Gujarat High Court
National Forensic Science University vs Deepak Chetandas Rawtani on 1 May, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 410 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 17470 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NATIONAL FORENSIC SCIENCE UNIVERSITY & ANR.
Versus
DEEPAK CHETANDAS RAWTANI & ORS.
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Appearance:
MR DHAVAL DAVE, SENIOR ADVOCATE WITH MR UDIT N VYAS(9255) for
the Appellant(s) No. 1,2
for the Respondent(s) No. 2,3
MS PRIYA HINGORANI, SENIOR ADVOCATE WITH MR HIMANSHU
YADAV AND MR SS TRIVEDI(3514) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 01/05/2024
Page 1 of 45
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CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. This appeal, under Clause 15 of the Letters Patent,
has been filed by the National Forensic Science
University and its Vice-Chancellor with a prayer that the
order dated 20.02.2024 and the CAV judgement dated
22.03.2024 passed by the learned Single Judge in Special
Civil Application No. 17470 of 2023 be quashed and set
aside.
2. The respondent no. 1 filed the captioned petition
before the learned Single Judge praying that the order
dated 25.08.2023 passed by the Vice-Chancellor in an
appeal filed under Regulation 8(5) of the University
Grants Commission (Prevention, Prohibition and
Redressal of Sexual Harassment of Women Employees
and Students in Higher Educational Institutions)
Regulations, 2015 (for short 'Regulations, 2015') be
quashed and set aside.
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2.1 The original petitioner was appointed with the
University as an Associate Professor (Nanotechnology) in
the Institute of Research and Development under the
erstwhile Gujarat Forensic Science Laboratory. On the
enactment of the National Forensic Science University
Act, the appointment of the respondent - original
petitioner was deemed to be one under the National
Forensic Science University Act (for short 'NFSU Act'). A
complaint was received from the original respondent no.
3 in the appeal alleging sexual harassment based on
which the Internal Complaints Committee (ICC) of the
University took cognizance on 09.12.2022. The ICC
thereafter issued notice to the respondent-original
petitioner. The ICC conducted an inquiry and upon
conclusion of the inquiry proceedings submitted its report
on 12.04.2023 holding the respondent no. 1 guilty of
committing acts of sexual harassment under Regulation
8(3) of the Regulation, 2015.
2.2 The report was forwarded to the respondent no. 1.
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The respondent no. 1 within 30 days of the forwarding of
the report, filed an appeal under Regulation 8(5) of the
Regulation, 2015 on 10.05.2023. Based on the
submissions made by respondent no. 1, the Executive
Authority passed an order holding that the respondent no.
1 was not fit to occupy any teaching position and
therefore his services were terminated with immediate
effect by the order under challenge before the learned
Single Judge.
2.3 The learned Single Judge, by the judgment under
challenge, set aside the order as being unsustainable in
law, reserving the liberty on the Executive Authority to
take an appropriate decision upon the report of the ICC,
after considering the appeal in accordance with the
Regulations, 2015.
3. Mr. Dhaval Dave, learned Senior Advocate appears
with Mr. Udit Vyas, learned advocate for the appellant.
Taking us through the order passed by the learned Single
Judge on 20.02.2024 and the CAV judgement dated
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22.03.2024, Mr. Dave would submit that the learned
Single Judge committed an error in interpreting
Regulations 8 & 10 of the Regulations, 2015 inasmuch as
learned Single Judge opined that the order of punishment
was bad as, no show-cause notice to the offender was
issued. He would take us through the Regulations
especially Regulations 8(4), 8(5) and 8(6) to submit that if
the regulations are read, clause 4 of Regulation 8
indicated that the Executive Authority shall act on the
recommendations of the Committee within a period of 30
days from the receipt of the inquiry report unless an
appeal against the findings is filed within that time by the
either party. He would submit that an appeal had to be
filed against the findings or recommendations as set out
in clause 5 of Regulation 8. Reading Regulation 8(6), he
would submit that clause 6 had to be read in conjunction
with clause 4 of Regulation 8 inasmuch as in absence of
an appeal being filed as required under clause 4, the
Executive Authority would act on the recommendations
and if it decided to do so, then a show-cause notice had to
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be served on the party. In other words, he would submit
that it was only in cases where no appeal was filed would
the necessity of issuing a show-cause notice would arise.
He had further submitted that when the appeal was heard
in the case of the respondent herein an opportunity of
hearing itself was provided in the appeal and therefore a
show-cause notice was not so required.
3.1 Mr. Dave, learned Senior Advocate would submit
that initially when the matter was heard on 07.10.2023,
the learned Single Judge recorded the submission of the
respondent that the competent authority, to terminate the
services of the respondent no. 1 - original petitioner,
would be the Board of Governors whereas in the instant
case the order having been issued by the Vice-Chancellor
of the University would be without jurisdiction. Inter alia
after recording the appellant's submission contradicting
the arguments of the petitioner, the court issued notice.
The matter was then adjourned from time to time and
since some suggestion was made by the learned Single
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Judge to the University, to consider the possibility of
issuing show-cause notice and then pass a fresh order,
the learned Single Judge adjourned the hearing to
20.02.2024. The appellants filed an affidavit on
19.02.2024 in the Registry as they were unable to
subscribe to the proposition of a second notice. The
observations of the learned Single Judge in the order
dated 20.02.2024 to brand the conduct of the appellant as
reprehensible and a possible endeavour to cover lacunae
was unwarranted. The further direction of the learned
Single Judge to the Registry to remove the affidavit from
the record was unwarranted.
3.2 Mr. Dhaval Dave, learned Senior Advocate would
then take us through Regulation 8 together with
Regulation 10 and submit that once the appeal was heard
after giving an opportunity of hearing, under Regulation
10, what was required to be done by the University was
to impose a punishment in accordance with the service
rules. Clause 2 of Regulation 10 provided for imposing
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penalty on students, clause 1 of Regulation 10 therefore
envisages punishment in accordance with service rules.
He submitted that, that was only in context of the penalty
set out in the service rules i.e. the quantum and not
following of an independent procedure and of not
conducting an inquiry under the service rules. Therefore,
the learned Single Judge committed an error in relying
on Statute 30 of the first Statute of NFSU Act and holding
that a show-cause notice was necessary. He submitted
that Statute 30 was clearly inapplicable.
3.3 Mr. Dave would invite our attention to paragraph no.
10 of the CAV judgement which again castigated the
appellants including the conduct of the Senior Advocates
and would submit that such observations recorded in the
CAV judgment were uncalled for.
4. Ms. Priya Hingorani, learned Senior Advocate
appears with Mr. Himanshu Yadav and Mr. S.S. Trivedi,
learned advocate for the respondent. She would take us
through the provisions of the NFSU Act. Inviting our
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attention to Section 15 thereof, she would submit that a
Board of Governors is constituted thereunder of which
the Vice-Chancellor is the ex-officio member. Under the
first Statute of the University, particularly statute 9, the
only power that the Vice-Chancellor had was to suspend
an employee and initiate disciplinary proceedings against
him or her. As far as removal of the employees of the
University are concerned, Statute 30 of the First Statute
provided that the authority competent to remove a
teacher was the Board of Governors. Reading clause 2 of
Statute 30, she would submit that notwithstanding
anything contained in the terms of the contract, it was
only the Board of Governors which has the power to
remove a teacher as the expression used in the clause is
'shall have the power to remove'. Statute 30 further
provided that the removal had to be after providing a
reasonable opportunity of hearing which in the present
case was never done.
4.1 Ms. Hingorani would submit that the learned Senior
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Advocate appearing for the appellant would unnecessarily
confuse this court which was rightly taken off from the
record. Reading Regulation 8(4) would indicate that the
regulation only provides that the Executive Authority
should act on the recommendations within 30 days from
the receipt of the inquiry report. On an appeal being filed
under Regulation 8(5) of the Regulations, 2015, as per
Regulation 8(6) in case the appeal is heard and dismissed
and as a consequence thereof it is decided to act as per
the recommendations of the ICC, a show-cause notice
answerable within 10 days was required to be issued
before a penalty could be imposed. Reading Regulation
10, she would therefore submit that when the punishment
has to be imposed in accordance with the service rules, it
stipulates within itself following statute 30 which
embedded the concept the issuance of a show-cause
notice.
4.2 Ms. Hingorani would also rely on the provisions of
Section 13 of the Sexual Harassment of Women at
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Workplace (Prevention, Prohibition and Redressal) Act,
2013 ('the POSH Act' for short) and submit that even in
accordance with the said section, when an internal
committee comes to the conclusion that the allegation has
been proved a recommendation shall be made to the
employer to take action for sexual harassment as a
misconduct in accordance with the provisions of the
service rules applicable. In other words, in absence of
following the principles of natural justice in issuing a
show-cause notice, the argument that the UGC
regulations would prevail over the statutory provisions of
POSH Act is misconceived as admittedly the UGC
Regulations are a subordinate regulation.
4.3 In support of her submission, Ms. Hingorani would
rely on a decision of the Apex Court in the case of Dr.
Vijayakumaran C.P.V vs. Central University of
Kerala and Others [(2020) 12 SCC 426]. Relying on
paragraphs no. 1-4 and 11-14 of the judgment, she would
submit that the Hon'ble Apex Court had in the said case
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held that the report of the internal committee could not
have been made a ground of termination without a formal
regular inquiry as per service rules. She would also rely
on a decision in the case of V.C., Banaras University
and Others vs. Shrikant [(2006) 11 SCC 42]. Placing
reliance on paragraphs no. 14-38 & 46-56, she would
submit that the University is a creature of a statute and in
light of the statute of the University it was incumbent on
the University that an order of punishment could not have
been passed without an opportunity of hearing. She
would therefore submit that the appeal filed by the
University must be dismissed.
5. Having considered the submissions of the learned
Senior Advocates appearing for the respective parties, we
need to caution ourselves. Several submissions on
various intricacies of law and its interpretation as far as
POSH Act viz-a-viz Regulations, 2015 have been made
and also on the issue of jurisdiction of the Vice-Chancellor
to pass the order impugned in the petition. However, we,
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in the appeal on hand, are only and only considering the
legality and validity of the CAV judgement dated
22.03.2024 on the issues decided by the learned Single
Judge.
6. At the outset, we may also observe that the learned
Single Judge had recorded the submissions of the
respective counsels on whether the competent authority
to terminate the services of the petitioner would be the
Board of Governors or the Vice-Chancellor. The issues
that were considered and decided were the legality of the
order in appeal in context of Regulations 8 & 10 and
Statute 30 of the first Statute. We therefore will only
tread the path of examining that very issue.
7. The chronology of dates indicate that a complaint of
sexual harassment dated 09.12.2022 was lodged by the
respondent no. 4. The ICC took cognizance of the
complaint and issued notice and asked the respondent no.
1 and the original petitioner to submit his response on
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15.12.2022. On an apprehension and at the request of
the petitioner, 2 members of the ICC had recused from
the proceedings and the ICC was reconstituted for the
purposes of examining the complainant. The
proceedings, after production of evidences and
examination of witnesses concluded and the ICC by its
report dated 12.04.2023 held the petitioner guilty of
committing sexual harassment upon the victim. The
report was forwarded to the petitioner as per Regulation
8(3) of the Regulations, 2015. An appeal under
Regulation 8(5) was preferred by the petitioner-
respondent no. 1 herein on 10.05.2023. In furtherance of
the appeal, a notice dated 07.07.2023 was issued upon
the petitioner providing an opportunity of hearing and the
Executive Authority heard the petitioner on 11.07.2023.
The Order in Appeal accepting the findings of the ICC
acted on the recommendations of the ICC which read as
under:
"V. RECOMMENDATIONS
a. The Respondent should be, in view of the
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serious misconduct, be penalized with highest
penalty by the University.
b. The Complainant should be given a
reasonable compensation of Rs. 25,000/- for
the mental agony suffered by her on account
of sexual harassment. Such amount may be
recovered from the Respondent or may be
paid by the University as ex gratia."
7.1 Since the ICC recommended the highest penalty, the
Executive Authority acted on such recommendation and
terminated the services of the original petitioner -
respondent no. 1 herein. The learned Single Judge, on
interpretation of the Regulations 8 & 10 respectively and
Statute 30 found that the Executive Authority was under
an obligation to issue a show-cause notice to the offender
before any action is sought to be taken against the
offender only under the service rules. The reasonings of
the learned Single Judge minus the observations made in
paragraph no. 10 of the CAV judgement, read as under:
"8. A plain reading of Regulation (8) of the UGC
( PoSH) Regulations, 2015 would make it clear that
upon receipt of the report of the ICC, the Executive
Authority has to wait for a period of thirty days
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during which time, either party to the complaint is
at liberty to file an appeal and whereas upon
receipt of the appeal, the Executive Authority
would take an appropriate decision on the
recommendations.
8.1 Perusal of Regulation 8(6) also reveals that if
the Executive Authority decides to act as per the
recommendations, of the ICC, then a show cause
notice to be answerable within ten days would be
issued upon the party against whom the action is to
be taken and whereas the Executive Authority shall
proceed only after considering the reply or hearing
the aggrieved party.
8.2 Furthermore, Regulation 10(1) also clearly lays
down that the offender shall be punished in
accordance with the service rules of the institution
if offender is an employee.
8.3 Conjoint reading of the above provisions makes
it absolutely clear that the Executive Authority
while rejecting the appeal preferred by an offender,
could not have issued an order of punishment
simultaneously. At the first instance the Executive
Authority was under an obligation to issue a show
cause notice to the offender before any action is
sought to be taken against him. Furthermore even
if the Executive Authority is of the opinion that the
reply to the show cause notice is not satisfactory,
yet, in case the offender is an employee then the
action could be taken against the offender only
under the service rules. The regulations being
more than clear, no other interpretation could be
possible of the procedure to be followed in case the
ICC recommends an action against an offender who
is an employee of the institution.
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9. Furthermore as far as the present Institution is
concerned, the service rules i.e. as contained in the
first statute contemplate that a teacher is required
to be given a reasonable opportunity of showing
cause against the action proposed to be taken
against him. A further conjoint reading of the UGC
(PoSH) Regulations, 2015 with Statute 30 of the
first Statute would mean that after the ICC in
instant case gave recommendation for imposing
highest penalty upon the petitioner, yet, the
Executive Authority, was under an obligation to
wait till thirty days and since the appeal was filed
by the petitioner as per Regulation 8(5), the
Executive Authority if he was of the opinion that
the recommendations was required to be accepted
then he was required to issue show cause notice to
the petitioner and only after affording appropriate
opportunity, to the petitioner, the Executive
Authority decide to accept the recommendations.
9.1. At this stage it requires to be mentioned that
while the ICC is empowered to issue
recommendations against the offender, under the
scheme of the Act, if the offender is an employee,
the Executive Authority is empowered only to
direct punishment in accordance with the
regulations. While in case the offender is a student
then various punishments are envisaged in the
Regulations itself but as noted herienabove, the
regulations are absolutely clear about the powers
of Executive Authority in case the offender is an
employee.
9.2 The Executive Authority after issuance of show
cause notice upon petitioner being disinclined to
accept the appeal of the petitioner, while rejecting
the show cause notice, could only have
recommended taking of action against the
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petitioner as per the service Rules.
9.3 The action taken by the Executive Authority, in
the instant case of rejecting the appeal and
punishing the present petitioner by way of the very
order, does not appear to be in conformity with the
regulations rather the impugned action is in clear
breach of the UGC (PoSH) Regulations, 2015. Thus
the impugned order is required to be interfered
with."
7.2 The final directions issued by the learned Single
Judge read as under:
"11. In view of the discussions hereinabove,
excluding the immediate para, and for the
reasons and conclusions arrived at, the impugned
order dated 25.8.2023 being unsustainable in law
is hereby quashed and set aside.
12. The Executive Authority of the respondent
university is at liberty to take appropriate decision
upon the report of the ICC after considering the
appeal preferred by the present petitioner in
accordance with the UGC (PoSH) Regulations,
2015 as elaborated hereinabove. All consequential
benefits of quashing and setting aside of the
impugned order shall be made available to the
petitioner within a period of four weeks from the
date of receipt of this order.
13. It is further clarified that none of other
contentions raised by the parties have been
touched upon by this Court and whereas it would
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be open for the parties to raise the same at an
appropriate stage if the need so arises."
[Emphasis Supplied]
8. What therefore needs to be decided is that was a
show-cause notice mandatory on the action proposed by
Executive Authority, before termination of the petitioner's
services.
8.1 Since the learned Single Judge has reproduced
Regulations 8 & 10 and Statute 30, we reproduce para 7
of the CAV judgement which sets out the Regulations and
accordingly para 7 reads as under:
"7. In the considered opinion of this Court, since
provisions of Regulations 8 and 10 of the UGC
(PoSH) Regulation, 2015 being relevant for
appreciating the present purpose the same as
much are requisite are reproduced hereinbelow for
benefit:
8. Process of Conducting Inquiry- (1) The ICC
shall, upon receipt of the complaint, send one
copy of the complaint to the respondent
within a period of seven days of such receipt.
(2) Upon receipt of the copy of the complaint,
the respondent shall file his or her reply to
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the complaint along with the list of
documents, and names and addresses of
witnesses within a period of ten days.
(3) The inquiry has to be completed within a
period of ninety days from the receipt of the
complaint. The inquiry report, with
recommendations, if any, has to be submitted
within ten days from the completion of the
inquiry to the Executive Authority of the HEI.
Copy of the findings or recommendation shall
also be served on both parties to the
complaint.
(4) The Executive Authority of the HEI shall
act on the recommendations of the committee
within a period of thirty days from the receipt
of the inquiry report, unless an appeal against
the findings is filed within that time by either
party.
(5) An appeal against the findings or/
recommendations of the ICC may be filed by
either party below the Executive Authority of
the HEI within a period of thirty days from
the date of the recommendations.
(6) If the Executive Authority of the HEI
decides not to act as per the
recommendations of the ICC, then it shall
record written reasons for the same to be
conveyed to ICC and both the parties to the
proceedings. If on the other hand it is decided
to act as per the recommendations of the ICC,
then a show cause notice answerable within
ten days, shall be served on the party against
whom action is decided to be taken. The
Executive Authority of the HEI shall proceed
only after considering the reply or hearing the
aggrieved person.
10. Punishment and compensation-(1) Anyone
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found guilty of several harassment shall be
punished in accordance with the service rules
of the HEI, if the offender is an employee.
7.1 Furthermore, statute 30 of the first statute of
the NFSU, 2021 also being relevant for the present
purpose is reproduced hereinbelow for benefit:
"30. Removal of employees of the University.
(1) Where there is an allegation of misconduct
against a teacher, a member of the academic
staff or other employee of the University, the
Vice- Chancellor, in the case of the teacher or
member of the academic staff, and the
authority competent to appoint (hereinafter
referred to as the appointing authority) in the
case of other employee, may, by order, in
writing place such teacher, member of the
academic staff or other employee as the case
may be under suspension and shall forthwith
report to the Board of Governors the
circumstances in which the order was made;
Provided that the Board of Governors may, if
it is of the opinion that the circumstances of
the case do not warrant the suspension of the
teacher or a member of the academic staff
revoke such order.
(2) Notwithstanding anything contained in the
terms of the contract of appointment or of any
other terms and conditions of service of the
employees, the Board of Governors, in respect
of teacher and other academic staff and the
appointing authority in respect of other
employees shall have the power to remove a
teacher or a member of the academic staff or
as the case may be, other employee on
grounds of misconduct.
(3) Save as aforesaid, the Board of Governors,
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or as the case may be, the appointing
authority shall not be entitled to remove any
teacher, member of the academic staff or
other employee except for a good cause and
after three months notice or on payment of
three months' salary in lieu thereof.
(4) No teacher, member of the academic staff
or other employee shall be removed under
clause (2) or clause (3) unless he has been
given reasonable opportunity of showing
cause against the action proposed to be taken
against him/her.
(5) The removal of a teacher, member of the
academic staff or other employee shall take
effect from the date on which the order of
removal is made:
Provided that where the teacher, member of
the academic staff or other employee is under
suspension at the time of his removal, such
removal shall take effect from the date on
which he was placed under suspension.
(6) Notwithstanding anything contained in the
foregoing provisions of this Statute, a
teacher, member of the academic staff or
other employee may resign.
(a) If he is a permanent employee, only after
giving three months' notice in writing to the
Board of Governors or the appointing
authority, as the case may be, or or by paying
three months' salary in lieu thereof;
(b) If he is not a permanent employee, only
after giving one month's notice in writing to
the Board of Governors or, as the case may
be, the appointing authority or by paying one
month's salary in lieu thereof.
Provided that such resignation shall take
effect only on the date on which the
resignation is accepted by the Board or the
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appointing authority, as the case may be."
8.2 Though a valiant effort was made by the Senior
Advocate Mr. Dhaval Dave, based on the affidavit filed on
19.02.2024, which the learned Single Judge refused to
take on record and directed the Registry to remove the
same from the records, that Regulation 8(4) has to be
read with Regulation 8(6) and that a show-cause notice is
necessary only and only where no appeal is filed as the
petitioner had already been offered an opportunity of
hearing in the appeal, we are not impressed by such a
submission. Regulation 8 cannot be read in parts or in
compartments that we read Regulation 8(4) with 8(6) and
read Regulation 8(5) in isolation of each other. Regulation
8 has to be read as a whole. Regulation 8 provides for
the process of conducting inquiry. The procedural steps
indicate that on receipt of a complaint, a copy has to be
sent to the respondent. The respondent of the complaint
has then to file his or her response with list of documents
and names and addresses of witnesses. The inquiry then
has to be completed. The inquiry report with the
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recommendations of the committee which contains the
findings or recommendations is then served on both
parties to the complaint.
8.3 Now, in this backdrop if Regulations 8(4) to 8(6) are
read, it provides that unless an appeal is filed against the
findings within a period of 30 days from the receipt of the
inquiry report, the Executive Authority would have to act
on the recommendations. Here, as envisaged under
Regulation 8(5), the original petitioner after the inquiry
report was submitted on 12.04.2023, filed an appeal on
10.05.2023. The Executive Authority, therefore, had not
acted on the recommendations within the time otherwise
mandated in Regulation 8(4) of the Regulations 2015.
The appeal was filed on the findings as well as the
recommendations. The finding was that the original
petitioner was held guilty and therefore the
recommendation that the original petitioner be penalised
with the highest penalty by the University. Regulation
8(6) has to be read in conjunction with the preceding
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Regulation 8(5) and reading the three of them conjointly
i.e. Regulation 8(4); 8(5) and 8(6) would mean that in the
event of an appeal having been filed and if the Executive
Authority decides not to act as per the recommendations
of the ICC then it shall record reasons which have to be
conveyed to both the parties. On the other hand, it is
decided to act as per the recommendations of the ICC,
then a show-cause notice answerable within ten days has
to be served against whom action is decided to be taken.
8.4 Even if the facts of the case are considered, the
interpretation on the Regulations 8(4) and 8(6) as opined
by the learned Single Judge appears appropriate. The
ICC submitted its report on 12.04.2023. The
recommendation after finding the original petitioner
guilty was to impose the highest penalty. An appeal was
filed on 10.05.2023 within 30 days of the finding and
recommendation, assailing both. The Executive Authority
on 25.08.2023 acted on the recommendation and
terminated the services of the original petitioner. The
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learned Single Judge's finding that the Regulations 8(4)
to 8(6) conjointly being read, once it was decided to act
on the recommendations of the ICC by upholding its
findings in the appeal, the Executive Authority was before
executing or implementing the recommendation bound to
issue a show-cause notice answerable within ten days is
not erroneous.
8.5 The procedural aspect which is akin to a second
show-cause notice on the quantum of penalty envisaged
under Article 311(2) was not followed. Even Regulation
10 envisages imposing a punishment according to service
rules where Statute 30(4) would come into play which
provides that the original petitioner be given a reasonable
opportunity of showing cause against the action proposed
to be taken. The underlying spirit of Regulation 8(6) and
Statute 30(4) is common i.e. adherence to principles of
natural justice. The opportunity to show cause which is a
medium through which the mandate of compliance of
principles of natural justice was a sine qua non before
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passing of an order of termination.
9. The Hon'ble Supreme Court in the case of
Aureliano Fernandes vs. State of Goa and Others
reported in (2024) 1 SCC 632 has held that principles
of natural justice are an essential bedrock of Article 14 of
the Constitution of India.
"35. Principles of natural justice that are reflected
in Article 311, are not an empty incantation. They
form the very bedrock of Article 14 and any
violation of these principles tantamounts to a
violation of Article 14 of the Constitution. Denial of
the principles of natural justice to a public servant
can invalidate a decision taken on the ground that
it is hit by the vice of arbitrariness and would
result in depriving a public servant of equal
protection of law.
36. Article 14, often described as the Constitutional
Guardian of the principles of natural justice,
expressly forbids the State, as defined in Article 12,
from denying to any person, equality before the law
or equal protection of the laws. Article 14 provides
an express guarantee of equality before the law to
all persons and extends a protection to them
against discrimination by any law. Article 13(3)(a)
defines law to include any ordinance, order, bye-
law, rule, regulation, notification, custom or usages
having in the territory of India, the force of law.
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Thus, principles of natural justice guaranteed
under Article 14, prohibit a decision-making
adjudicatory authority from taking any arbitrary
action, be it substantive or procedural in nature.
These principles of natural justice, that are a
natural law, have evolved over a period of time and
been continuously refined through the process of
expansive judicial interpretation.
H. THE TWIN ANCHORS : NEMO JUDEX IN
CAUSA SUA AND AUDI ALTERAM PARTEM
37. The twin anchors on which the principles of
natural justice rest in the judicial process, whether
quasi-judicial or administrative in nature, are
Nemo Judex In Causa Sua, i.e., no person shall be a
judge in his own cause as justice should not only be
done, but should manifestly be seen to be done and
Audi Alteram Partem, i.e. a person affected by a
judicial, quasi-judicial or administrative action
must be afforded an opportunity of hearing before
any decision is taken.
38. How deeply have Courts internalised and
incorporated the principles of natural justice into
the Constitution can be perceived from the seven
Judge Bench decision in the case of Maneka
Gandhi v. Union of India and Another, (1978)
1 SCC 248 . In this case, where a challenge was
laid to the order of impounding the passport of the
appellant, which was silent on the reasons for such
an action and the respondent-State had declined to
furnish the reason therefor, it was held that life
and liberty of a person cannot be restricted by any
procedure that is established by law, but only by
procedure that is just, fair and reasonable.
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39. Quoting the audi alteram partem rule and
equating it with "fair play in action", Justice P.N.
Bhagwati (as he then was) had authored the
judgment for the majority and had observed that:
"14.......The audi alteram partem rule is not
cast in a rigid mould and judicial decisions
establish that it may suffer situational
modifications. The core of it must, however,
remain, namely, that the person affected must
have a reasonable opportunity of being heard
and the hearing must be a genuine hearing
and not an empty public relations exercise.
That is why Tucker, L.J., emphasised
in Russel v. Duke of Norfolk, 1949 1 ALL
ER 109 that "whatever standard of natural
justice is adopted, one essential is that the
person concerned should have a reasonable
opportunity of presenting his case". What
opportunity may be regarded as reasonable
would necessarily depend on the practical
necessities of the situation. It may be a
sophisticated full-fledged hearing or it may be
a hearing which is very brief and minimal : it
may be a hearing prior to the decision or it
may even be a post-decisional remedial
hearing. The audi alteram partem rule is
sufficiently flexible to permit modifications
and variations to suit the exigencies of myriad
kinds of situations which may arise..."
40. In the captioned case, citing the judgment of a
Constitution Bench of this Court in Rustom
Cavasjee Cooper v. Union of India, (1970) 1
SCC 248 , wherein it was held that fundamental
rights are not a water tight compartment, the
Court observed as under:-
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"The principle of reasonableness, which
legally as well as philosophically, is an
essential element of equality or non-
arbitrariness pervades Article 14 like a
brooding omnipresence and the procedure
contemplated by Article 21 must answer the
test of reasonableness in order to be in
conformity with Article 14"
The emphasis was on the Courts attempt to expand
the reach and ambit of the fundamental rights
guaranteed in the Constitution rather than
attenuate their meaning and content by a process
of judicial construction. Relying on the minority
judgment rendered by Justice Fazal Ali in the case
of A.K. Gopalan v. State of Madras, 1950 SCC
228 , this Court went on to hold in Maneka
Gandhis case (supra) that the procedure required
to be prescribed under Article 21 must include four
essentials namely, notice, opportunity to be heard,
impartial tribunal and ordinary course of
procedure. It was observed that even on principle,
having regard to the impact of Article 14 on Article
21, the concept of reasonableness must be
projected in the procedure contemplated by Article
21.
41. In Delhi Transport Corporation v. D.T.C.
Mazdoor Congress and Others, (1991) Supp
(1) SCC 600 , a five-Judge Bench of this Court
highlighted how essential it is to afford a
reasonable opportunity to an employee to put forth
his case in a domestic inquiry and the requirement
of an employer to comply with the principles of
natural justice and fair play, in the following
words :
"202........It is now well settled that the audi
alteram partem rule which in essence,
enforces the equality clause in Article 14 of
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the Constitution is applicable not only to
quasi-judicial orders but to administrative
orders affecting prejudicially the party-in-
question unless the application of the rule has
been expressly excluded by the Act or
Regulation or Rule which is not the case here.
Rules of natural justice do not supplant but
supplement the Rules and Regulations.
Moreover, the Rule of Law which permeates
our Constitution demands that it has to be
observed both substantially and
procedurally....Rule of law posits that the
power is to be exercised in a manner which is
just, fair and reasonable and not in an
unreasonable, capricious or arbitrary manner
leaving room for discrimination... [emphasis
added]
xxx xxx xxx
316. Thus it could be held that Article 14 read
with Article 16(1) accords right to an equality
or an equal treatment consistent with the
principles of natural justice. Any law made or
action taken by the employer, corporate
statutory or instrumentality under Article 12
must act fairly, justly and reasonably. Right to
fair treatment is an essential inbuilt of natural
justice. Exercise of unbridled and uncanalised
discretionary power impinges upon the right
of the citizen; vesting of discretion is no
wrong provided it is exercised purposively
judiciously and without prejudice. Wider the
discretion, the greater the chances of abuse.
Absolute discretion is destructive of freedom
than of man's other inventions. Absolute
discretion marks the beginning of the end of
the liberty. The conferment of absolute power
to dismiss a permanent employee is antithesis
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to justness or fair treatment. The exercise of
discretionary power wide off the mark would
breed arbitrary, unreasonable or unfair
actions and would not be consistent with
reason and justice. The provisions of a
statute, regulations or rules that empower an
employer or the management to dismiss,
remove or reduce in rank of an employee,
must be consistent with just, reasonable and
fair procedure. It would, further, be held that
right to public employment which includes
right to continued public employment till the
employee is superannuated as per rules or
compulsorily retired or duly terminated in
accordance with the procedure established by
law is an integral part of right to livelihood
which in turn is an integral facet of right to
life assured by Article 21 of the Constitution.
Any procedure prescribed to deprive such a
right to livelihood or continued employment
must be just, fair and reasonable procedure.
In other words an employee in a public
employment also must not be arbitrarily,
unjustly and unreasonably be deprived of his/
her livelihood which is ensured in continued
employment till it is terminated in accordance
with just, fair and reasonable procedure.
Otherwise any law or rule in violation thereof
is void." [emphasis added]
42. The significant role played by procedural
fairness in the backdrop of internalising the
principles of natural justice into the Constitution
cannot be overstated. This aspect has been
highlighted by a Division Bench of this Court of
which one of us, [Hima Kohli, J], was a member,
in Madhyamam Broadcasting Limited v. Union
of India & Others, (2023) SCC Online 366 .
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Speaking for the Bench, Chief Justice D. Y.
Chandrachud stated :
"53. The judgment of this Court in Maneka
Gandhi (supra) spearheaded two doctrinal
shifts on procedural fairness because of the
constitutionalising of natural justice. Firstly,
procedural fairness was no longer viewed
merely as a means to secure a just outcome
but a requirement that holds an inherent
value in itself. In view of this shift, the Courts
are now precluded from solely assessing
procedural infringements based on whether
the procedure would have prejudiced the
outcome of the case. Instead, the courts
would have to decide if the procedure that
was followed infringed upon the right to a fair
and reasonable procedure, independent of the
outcome. In compliance with this line of
thought, the courts have read the principles
of natural justice into an enactment to save it
from being declared unconstitutional on
procedural grounds. Secondly, natural justice
principles breathe reasonableness into the
procedure. Responding to the argument that
the principles of natural justice are not static
but are capable of being moulded to the
circumstances, it was held that the core of
natural justice guarantees a reasonable
procedure which is a constitutional
requirement entrenched in Articles 14, 19 and
21. The facet of audi alterum partem
encompasses the components of notice,
contents of the notice, reports of inquiry, and
materials that are available for perusal. While
situational modifications are permissible, the
rules of natural justice cannot be modified to
suit the needs of the situation to such an
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extent that the core of the principle is
abrogated because it is the core that infuses
procedural reasonableness. The burden is on
the applicant to prove that the procedure that
was followed (or not followed) by the
adjudicating authority, in effect, infringes
upon the core of the right to a fair and
reasonable hearing." - [emphasis supplied]
43. In A.K. Kraipak and Others v. Union of
India and Others, (1969) 2 SCC 262 quoting
with approval the judgment In re: H.K. (All
Infant) [36] , this Court held that :
"20. The aim of the rules of natural justice is
to secure justice or to put it negatively to
prevent miscarriage of justice. These rules
can operate only in areas not covered by any
law validly made. In other words they do not
supplant the law of the land but supplement
it. The concept of natural justice has
undergone a great deal of change in recent
years. In the past it was thought that it
included just two rules nameny: (1) no one
shall be a judge in his own case (Nemo debet
esse judex propria causa) and (2) no decision
shall be given against a party without
affording him a reasonable hearing (audi
alteram partem). Very soon thereafter a third
rule was envisaged and that is that quasi-
judicial enquiries must be held in good faith,
without bias and not arbitrarily or
unreasonably. But in the course of years many
more subsidiary rules came to be added to the
rules of natural justice. Till very recently it
was the opinion of the courts that unless the
authority concerned was required by the law
under which it functioned to act judicially
there was no room for the application of the
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rules of natural justice. The validity of that
limitation is now questioned. If the purpose of
the rules of natural justice is to prevent
miscarriage of justice one fails to see why
those rules should be made inapplicable to
administrative enquiries. Often times it is not
easy to draw the line that demarcates
administrative enquiries from quasi-judicial
enquiries. Enquiries which were considered
administrative at one time are now being
considered as quasi-judicial in character.
Arriving at a just decision is the aim of both
quasi- judicial enquiries as well as
administrative enquiries. An unjust decision in
an administrative inquiry may have more far
reaching effect than a decision in a quasi-
judicial inquiry...." - [Emphasis supplied]
I. FAIR ACTION AND IMPARTIALITY IN
SERVICE JURISPRUDENCE:
44. In the context of service law, it is, therefore
mandatory to afford a Government servant or an
employee, a reasonable opportunity of being heard
before an order is passed. In Mangilal v. State of
M.P., (2004) 2 SCC 447 , this Court declared that
even if a Statute is silent and there are no positive
words in the Act or the Rules made thereunder,
principles of natural justice must be observed. This
is what the Court has held:
"10....Where the statute is silent about the
observance of the principles of natural justice,
such statutory silence is taken to imply
compliance with the principles of natural
justice where substantial rights of parties are
considerably affected. The application of
natural justice becomes presumptive, unless
found excluded by express words of statute or
necessary intendment. (See Swadeshi Cotton
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Mills v. Union of India, (1981) 1 SCC 664 ) Its
aim is to secure justice or to prevent
miscarriage of justice. Principles of natural
justice do not supplant the law, but
supplement it. These rules operate only in
areas not covered by any law validly made.
They are a means to an end and not an end in
themselves."
45. In Tulsiram Patels case (supra), observing that
violation of the rules of natural justice would result
in arbitrariness which would amount to
discrimination, the Constitution Bench made the
following observations :
"95. The principles of natural justice have
thus come to be recognized as being a part of
the guarantee contained in Article 14 because
of the new and dynamic interpretation given
by this Court to the concept of equality which
is the subject-matter of that article. Shortly
put, the syllogism runs thus: violation of a
rule of natural justice results in arbitrariness
which is the same as discrimination; where
discrimination is the result of State action, it
is a violation of Article 14: therefore, a
violation of a principle of natural justice by a
State action is a violation of Article 14. Article
14, however, is not the sole repository of the
principles of natural justice. What it does is to
guarantee that any law or State action
violating them will be struck down. The
principles of natural justice, however, apply
not only to legislation and State action but
also where any tribunal, authority or body of
men, not coming within the definition of State
in Article 12, is charged with the duty of
deciding a matter. In such a case, the
principles of natural justice require that it
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must decide such matter fairly and
impartially.
96. The rule of natural justice with which we
are concerned in these appeals and writ
petitions, namely, the audi alteram partem
rule, in its fullest amplitude means that a
person against whom an order to his
prejudice may be passed should be informed
of the allegations and charges against him, be
given an opportunity of submitting his
explanation thereto, have the right to know
the evidence, both oral or documentary, by
which the matter is proposed to be decided
against him, and to inspect the documents
which are relied upon for the purpose of
being used against him, to have the witnesses
who are to give evidence against him
examined in his presence and have the right
to cross-examine them, and to lead his own
evidence, both oral and documentary, in his
defence. The process of a fair hearing need
not, however, conform to the judicial process
in a Court of law, because judicial
adjudication of causes involves a number of
technical rules of procedure and evidence
which are unnecessary and not required for
the purpose of a fair hearing within the
meaning of audi alteram partem rule in a
quasi-judicial or administrative inquiry. If we
look at clause (2) of Article 311 in the light of
what is stated above, it will be apparent that
that clause is merely an express statement of
the audi alteram partem rule which is
implicitly made part of the guarantee
contained in Article 14 as a result of the
interpretation placed upon that article by
recent decisions of this Court. Clause (2) of
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Article 311 requires that before a government
servant is dismissed, removed or reduced in
rank, an inquiry must be held in which he is
informed of the charges against him and
given a reasonable opportunity of being heard
in respect of those charges....." - [emphasis
supplied]
At the same time, a note of caution was added in
the captioned case and the Court observed that the
rules of natural justice are neither statutory rules
nor are they cast in stone. They are flexible and can
be adapted and modified by statutes, depending on
the exigencies of different situations, the facts and
circumstances of the case and the framework of the
law [37] .
[37] Also refer : A.K. Kraipak and others v.
Union of India and Others, (1969) 2 SCC
262 and Union of India v. Col. J.N. Sinha
and Another, (1970) 2 SCC 458
46. In Swadeshi Cotton Mills v. Union of India,
(1981) 1 SCC 664 , in his dissenting judgment,
Justice O. Chinnappa Reddy, had made the
following pertinent observations :-
"106. The principles of natural justice have
taken deep root in the judicial conscience of
our people, nurtured by Dr. Bina pani [38] ,
A.K. Kraipak [39] , Mohinder Singh Gill [40] ,
Maneka Gandhi [41] . They are now
considered so fundamental as to be "implicit
in the concept of ordered liberty and,
therefore, implicit in every decision-making
function, call it judicial, quasi-judicial or
administrative. Where authority functions
under a statute and the statute provides for
the observance of the principles of natural
justice in a particular manner, natural justice
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will have to be observed in that manner and in
no other. No wider right than that provided by
statute can be claimed nor can the right be
narrowed. Where the statute is silent about
the observance of the principles of natural
justice, such statutory silence is taken to
imply compliance with the principles of
natural justice. The implication of natural
justice being presumptive it may be excluded
by express words of statute or by necessary
intendment. Where the conflict is between the
public interest and the private interest, the
presumption must necessarily be weak and
may, therefore, be readily displaced." -
[emphasis supplied]
[38] AIR 1967 SC 1269
[39] (1969) 2 SCC 262
[40] (1978) 1 SCC 405
[41] (1978) 1 SCC 248
47. Thus, ordinarily, courts interpret statutory
provisions in sync with the aforesaid principles of
natural justice on a premise that no statutory
authority would violate the fundamental rights
enshrined in the Constitution. When it comes to
authorities that are expected to discharge judicial
and quasi-judicial functions, the rule of audi
alteram partem applies with equal force.
Reasonableness infuses lifeblood in procedural
matters, be it elements of the notice, the contents
of the notice, the scope of inquiry, the material
available or an adequate opportunity to rebut such
material. All of this is to avoid miscarriage of
justice at any stage. This is of course fluid and
subject to adapting to the demands of a situation in
the given facts of a case."
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10. As recorded in the order dated 07.10.2023 where
the question of jurisdiction was raised, however, since the
learned Single Judge has decided the legality only on the
issue of violation of principles of natural justice in context
of the Regulations 8 & 10 read with Statute 30(4) as
observed in paragraph no. 13 of the judgment holding
that "It is further clarified that none of other contentions
raised by the parties have been touched upon by this Court
and whereas it would be open for the parties to raise the
same at an appropriate stage if the need so arises.", we are
not going on the issue of competency or jurisdiction of the
Vice-Chancellor vs. the Board of Governors in passing of
the impugned order of termination.
11. That brings us to the issue of the observations of the
learned Single Judge branding the act of the appellant in
filing an affidavit as "completely reprehensible" in the
order dated 20.02.2024. Further directions to remove the
affidavit dated 19.02.2024 from the records was also a
part of the order dated 20.02.2024. When both these
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aspects are examined in light of the final CAV judgement
dated 22.03.2024, we observe that even in paragraph no.
10 of the judgement, the learned Single Judge observed
thus:
"10. At this stage this Court deems it appropriate
to flag a very serious issue. As noted by this Court,
while this petition had been heard substantially on
13.02.2024, and while this Court had been of the
prima facie opinion that the action taken by the
Vice Chancellor was in breach of UGC (PoSH)
Regulations 2015, a request had been made on
behalf of the respondent University requesting for
time to take instructions as to whether the
impugned order could be modified at the end of the
respondent University themselves. On 20.02.2024,
instead of coming out with any particular proposal
as per their request, an affidavit- in- reply had been
filed, whereby the lacuna in the procedure and in
the argument, had been attempted to be covered
up. In the considered opinion of this Court, the
conduct of the respondents was completely
reprehensible, more so when the respondent was
being represented through a Senior Advocate. It
requires to be mentioned that when requests are
made of the above nature, this Court usually grants
the same, so as to enable the authorities
themselves to correct their errors. While it was
always open for the learned Counsels to have
informed the Court that the respondents are not
inclined to take any corrective steps themselves yet
instead of taking the fair route, an affidavit- in-
reply to cover up lacunas as noted hereinabove had
been filed. While this Court would generally not shy
away from taking appropriate action against the
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parties concerned, yet since it appears that any
action recommended, would also include direction
to take action against the learned Senior Advocate
also therefore to ensure that the cordial relations
between the Bar and Bench which is required for
effective functioning of the Justice Delivery System,
this Court refrains itself from passing any orders of
such nature. Suffice it to state that playing smart
with the Court may not be very wise thing to do in
the long run and all concerned are required to
introspect about their conduct."
11.1 However, irrespective of the affidavit's removal, we
have also independently examined the contentions raised
before us on the aspect of the Regulations 8 & 10 and
Statute 30(4) and considered the affidavit dated
19.02.2024 placed along with the memo of appeal, since
it was otherwise directed to be removed from the records.
Having seen the affidavit in light of the contentions raised
before us and as were dealt with by the learned Single
Judge, we are afraid to say that we too would have not
come to a conclusion different than the one arrived at by
the learned Single Judge.
11.2 As far as the observations on the conduct of the
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appellants are concerned, we observe that the Court not
only refrained itself from passing any orders but in the
latter paragraph i.e. paragraph no. 11 categorically
observed that "excluding the immediate para and for the
reasons and conclusions arrived at" set aside the
impugned order dated 25.08.2023. Therefore in the
decision making process undertaken by the learned
Single Judge, the legality of the contentions raised on the
question before him were considered, minus the affidavit
and therefore a direction to remove the affidavit from
records would otherwise not deter us from supporting the
reasonings and the conclusion arrived at by the learned
Single Judge. However, for the purposes of our order,
since we did though independently of the affidavit dated
19.02.2024, examine the issue but were also made to
read the affidavit, the contents of which echoed the oral
submissions before us as well as the learned Single
Judge, we only direct the Registry to take back the
affidavit dated 19.02.2024 filed by the appellants on
record and treat it as a part of the records of the case i.e.
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the petition and the appeal.
12. Except for the aforesaid limited indulgence, we
confirm the CAV judgement and order dated 22.03.2024
as we find no merit in the appeal. Appeal is accordingly
dismissed. Civil application is disposed of.
(BIREN VAISHNAV, J)
(PRANAV TRIVEDI,J)
FURTHER ORDER:
After the aforesaid order was pronounced, learned
Senior Advocate Mr. Dhaval Dave for the appellant
requests for stay of the judgment and order extending the
time granted by the learned Single Judge for compliance
of the order.
Ms. Priya Hingorani, learned Senior Advocate, for
the respondent objects to such request.
Request for stay is rejected.
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The time limit to comply with the order of the
learned Single Judge expires today. The time to comply
with the order of the learned Single Judge is, therefore,
extended upto 13.05.2024.
(BIREN VAISHNAV, J)
(PRANAV TRIVEDI, J)
DIVYA
