Dr. Nisha Toteja vs Union Of India And 7 Ors
2025 Latest Caselaw 865 Gua

Gauhati High Court

Dr. Nisha Toteja vs Union Of India And 7 Ors on 5 June, 2025

Author: Sanjay Kumar Medhi

Bench: Sanjay Kumar Medhi

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GAHC010085672024




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                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/2316/2024

         DR. NISHA TOTEJA
         WIFE OF DR. S.ROHIT, FLAT NO. 203, TYPE 4 QUARTER, AIIMS, GUWAHATI,
         CHANGSARI, KAMRUP, ASSAM- 781101



         VERSUS

         UNION OF INDIA AND 7 ORS
         REPRESENTED BY SECRETARY TO MINISTRY OF HEALTH AND FAMILY
         WELFARE, ROOM NO. 348, A WING, NIRMAN BHAVAN, NEW DELHI- 110011

         2:THE ALL-INDIA INSTITUTE OF MEDICAL SCIENCES
          REPRESENTED BY ITS DIRECTOR
          GUWAHATI
          CHANGSARI
         ASSAM
          PIN- 781101

         3:THE PRESIDENT
         ALL INDIA INSTITUTE OF MEDICAL SCIENCES
          GUWAHATI
          CHANGSARI
         ASSAM
          PIN- 781101

         4:THE INTERNAL COMPLAINTS COMMITTEE
         AIIMS GUWAHATI
          REPRESENTED BY ITS CHAIRPERSON
          GUWAHATI
          CHANGSARI
         ASSAM
          PIN- 781101
                                                                      Page No.# 2/10

            5:DR. ASHOK PURANIK
            THE EXECUTIVE DIRECTOR
            ALL INDIA INSTITUTE OF MEDICAL SCIENCES
             GUWAHATI
             CHANGSARI
            ASSAM
             PIN- 781101

            6:DR. JAYA SHANKAR KAUSHIK
             HOUSE NO. 002
            TYPE 4 FACULTY QUARTERS
            AIIMS
             GUWAHATI
             CHANGSARI
             KAMRUP
            ASSAM- 781101

            7:THE CHAIRPERSON
             INTERNAL GRIEVANCE REDRESSAL COMMITTEE
            ALL INDIA INSTITUTE OF MEDICAL SCIENCES
             GUWAHATI
             CHANGSARI
            ASSAM
             PIN- 781101

            8:THE GOVERNING BODY
            ALL INDIA INSTITUTE OF MEDICAL SCIENCES
             GUWAHATI
             CHANGSARI
            ASSAM
             PIN- 78110


                                          BEFORE

                 Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI

                                    JUDGMENT & ORDER


Advocates for the petitioner :   Shri K.N. Choudhury, Sr. Advocate
                                 Shri S.P. Sharma
Advocates for respondents :      Shri H. Gupta, learned C.G.C. for
                                 R. Nos. 1, 2, 3, 4, 7 and 8
                                 Shri D.S. Bhattacharya, for R- 5
                                 Shri R.B. Phookan for R -6.
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Date of hearing              :     05.06.2025


Date of judgment              :    05.06.2025


1.    Considering the subject matter in question and as agreed to by the
learned counsel for the parties, this writ petition is taken up for disposal at the
admission stage itself.

2.   The facts involved may be stated briefly in a nutshell.

3.   The petitioner, who is working as an Assistant Professor in the Department
of Paediatrics at All India Institute of Medical Sciences (AIIMS), Guwahati had
filed a written complaint on 17.08.2023 of sexual harassment at work place
against the respondent no. 6. It is the case of the petitioner that even after
such complaint, the harassment had continued and on the contrary, the
respondent no. 5 had issued a warning letter to the petitioner.

4.    Be that as it may, the matter was enquired by an Internal Complaint
Committee (hereinafter ICC) wherein the respondent no. 6 was indicted.
However, vide the impugned communication dated 04.04.2024 issued by the
Administrative Officer which is with the approval of the Competent Authority, the
findings have not been accepted. It is the legality and validity of such decision
which is the subject matter of this writ petition.

5.    I have heard Shri K.N. Choudhury, learned Senior Counsel for the
petitioner assisted by Shri S.P. Sharma, learned counsel. I have also heard Shri
H. Gupta, learned C.G.C. appearing for the official respondents, namely,
respondent nos. 1, 2, 3, 4, 7 and 8 including the AIIMS. I have also heard Shri
D.S. Bhattacharya, learned counsel for the respondent no. 5 as well as Shri R.B.
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Phookan, learned counsel for the respondent no. 6. The contesting respondents
have also filed affidavits-in-opposition and the petitioner had responded to the
same by filing rejoinder affidavits.

6.    The principal grounds of challenge, as elaborated by Shri Choudhury, the
learned Senior Counsel, is violation of the statute holding the field and has
raised the issue of jurisdiction. He has referred to the AIIMS Regulations of
2019, more specifically Schedule II thereof wherein the appointing authority and
the Competent Authority to impose penalty have been provided. He has
submitted that so far as the post in question is concerned, the appointing
authority is the Governing Body and the authority competent to impose penalty
is both the Governing Body and the President. He has drawn the attention of
this Court to Section 10 of the AIIMS Act, 1956, which defines Governing Body.
Under Section 10 (1), it has been provided that there would be a separate
Governing Body for every Institute. Reference has also been made to Regulation
5 of the aforesaid Regulation regarding constitution of the Governing Body.

7.    He has also referred to Regulation 2 (g) which defines President which
means to be the President of the Institute nominated by the Central
Government under Section 7 (1) of the Act. As per Section 7(1) of the Act, there
is a provision that there would be a President for every Institute who shall be
nominated by the Central Government from among the members other than the
Director of the Institute. Since the aforesaid provisions of law would form an
important part in the present lis, the same are extracted herein below:

Regulation 2 (g) of the Regulations reads as follows:

      " 'President' means the President of the Institute nominated by the Central

      Government under sub-section (1) of Section 7 of the Act."
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Section 7(1) of the Act reads as follows:

     "There shall be a President of the Institute who shall be nominated by the

     Central Government from among the members other than the Director of
     the Institute."

8.    The learned Senior Counsel has submitted that the reference to the
approval of the Competent Authority made in the impugned order dated
04.04.2024 is the Executive Director of AIIMS and this aspect has not been
disputed. He has submitted that the provisions holding the field, more
specifically Section 7 (1) of the Act clearly provides that the President can be
any person from amongst the Members who can be nominated but cannot be
the Director of the Institute and in the instant case the respondent no. 5 is the
Executive Director and therefore is barred under the aforesaid provision to be
nominated as the President.

9.   Shri Choudhury, the learned Senior Counsel has also submitted that in the
developments which had taken place after lodging of the complaint on
17.08.2023 followed by 18.10.2023, the conduct of the respondent no. 5
towards the petitioner has been found to be manifestly biased and in fact
warning letters were also issued to her on 22.11.2023 which was the subject
matter of consideration by this Court on 03.05.2024, 11.12.2024 in I.A. (Civil)
3800/2024 and 14.02.2025 in I.A. (Civil) No. 414/2025. He has again referred to
the Schedule II of the Regulations as mentioned above and has submitted that
the authority competent to impose penalty can be either the Governing Body or
the President. He accordingly submits that while the impugned communication
dated 04.04.2024 may be interfered with and the matter be remanded back to
be decided by the appropriate authority strictly in accordance with law, if such
decision is taken by the Governing Body, respondent no. 5 should be a part of
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the same.

10.   Shri H. Gupta, learned C.G.C., on the other hand has submitted that the
constitution of the ICC was itself not properly done and therefore, the report
cannot be acted upon. On the aspect that the disciplinary authority should be
either the Governing Body or the President, the learned C.G.C. has however not
joined any issues advanced by the learned Senior Counsel for the petitioner who
had contended that the Director / Executive Director is not the person which has
been provided by the rules to act in such capacity.

11.    Shri Bhattacharya, the learned counsel for the respondent no. 5 has
submitted that all actions taken were bona fide and the allegations made
against him of being biased are stoutly refuted. He has reiterated that he has
acted in his official capacity in a fair manner so that the Act of 2013 in question
is not misused.

12.   Shri Phookan, the learned counsel for the respondent no. 6 has endorsed
the submission of Shri Gupta, the learned counsel by contending that the
constitution of the ICC and the report submitted have not been done in
accordance with law and he was not given proper opportunity to defend himself.

13.   The rival submissions have been duly considered and the materials placed
before this Court including the statute holding the field have been carefully
perused.

14.   At the outset, this Court makes it clear that the present adjudication is
only on the jurisdictional aspect concerning issuance of the impugned order
dated 04.04.2024 and not on the merits of the allegations and counter
allegations.

15.   A perusal of the impugned communication dated 04.04.2024 would reveal
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that the report of the ICC has been rejected and there is no dispute to the fact
that such communication has been said to be issued with the approval of the
"Competent Authority", who in this case is none but the Executive Director, i.e.,
the respondent no. 5.

16.   The exposition of the provisions of the Act and the Regulations holding
the field which has been done above, would make it clear that Section 7 (1)
stipulates that the President can be nominated by the Central Government from
among the Members other than the Director of the Institute. When there is a
specific bar in the statute itself, that a Director of the Institute cannot be the
President, the impugned communication clearly appears to have been done
without jurisdiction. In this connection, the Schedule II of the Regulations of
2019 is to be referred as per which, the authority competent to impose penalty,
so far as the post in question is concerned has been stated to be either the
Governing Body or the President. If the President had taken the call in
accordance with law, the matter would have been different. However, the same
has been done by the Director who could not have taken the place of President
in view of the clear bar imposed by Section 7 (1) of the Act. The other option is
that the Governing Body can be the authority competent to impose penalty. As
per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 after the report is given by the ICC, it is for the Competent
Authority under the rules to take a call on the aspect of the penalty.

17.   At this stage, this Court has also taken into consideration, the concern
expressed by the petitioner both in the present petition as well as the two
connected IAs including IA (Civil) No. 414/2025.

18.   This Court on 03.05.2024 had made an observation that no coercive
action be taken against the petitioner. A similar protection was granted by this
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Court on 11.12.2024 passed in I.A. (Civil) No. 3800/2024 and on 14.02.2025 in
I.A.(Civil) 414/2025 in which this Court has recorded that the facts involved was
suggestive of malicious action. For ready reference, the relevant observations
mentioned above are extracted herein below:

     Order dated 03.05.2024 in WP(C)/2316/2024
            Heard Mr. S. P. Sharma, learned counsel for the petitioner.
            ...

It is further provided that pending further orders as may be passed in the matter, on the instructions as now required to be received by Mr. Gupta, learned CGC is placed on record; it is directed that the petitioner, herein, shall be permitted to continue in her services in the Department of Trauma & Emergency and no coercive action shall be taken against the petitioner, till the returnable date.

..."

Order dated 11.12.2024 in I.A. (Civil) 3800/2024

"...

In the interim, considering the submission made by the learned Sr. counsel for the applicant and the order dated 03.05.2024 passed by this Court in W.P.(C) No. 2316/2024, it is directed that the respondent No. 5 & 7 shall not act on the complaint letter dated 22.05.2024 and 04.06.2024 till the next returnable date. It is also made clear that no coercive action shall be taken against the applicant till the next returnable date ..."

Order dated 14.02.2025 in I.A.(Civil) 414/2025 ...

8. Such action and conduct on the part of the Executive Director, All India Institute Medical Sciences, Guwahati, in the backdrop of the litigation and order passed by this court, in the considered of this court is suggestive of malicious action. Therefore, subject to further deliberation and the Page No.# 9/10

responds that may be made by the respondents in the IA, as an ad- interim measure, it is provided that the warning dated 03.02.2025 shall remain suspended till the next date fixed."

19. The learned counsel for the respondents have however categorically submitted that the warning letter dated 22.11.2023 had nothing to do with the present complaint and was an independent action.

20. Be that as it may, this Court is of the opinion that while the impugned communication dated 04.04.2024 is held to be unsustainable in the eyes of law as the same was issued by an authority without jurisdiction, the matter is to be remanded to the appropriate authority to take a call. However, in view of the developments and also taking into consideration, the observations made by this Court in the orders dated 03.05.2024, 11.12.2024 and 14.02.2025, it is provided that if the Governing Body assumes the role of the Disciplinary Authority, the respondent no. 5 should not be made a part of the same and his place be taken by any other officer of equivalent rank. The said directions have been made by invoking the doctrine of necessity so as to ensure the process is held in a fair and transparent manner which is the hallmark of Rule of Law.

21. It is however made clear that the present interference and remand has been made on the reasons mentioned above and without expressing any opinion on the inter se merits of the parties.

22. The competent authority is accordingly directed to complete the proceedings expeditiously and within an outer limit of 2 (two) months from today. It is further provided that while the Competent Authority would consider the matter, the stakeholders, namely, the petitioner and the respondent no. 6 be given adequate opportunity to represent themselves. At this stage, Shri Gupta, Page No.# 10/10

the learned C.GC. has submitted that OM dated 04.11.2022 is presently followed. It is needless to state that all action be taken strictly in accordance with law including the OM placed on record.

23. It is also provided that till a final decision is taken, the interim order passed by this Court on 03.05.2024, 11.12.2024 and 14.02.2025 shall remain operative.

24. Writ petition stands allowed in the manner indicated above.

25. Cost made easy.

JUDGE

Comparing Assistant