Silajit Guha vs Sikkim University And Ors
2021 Latest Caselaw 27 Sikkim

                                 HIGH COURT OF SIKKIM                    Court No.1
                           (Records of Proceedings through VC)


                               W.A. No. 01/2021


SILAJIT GUHA                                                     PETITIONER (S)
                                       VERSUS
SIKKIM UNIVERSITY AND ORS.                                       RESPONDENT (S)


For Petitioner         :         Ms. Kalol Basu, Advocate.
                                 Mr. Suman Banerjee, Advocate.
                                 Mr. Ranjit Prasad, Advocate.

For Respondent nos.1   :         Mr. Karma Thinlay, Sr. Advocate with
to 4                             Mr. Karma Thinlay Gyatso, Advocate.


For Respondent no.5    :         Ex-Parte.

Date: 03/07/2021

CORAM :

     HON'BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CJ.
        HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, J.
                              ...


                                  O R D E R (O R A L)

Per J.K Maheshwari, CJ

1. Challenging the Judgment dated 08.12.2020 passed in

WP(C) No.30 of 2019 (Silajit Guha vs. Sikkim University &Ors.)by

learned Single Bench, partly dismissing the petition deciding the issue

of jurisdiction with certain observations this intra Court appeal has

been preferred under Section 148 of the Sikkim High Court (Practice &

Procedure) Rules, 2011.

2. The appellant who was a Professor in the department of

respondent no.1, Sikkim University (hereinafter referred as the

University). The respondent no.5, a student of the department made a

complaint of sexual harassment against the appellant to the Internal

Complaint Committee (in short ICC). The ICC conducted an inquiry

and the report dated 08.06.2019 was submitted to the Executive

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Council of the University i.e. respondent no.3. The appellant was

served with show cause notice dated 10.06.2019 enclosing report of

inquiry which was replied by him.

3. The Registrar of the University issued the office order

bearing no.201/2019 dated 28.06.2019, terminating the services as

per the 33rd Meeting of the Executive Council. Relying upon the inquiry

report and while considering the representation of the petitioner under

clause 8(6) of the University Grant Commission (Prevention,

Prohibition and Redressal of Sexual Harassment of Women Employees

and Students in Higher Educational Institutions) Regulation, 2015

(hereinafter in short referred as UGC regulations) Council was of the

opinion that the appellant is not fit to be retained in the service of the

University, however, terminated his service with immediate effect. The

petitioner preferred a statutory appeal on 01.07.2019 which was

pending. In the meantime, the Writ petition seeking quashment of

show cause notice dated 10.06.2019, the inquiry report dated

08.06.2019 and the order of termination dated 28.06.2019 and

various other consequential reliefs was filed.

4. Learned single Judge observed and proceeded to decide

the question of jurisdiction of ICC looking to the definition of

'workplace' specified in Section 2(o) of the Sexual Harassment of

Women at Workplace (Prevention, Prohibition and Redressal) Act,

2013 (hereinafter to be referred as the Act). While deciding the said

issue the Court proceeded to see the allegations made in the complaint

statement of the complainant dated 12.05.2019 and also of the

student before the ICC and observed that the definition of the

'workplace' is inclusive one. Therefore, looking to the nature of the

allegations came in the statement prima facie ICC has jurisdiction. It is

further observed in the same paragraph that the Executive Authority

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before whom the appeal is pending may examine the issue of sexual

harassment at 'workplace' looking to the definition of the 'workplace',

in view of the Section (9) of the Act, Therefore, looking to the said

contradictory observation appellant came before this Court assailing

the same.

5. Learned Counsel for the appellant contends that at one

place learned Single Judge proceeded to decide the scope of the

definition of the 'workplace' observing that it is inclusive definition but

simultaneously the same question was left open to decide by the

Executive Authority in terms of Section 9 of the Act, which cannot be

decided exceeding to the observations of the Court.

6. It is further urged that the premises on which observation

has been made by the Court is the statement of the Complainant as

well as the co-students. If it has been dealt with by the Court now on

this count nothing remain to be decided by the Executive Authority,

therefore, the decision taken by the Court on the point of the

jurisdiction explaining the ambit and scope of workplace is not

justifiable, more so the said question cannot be left open for decision

by the Executive Authority.

7. After having heard learned Counsel for the appellant as

well as learned Counsel for the respondent, we find much substance in

the argument of the learned Counsel for the appellant. It is to observe

that in the facts of the case the ambit and scope of workplace as

specified in the Section 2(o) of the Act can be decided after

appreciation of the evidence brought before ICC, as considered by

learned Single Bench. In Case, the ambit and scope is decided by the

Court then nothing remain to adjudicate for the Executive Authority in

an appeal. In the said context, in our considered opinion, observation

of the learned Single Judge referring section 2(o) of the Act i.e.

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'workplace' its ambit and scope is not proper in particularly when the

same question is permitted to be decided by the Executive Authority.

Therefore, the finding on the point of jurisdiction explaining the

definition of 'workplace' is inclusive one, stands set aside to such

extent and the liberty is granted to the appellant to raise the said

question before the Executive Authority who shall decide the same in

accordance with law.

8. Learned Single Judge has further proceeded to refer UGC

Regulations no.8 and held that because the appeal is pending before

the Executive Authority, therefore, order of termination would be kept

in abeyance and appeal shall be decided by the Authority on all issues

and the questions, as raised. The said finding of learned single Judge

would remain intact and it does not warrant any interference.

9. Accordingly, this appeal is hereby allowed in part, in view

of the foregoing observation. It is directed that the Executive Authority

shall decide the appeal as observed by the learned Single Judge

without influencing with the observation recorded in the Judgment on

the point of jurisdiction or on the point of ambit and scope on the

definition of 'workplace'. The said issue be decided by the Executive

Authority independently. The remaining part of the impugned order

would continue to operate. The Executive Authority shall decide the

appeal as expeditiously as possible not later than three months.

                        Judge                                  Chief Justice
avi




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