Three Members were notified on 12.08.2013
after two months. Likewise, the said Inquiry Authority held its first meeting
on 02.12.2013 after four months of its constitution. Besides, the present
Inquiry Authority was notified on 23.01.2014, that is, after about 40 days
from the last meeting of the Three Members Inquiry Authority. But even
then during this period of 40 days, the directives issued by the Three
Members Inquiry Committee were not complied with. Thus, it is established
that there was neither any emergency nor the emergency powers under
Statute 7(4) were available to be exercised in view of the judgment of
Prakash Kutik Choudhary Vs. Collector of Dhule, 1989 SCC Online Bom.
306.
42. It is not in dispute that statement of defence dated 07.05.2013
submitted by the petitioner in reply to the chargesheet was neither supplied
to the Inquiry Authority nor to the Disciplinary Authority. Despite the
above, office noting was maintained that statement of defence had not been
received till 08.06.2013. Moreover, even when the record was forwarded to
the First Three Member Inquiry Committee notified on 12.08.2013 for
inquiry, as also to the present inquiry authority on 23.01.2014 for inquiry,
the documents mentioned therein have been sent curiously did not contain
the statement of defence dated 07.05.2013 submitted by the petitioner. It is
to be clarified by the fact that the Inquiry Authority in her report dated
11.08.2014 herself records that no counter version has been presented before
her with the result that she had no option but to believe the truthfulness,
authenticity and credibility of the statement made before her. Thus,
principles of natural justice was grossly violated by not taking into
consideration the statement of defence dated 07.05.2013.
43. It is also not in dispute that the petitioner had asked for various
documents including the documents regarding salary/honorarium/
scholarship of Ms.T.P., the documents regarding allotment of hostel to her,
as also the letter of one student Pratibha Sangwan who had said that she was
being forced to depose against the petitioner. Besides, other relevant
documents were also asked, for particularly, the verification of alleged
SMSs.
44. It is pertinent to mention that the Three Member Enquiry Committee,
in the order dated 06.12.2013 of the Writ Petition No.11720/2016, was
directed that both the Complainants and the Charged Officer should submit
an authenticated and verified document through service provider on SMSs
exchanged through messages and viber in terms of its verbatim content with
full details and also both the complainant and the Charged Officer should
submit the details of the ownership of the mobile numbers from which
SMSs were generated and received.
45. In addition to above, the Three Member Committee also directed the
disciplinary authority to provide the documents mentioned in the order
which were approximately 18 in number. On being faced with the aforesaid
requirement of the verification of SMSs with the service provider, the
Institute instead of complying with the aforesaid directions got the inquiry
authority changed on a totally frivolous ground that the procedures were too
complex. Thereafter, the present inquiry authority came to be appointed.
Since, the petitioner was not provided with the documents, he submitted a
gentle reminder to the Director on 10.03.2014 which was replied on
19.04.2014 that he should raise this issue before the new inquiry authority.
This objection was also raised by the petitioner before the inquiry authority
by his representation dated 01.07.2014. But the inquiry authority in her ex
parte report dated 11.08.2014 held that the petitioner might have had a
grievance against the inquiry authority for not supplying him documents as
required by him but that inquiry authority has withdrawn from the inquiry
and therefore it was wholly irrelevant for the petitioner to harp on his
grievance with regard to that authority. The inquiry authority was also of
the view that this was de novo inquiry entrusted to her and if the petitioner
had appeared before her, he would have got ample opportunity to air his
grievance. The Board of Governors has accepted the above view of the
inquiry authority. However, the Inquiry Authority as well as the Board of
Governors failed to take into account the fact that the earlier Inquiry
Authority had issued directions to the Disciplinary Authority to provide the
documents which the Disciplinary Authority did not comply. Therefore,
merely by change of Inquiry Authority this legal obligation cannot be said to
be whittled. the Board of Governors failed to consider and appreciate that
the Inquiry Report does not prove the articles of charge and the statement of
imputations mentioned in the chargesheet. Instead by a sweeping statement,
the Inquiry Authority indicates the petitioner guilty of Section 2(n) of the
Sexual Harassment Act, 2013 which was not the charge. The Inquiry
Authority has added a new charge against one Ms. Vijaya Singh and in that
perspective sweepingly held that the petitioner was a serial offender even
though there was no complaint of Vijaya Singh and in any case, no such
charge was framed in the chargesheet. In fact, the Board of Governors being
conscious of the fact that the statement of Vijaya Singh could not have been
recorded by the Inquiry Authority as she was not a listed witness and
resultantly dropped her witness from consideration in its Resolution
076.09.2014 but erroneously again relied upon in the same inquiry report in
the Resolution dated 22.07.2015, that stood vitiated.
46. In case of Anant R Kulkarni Vs. Y.P. Educational Society, (2013) 6
SCC 515. The Supreme Court held that fair action on the part of the
authority concerned is a paramount necessity and that inquiry is not to be
held only with a view to establish the charges against the person or to
impose penalty but is also conducted with the object for recording the truth
of the matter. In the present case, the Inquiry Authority has brushed aside
all objections raised by the petitioner and has not even relied upon or
considered the material/documents available on record as placed with reply
dated 22.03.2013, 25.03.2013 and 02.04.2013 before the SHCC. Even if the
petitioner could not appear before the Inquiry Authority for any valid reason
or otherwise; still it was obligatory upon the Inquiry Authority to see that the
charges stand proved on the basis of the admissible evidence tendered by the
Institute in view of the observations of the Hon‟ble Supreme Court in case
of State of U.P. vs. Saroj Kumar Sinha: (2010) 2 SCC 772.
47. On perusal of the inquiry report dated 11.08.2014 makes it apparent
that the inquiry authority has acted both as a prosecutor and a Judge as the
entire report does not mention any single submission of the presenting
officer. Moreover, the Board of Governors have also confirmed the inquiry
report without appreciating the objections raised by the petitioner.
48. Regarding the charge of Ms. P.J., narrates an incident of January,
2004 of which according to her statement there is no evidence. She passed
out from IIT in the year 2008 and completed her Ph.D. under supervision of
the petitioner even after the alleged January 2004 incident. Not only this,
she was in regular correspondence with the petitioner thereafter from
06.10.2008 to 16.11.2011 till she was reprimanded for plagiarism by the
petitioner. Such conduct of maintaining such cordial relation with the
petitioner even after such a gruesome incident alleged is wholly
unbelievable. This only shows that email dated 30.01.2013 is pre-meditated
and designed to lend colour of sexual harassment to the complaint of Ms.
T.P. That apart, this alleged complaint is highly belated, in as much, written
with delay of about more than 9 years and hence not maintainable in view of
Section 9 of the Sexual Harassment Act, 2013 that prescribes limitation
period of three months with further extension of three months from the last
known incident.
49. It is pertinent to mention here that in the case of Vishaka (supra)
decided on 13.08.1997 it was clarified that the guidelines and norms would
be strictly observed in all work places for the preservation and enforcement
of the right to gender equality of the working women. The directions would
be binding and enforceable in law until suitable legislation is enacted to
occupy the field. Admittedly, the alleged incidents are after the decision of
Vishaka (supra) and before the Sexual Harassment Act, 2013 came into
force. Thus, the case of the petitioner would have been strictly considered
under the Vishaka (supra) guidelines instead of binding the inquiry officer
to deal with the allegations against the petitioner out of which the petitioner
failed to get the fair opportunity and place his case before the inquiry
authority.
50. In view of above discussion and settled position of law, I hereby set
aside order dated 29.06.2016 and 25.10.2017. Consequently, the
respondents are directed to re-instate the petitioner in service with all
consequential benefits within four weeks from the receipt of this order.
Thereafter, the respondents are at liberty to conduct inquiry afresh strictly as
per the guidelines of the Hon‟ble Supreme Court in Vishaka (supra).
51. The petition is, accordingly, allowed.
CM APPLN. 4747/2019
52. In view of the order passed in the present writ petition, this
application has been rendered infructuous and is accordingly, disposed of.
(SURESH KUMAR KAIT)
JUDGE
FEBRUARY 20, 2019/ab/rd
