1. Petitioner, in this writ petition, has prayed for the following relief:-
(i) For issuance of an appropriate writ(s)/ order(s)/ directions(s) or a writ in the nature of certiorari for quashing of the Inquiry Report of the Internal Complaints Committee, dated 24.07.2019 (Annexure-1) since the said Inquiry was conducted in violation of the provisions of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and in breach of the principles of natural justice;
(ii) For issuance of an appropriate writ(s)/ order(s)/ directions(s) or a writ in the nature of mandamus for quashing of the Order having Reference No. GO/Estb/Susp/ 19-20/3189 dated 06.08.2019, issued by Registrar of Respondent No. 2 (Annexure-2) vide which the petitioner had been placed under suspension and further declare it as non-est in the eyes of law;
(iii) For issuance of an appropriate writ(s)/ order(s)/ directions(s) or a writ in the nature of certiorari for quashing of the impugned Order No.GO/Estb/Susp/19-20/3298 dated 13.08.2019, issued by Registrar of Respondent No. 2 (Annexure 3) instituting disciplinary proceedings against the petitioner vide which the petitioner and further declaring it as non-est in the eyes of law;
(iv) For issuance of an appropriate writ(s)/ order(s)/ directions(s) or a writ in the nature of certiorari for quashing of the Order having Reference No. GO/Fac-MC/Displ/19-20/5942 dated 21.01.2020 (Annexure-4) issued by Respondent No. 2 vide which the petitioner has been dismissed from the services of the institute with immediate effect;
(v) For issuance of an appropriate writ(s)/ order(s)/ directions(s) or a writ in the nature of certiorari for quashing of the impugned Inquiry Report dated 21.01.2020 (Annexure 17) in the disciplinary proceedings against the petitioner;
(vi) For issuance of an appropriate writ(s)/ order(s)/ direction(s) or a writ in the nature of mandamus commanding upon the respondents to reinstate the petitioner into the services of Respondent No. 2 Institute with all consequential benefits;
(vii) Direct Respondent No. 3 to bear the cost of this petition;
2. The brief facts, which gave rise to this writ petition is that this petitioner was serving as DEAN in the respondent No.2 institute. An allegation was leveled by an employee of a Third Party Organisation, who was working in the institute, that this petitioner had sexually harassed her. I have deliberately withheld the identity of the woman and the third party organization for the purpose of privacy. On the said complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, an enquiry was conducted by the Internal Complaints Committee. The Committee found that the allegations leveled is correct, thus, a report was submitted against the petitioner with a recommendation to initiate a Departmental Proceeding. The petitioner was served with a chargesheet in the Departmental Proceeding along with a copy of the report of the Internal Complaints Committee. The petitioner submitted his reply. The employer initiated a Departmental Proceeding against the petitioner. In the Departmental Proceeding, petitioner was found guilty. Thus, he was inflicted with the punishment of dismissal from the institute, resulting in this writ petition challenging not only the dismissal order but also the enquiry report of the Internal Complaints Committee, which found the allegation of sexual harassment to be correct along with its recommendation to initiate a Departmental Proceeding.
3. Learned counsel appearing on behalf of the petitioner submitted that in a Departmental Proceeding, the principle of natural justice has to be followed and in the instant case, at every stage, this principle was violated. Petitioner was not given proper opportunity to defend his case for which he was prejudiced not only once, but on many occasions. It is his contention that even the witness was examined behind his back and the complainant was not allowed to be cross examined by him in the Departmental Proceeding. In the internal enquiry under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, petitioner was not allowed to participate nor he was allowed to cross examine the witnesses and to put forth his defence. The report was also not handed over to the petitioner which prevented him from challenging the same, rather the same was enclosed with the Chargesheet in the Departmental Proceeding, which is in violation of the statutory provision. It is his contention that he was deprived of filing an appeal against the findings of the Internal Complaints Committee, as the same was not furnished to him at an appropriate time. It was only supplied to him along with the Chargesheet. He further submitted that the Departmental Enquiry Officer, himself, became the judge of his own cause and he was the person, who conducted the departmental enquiry and he himself only passed the punishment order against the petitioner. This procedure adopted in the entire proceedings is unknown to law and is again in violation of the principles of natural justice. He further contended that in the Departmental Proceeding only the members of the Internal Complaints Committee were examined by the employer. He lastly submitted that no second show cause notice was served to the petitioner alongwith the enquiry report, rather enquiry report was sent along with the dismissal order, which is a great procedural lapse.
4. Learned Senior Counsel Mr. Rajeev Ranjan, appearing on behalf of the respondent No.2, submitted that the report of the Internal Complaints Committee is crystal clear and establishes that the petitioner is involved in the act of sexual harassment. Once the Internal Complaints Committee report was served to the petitioner, he did not deny the same, thus, no relief can be granted to the petitioner in this writ petition. He further submitted that the petitioner never objected to the constitution of the Internal Complaints Committee nor the report of the Internal Complaints Committee. He admitted that the report of the Internal Complaints Committee was handed over to the petitioner for the first time along with the Chargesheet in the Departmental Proceeding and not prior to that. He argued that the petitioner never asked for any opportunity to cross examine the complainant, thus, he cannot now approach this Court by saying that he has been prejudiced. He contended that though there was a Presenting Officer, but the Enquiry Officer for better appreciation, virtually had examined the complainant in the Departmental Proceeding for his satisfaction, but he admitted that the same was done in absence of the petitioner. He also admitted that no second show cause notice was served to the petitioner.
5. In this writ petition, petitioner is challenging the Departmental Proceeding and the punishment imposed upon him. He has also challenged the Enquiry Report submitted by the Internal Complaints Committee in terms of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
6. The scope of interference in the Departmental Proceeding while invoking writ jurisdiction under Article 226 of the Constitution of India is very limited and the High Court exercising jurisdiction under Article 226 of the Constitution of India is not an Appellate Forum. The Hon’ble Supreme Court in the case of Union of India & Others v. P. Gunasekaran, reported in (2015) 2 SCC 610 has held as under:
“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.”
7. It is well settled that High Courts cannot reappraise the evidence led in the Departmental Proceeding and the scope of interference in a Departmental Proceeding and the punishment imposed, as observed, is very limited. In the case of Union of India & Others versus Subrata Nath, reported in 2022 SCC OnLine SC 1617, the Hon’ble Supreme Court has reiterated that the Courts ought to refrain from interfering with the findings of facts recorded in a Departmental Inquiry except in circumstances where such findings are grossly incompatible with the evidence on record and has held as under:-
“21. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor.”
The Hon’ble Supreme Court in the case of State of Rajasthan & Others versus Bhupendra Singh, reported in 2024 SCC OnLine SC 1908 has held as under:-
“23. The scope of examination and interference under Article 226 of the Constitution of India (hereinafter referred to as the ‘Constitution’) in a case of the present nature, is no longer res integra. In State of Andhra Pradesh v. S Sree Rama Rao, AIR 1963 SC 1723, a 3-Judge Bench stated:
‘7. … The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.’”
8. As per the judgments and the well settled principles of law, no doubt that the principle of natural justice has to be followed in a Departmental Proceeding. Proper opportunity has to be provided to the delinquent to defend his case. Witnesses have to be examined to prove the guilt of the delinquent employee. If some documents are to be relied upon, contents of those documents are to be exhibited by oral evidence. Though Evidence Act is not strictly applicable, yet the contents need to be proved. Further, witnesses must be examined in presence of the delinquent employee and he must be given the opportunity to cross-examine them.
9. Enquiry Officer is a quasi judicial authority. He is an independent authority. As held earlier, in view of the judgment of the Hon’ble Supreme Court, the principle of natural justice has to be strictly followed in a Departmental Proceeding. Violation of principles of natural justice is a ground to set aside the Departmental Proceeding. In this case, the petitioner has alleged and pleaded before this Court that in each and every stage of Departmental Proceeding, principles of natural justice has not been followed and there was gross violation. Considering the said submission, I have gone into the details and have found that the submission of the learned counsel for the petitioner is correct.
10. Now I am discussing the violations, which goes to the root of this case.
11. It is the grievance of the petitioner that in the enquiry proceeding, complainant was examined in absence of this petitioner by the Enquiry Officer, he was not even informed about her examination, neither was he allowed to cross examine her. To consider this submission and correctness of the same, I have gone through the Enquiry Report. In the Enquiry Report, the Enquiry Officer at paragraph 63 has noted that on 22.11.2019 he adjourned the hearing as he wanted to examine the complainant himself. He also noted therein that he examined the complainant through Video Conferencing on 6th January, 2020 in the forenoon and the complainant confirmed her allegation and the unwanted incident. It is apparent from the entire Enquiry Report that this petitioner, i.e., delinquent was not even informed beforehand that the complainant will be examined through Video Conferencing on that date by the Enquiry Officer. It is also a fact that the complainant was examined by the Enquiry Officer at his own behest in absence of this petitioner. It is also a fact that no opportunity to cross-examine the complainant was given to the delinquent. During argument, the counsel for the respondent also admitted the aforesaid fact.
12. In a case when the complainant is being examined and his/her statement is one of the grounds to pass an order against the delinquent employee and to punish him, principle of natural justice demands that the complainant should be examined in presence of the delinquent employee and opportunity to delinquent employee must be given to cross-examine the said complainant. This basic principle has been violated in the instant case. This definitely has caused prejudice to the petitioner. The Hon’ble Supreme Court in the case of Ayaaubkhan Noorkhan Pathan versus State of Maharashtra and Others reported in (2013) 4 SCC 465 at paragraph 24 thereof has held as under: -
24. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Waishampayan [AIR 1961 SC 1623] held that the rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also Union of India v. T.R. Varma [AIR 1957 SC 882], Meenglas Tea Estate v. Workmen [AIR 1963 SC 1719], Kesoram Cotton Mills Ltd. v. Gangadhar [AIR 1964 SC 708], New India Assurance Co. Ltd. v. Nusli Neville Wadia [(2008) 3 SCC 279], Rachpal Singh v. Gurmit Kaur [(2009) 15 SCC 88], Biecco Lawrie Ltd. v. State of W.B. [(2009) 10 SCC 32] and State of U.P. v. Saroj Kumar Sinha [(2010) 2 SCC 772].
13. From paragraph 63 of the Enquiry Report, it is apparent that it is the Enquiry Officer himself, who had examined the witness by putting questions to her. This is an undisputed fact as has been admitted in paragraph 63 itself by the Enquiry Officer. An Enquiry Officer is an independent entity and is an independent adjudicator and is obliged to act fairly. The Hon’ble Supreme Court in the case of Union of India and Others versus Ram Lakhan Sharma reported in (2018) 7 SCC 670 at paragraph 24 thereof has held as under: -
“24. The disciplinary proceedings are quasi-judicial proceedings and the Enquiry Officer is in the position of an independent adjudicator and is obliged to act fairly, impartially. The authority exercising quasi- judicial power has to act in good faith without bias, in a fair and impartial manner.”
Further in the aforesaid judgment, the Hon’ble Supreme Court at paragraphs 26, 27, 28 and 29 has held as follows: -
26. A Constitution Bench of this Court has elaborately considered and explained the principles of natural justice in A.K. Kraipak v. Union of India [(1969) 2 SCC 262]. This Court held that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The concept of natural justice has undergone a great deal of change in recent years. Initially recognized as consisting of two principles, that is, no one shall be a judge in his own cause and no decision shall be given against a party without affording him a reasonable hearing, various other facets have been recognized. In para 20 the following has been held: (SCC p. 272)
“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, namely, (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.
…”
27. In State of U.P. v. Saroj Kumar Sinha [(2010) 2 SCC 772], this Court had laid down that Enquiry Officer is a quasi-judicial authority, he has to act as an independent adjudicator and he is not a representative of the department/disciplinary authority/Government. In paras 28 and 30 the following has been held: (SCC p.782)
“28. An Enquiry Officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The Enquiry Officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/ removal from service.”
28. When the statutory rule does not contemplate appointment of Presenting Officer whether non- appointment of Presenting Officer ipso facto vitiates the inquiry? We have noticed the statutory provision of Rule 27 which does not indicate that there is any statutory requirement of appointment of Presenting Officer in the disciplinary inquiry. It is thus clear that statutory provision does not mandate appointment of Presenting Officer. When the statutory provision does not require appointment of Presenting Officer whether there can be any circumstances where principles of natural justice can be held to be violated is the broad question which needs to be answered in this case. We have noticed above that the High Court found breach of principles of natural justice in Enquiry Officer acting as the prosecutor against the respondents. The Enquiry Officer who has to be independent and not representative of the disciplinary authority if starts acting in any other capacity and proceeds to act in a manner as if he is interested in eliciting evidence to punish an employee, the principle of bias comes into place.
29. M. Rama Jois, J. of the Karnataka High Court had occasion to consider the above aspect in Bharath Electronics Ltd. v. K. Kasi [1986 SCC OnLine Kar 30]. In the above case the order of domestic inquiry was challenged before the Labour and Industrial Tribunal. The grounds taken were, that inquiry is vitiated since Presenting Officer was not appointed and further Enquiry Officer played the role of prosecutor. This Court held that there is no legal compulsion that Presenting Officer should be appointed but if the Enquiry Officer plays the role of Presenting Officer, the inquiry would be invalid. The following was held in paras 8 and 9 (SCC OnLine Kar)
“8. One other ground on which the domestic inquiry was held invalid was that Presenting Officer was not appointed. This view of the Tribunal is also patently untenable. There is no legal compulsion that Presenting Officer should be appointed. Therefore, the mere fact that the Presenting Officer was not appointed is no ground to set aside the inquiry (see: Gopalakrishna Raju v. State of Karnataka [1980 SCC OnLine Kar 18]. It is true that in the absence of Presenting Officer if the inquiring authority plays the role of the Presenting Officer, the inquiry would be invalid and this aspect arises out of the next point raised for the petitioner, which I shall consider immediately hereafter.
9. The third ground on which the Industrial Tribunal held that the domestic inquiry was invalid was that the Enquiry Officer had played the role of the Presenting Officer. The relevant part of the findings read:
‘The learned counsel for the workman further contended that the questions put by the enquiry officer to the management’s witnesses themselves suggest that he was biased and prejudiced against the workman. There has been no explanation as to why no Presenting Officer was appointed and as to why the enquiry officer took upon himself the burden of putting questions to the management’s witnesses. The enquiry proceedings at Ext. A-6 disclose that after the cross-examination of the management’s witnesses by the defence, the enquiry officer has further put certain questions by way of explanation, but from their nature an inference arises that they are directed to fill in the lacuna. The learned counsel for the management contended that the enquiry officer has followed the principles of natural justice and that the domestic enquiry is quite valid. I am of the view that the fact that the enquiry officer has himself taken up the role of the Presenting Officer for the management goes to the root of the matter and vitiates the enquiry.’
As far as the position in law is concerned, it is common ground that if the inquiring authority plays the role of a prosecutor and cross- examines defence witnesses or puts leading questions to the prosecution witnesses clearly exposing a biased state of mind, the inquiry would be opposed to principles of natural justice. But the question for consideration in this case is : whether the Enquiry Officer did so? It is also settled law that an inquiring authority is entitled to put questions to the witnesses for clarification wherever it becomes necessary and so long the delinquent employee is permitted to cross examine the witnesses after the inquiring authority questions the witnesses, the inquiry proceedings cannot be impeached as unfair (See Mulchandani Electrical and Radio Industries Ltd. v. Workmen [(1975) 4 SCC 731].”
30. This Court had occasion to observe in Workmen v. Lambabari Tea Estate [(1966) 12 FLR 361], that if the Enquiry Officer did not keep his function as Enquiry Officer but becomes prosecutor, the inquiry is vitiated. The following was observed: (FLR p. 362)
“The inquiry which was held by the management on the first charge was presided over by the Manager himself. It was conducted in the presence of the Assistant Manager and two others. The enquiry was not correct in its procedure. The Manager recorded the statements, cross-examined the labourers who were the offenders and made and recorded his own statements on facts and questioned the offending labourers about the truth of his own statements recorded by himself. The Manager did not keep his function as the enquiring officer distinct but became witness, prosecutor and Manager in turns. The record of the enquiry as a result is staccato and unsatisfactory.”
14. From the aforesaid judgments, it is quite clear that Enquiry Officer cannot act as a Prosecutor also. Once he acts as a Prosecutor, he compromises his independence as an adjudicator. Here creeps the principle of bias. In the instant case, the Enquiry Officer was the Vice Chancellor of the University. He himself examined the witnesses in absence of the delinquent employee and also inflicted the punishment. Thus, he became the judge of his own cause. In the aforesaid judgment in the case of Ram Lakhan Sharma (supra) at paragraph 31, the Hon’ble Supreme Court has endorsed the judgment of the Madhya Pradesh High Court [Union of India versus Mohd. Naseem Siddiqui (ILR 2004 MP 821] and has culled out the fundamental principles of natural justice, which is that no man shall be the judge of his own cause. The seven recognized facets have been reproduced by the Hon’ble Supreme Court and it has been held that if any one of the fundamental rights are breached, the enquiry will be vitiated. Paragraph 31 of the aforesaid judgment Union of India versus Ram Lakhan Sharma (supra) reads as under: -
31. A Division Bench of the Madhya Pradesh High Court speaking through R.V. Raveendran, C.J. (as he then was) had occasion to consider the question of vitiation of the inquiry when the Enquiry Officer starts himself acting as prosecutor in Union of India v. Mohd. Naseem Siddiqui [ILR 2004 MP 821]. In the above case the Court considered Rule 9(9)(c) of the Railway Servants (Discipline and Appeal) Rules, 1968. The Division Bench while elaborating fundamental principles of natural justice enumerated the seven well-recognised facets in para 7 of the judgment which is to the following effect:
“7. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well-recognised facets:
(i) The adjudicator shall be impartial and free from bias.
(ii) The adjudicator shall not be the prosecutor,
(iii) The complainant shall not be an adjudicator,
(iv) A witness cannot be the adjudicator,
(v) The adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges,
(vi) The adjudicator shall not decide on the dictates of his superiors or others,
(vii) The adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations.
If any one of these fundamental rules is breached, the inquiry will be vitiated.”
15. It was also held in the subsequent paragraphs where the Enquiry Officers acts as a Presenting Officer, bias can be presumed. In this case, from perusal of paragraph 63 of the Enquiry Report, it is apparent that Enquiry Officer has acted as a Presenting Officer, thus, there is presumption of biasness.
16. Further, the Enquiry Officer in this case is the Vice Chancellor. The said Vice Chancellor is also the Disciplinary Authority, who dismissed the petitioner, which is evident from Annexure 17, the order dated 21st January, 2020 wherein the Vice Chancellor has held that he has prepared the report in terms of the rules of the institution and has held him guilty of the misconduct and thus, he has imposed penalty of dismissal. This also creates a doubt about the independence of the Enquiry Officer and the Disciplinary Authority.
17. Another ground has been taken that the second show cause notice along with the Enquiry Report was not furnished to the petitioner. This fact has also been admitted by the counsel for the respondents and is also drawn from the record. Annexure 17 is the order of dismissal, which is accompanied by the Enquiry Report, which finds the petitioner to be guilty.
Admittedly, no second show cause notice was issued to the petitioner. This created prejudice to the petitioner also as he was unaware about the findings. The importance of issuing second show cause notice and furnishing the Enquiry Report and what would be the consequence has been dealt by the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad & Others versus B. Karunakar & Others reported in (1993) 4 SCC 727. The Hon’ble Supreme Court at paragraphs 26, 59 and 60 of the said judgment has held as under: -
26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.
59. Even prior to the Constitution (Forty-second Amendment) Act the entire proceedings was considered as an integral whole and on receipt of the report of the enquiry officer the disciplinary authority was required to consider the record and to arrive at a provisional conclusion thereon; a show-cause notice with the proposed punishment was a part of the reasonable opportunity envisaged under Article 311(2). The supply of the copy of the report at that stage was made an integral part of the reasonable opportunity. On receipt thereof the delinquent officer got the opportunity to controvert even the findings recorded, their correctness and legality, showing that the charges which were held proved by the enquiry officer could not be sustained for the reasons set forth in the reply to the show-cause notice. Alternatively he was entitled to show mitigating or extenuating circumstances including previous conduct or record of service for dropping the action or to impose lesser punishment.
60. Section 44 of the Forty-second Amendment Act did away with supply of the copy of the report on the proposed punishment but was not intended to deny fair, just and reasonable opportunity to the delinquent, but to be a reminder to the disciplinary authority that he is still not absolved of his duty to consider the material on records, the evidence along with the report, but before he does so, he must equally accord to the delinquent, a fair and reasonable opportunity of his say on the report when the disciplinary authority seeks to rely thereon.
18. In view of what has been held and discussed above, I hold that this is entirely a case of violation of principles of natural justice.
19. So far as the Departmental Proceeding is concerned, I find that only the members of the Internal Complaints Committee have been examined as witnesses. As noted earlier, the complainant was examined by the Enquiry Officer in absence of this petitioner and no opportunity was given to the petitioner to cross examine her. Members of the Internal Complaints Committee merely supported their findings on the report of the Internal Complaints Committee. Admittedly, they are not the witnesses on the facts of the case. They have only stated what the victim stated before them during the enquiry conducted by them. These statements given by the Committee members are not the statements of facts and are not relevant for the purpose of Departmental Proceeding. Admittedly, the petitioner was not allowed to participate in the internal enquiry.
20. Proving the misconduct before the Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 cannot automatically convert into proving the guilt of a delinquent in a Departmental Proceeding. The report of the Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 can at best be treated to be preliminary enquiry report to initiate a Departmental Proceeding. The Hon’ble Supreme Court in the case of Dr. Vijayakumaran C.P.V. versus Central University of Kerala and Others reported in (2020) 12 SCC 426 has held that in such type of cases a regular enquiry or a departmental action, as per the service rules is indispensable so as to enable the employee concerned to vindicate his position and establish his innocence. It is necessary to quote paragraph 12 of the aforesaid judgment, which reads as under: -
12. Upon receipt of complaints from aggrieved women (girl students of the University) about the sexual harassment at workplace (in this case, University campus), it was obligatory on the Administration to refer such complaints to the Internal Committee or the Local Committee, within the stipulated time period as predicated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short “the 2013 Act”). Upon receipt of such complaint, an inquiry is required to be undertaken by the Internal Committee or the Local Committee in conformity with the stipulations in Section 11 of the 2013 Act. The procedure for conducting such inquiry has also been amplified in the 2015 Regulations. Thus understood, it necessarily follows that the inquiry is a formal inquiry required to be undertaken in terms of the 2015 Regulations. The allegations to be inquired into by such Committee being of “sexual harassment” defined in Section 2(n) read with Section 3 of the 2013 Act and being a serious matter bordering on criminality, it would certainly not be advisable to confer the benefit on such employee by merely passing a simple order of termination. Such complaints ought to be taken to its logical end by not only initiating departmental or regular inquiry as per the service rules, but also followed by the other actions as per law. In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence. We say no more.”
21. From the aforesaid judgment of the Hon’ble Supreme Court, it is clear that merely because an allegation has been found to be true by the Internal Complaints Committee, the same will not amount to automatic dismissal, rather a Departmental Proceeding has to be initiated. Thus, the Enquiry Report of the Internal Complaints Committee cannot be and should not be the sole ground to dismiss the delinquent employee. In this case I find that the Enquiry Officer mainly relied upon the Enquiry Proceeding conducted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to hold this petitioner guilty.
22. In this case, the petitioner has also challenged the act of the respondents by which they have not handed over the copy of the Enquiry Report under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. It may be noted that University Grants Commission, in exercise of the powers conferred by clause (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956 had formulated University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 (hereinafter referred to as “the 2015 Regulations”), wherein Clause 8 provides for conducting an enquiry. It is necessary to quote Section 8, which reads as under: -
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 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 recommendations 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 before 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.
(7) The aggrieved party may seek conciliation in order to settle the matter. No monetary settlement should be made as a basis of conciliation. The HEI shall facilitate a conciliation process through ICC, as the case may be, once it is sought. The resolution of the conflict to the full satisfaction of the aggrieved party wherever possible, is preferred to purely punitive intervention.
(8) The identities of the aggrieved party or victim or the witness or the offender shall not be made public or kept in the public domain especially during the process of the inquiry.
23. From perusal of Clause 8 (3), it is clear that on completion of the enquiry, findings and the report shall be served to both the parties to the complaint, meaning thereby to the complainant and the person against whom accusation has been made. Clause 8(5) provides that an appeal may be filed by either of the parties before the Executive Authority of the HEI within 30 days. In this case, admittedly, this right of filing an appeal challenging the findings and report has been taken away by the respondents from this petitioner as the report was not supplied to him earlier, rather was supplied only with the Departmental Chargesheet, which is not the intent of the legislature. Being a statutory right, the same could not have been taken away by the authority by any means. This deprivation has caused great prejudice to the petitioner. This also attracts bias.
24. It is pertinent to mention herein that right to file an appeal against the report of the Internal Complaint Committee and against the recommendations made therein is also a statutory right under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, wherein Section 18 provides for appeal, which reads as under: -
18. Appeal. – (1) Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub- section (3) of section 13 or sub-section (1) or sub- section (2) of section 14 or section 17 or non- implementation of such recommendations may prefer an appeal to the Court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed.
(2) The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.
25. In this case, admittedly, Enquiry Report was served along with the Departmental Chargesheet. The purpose of filing an appeal is to give an opportunity to the aggrieved party to place his defence before the Appellate Authority. The Appellate Authority has to take a decision whether the findings of the Internal Complaints Committee and its recommendation is correct or not. An independent decision with independent application of mind has to be made by the Appellate Authority. Once a decision is taken, then only Disciplinary Proceeding can be initiated. In this case, the Departmental Proceeding has already been initiated without giving this opportunity of filing an appeal to the petitioner. The respondents have, thus, taken away the statutory right of this petitioner. No authority can take away a statutory right vested upon any person and if it is done, it violates the principles of natural justice. The same has been done in this case.
26. From what has been held above, at each and every stage of the Departmental Proceeding, there was violation of principles of natural justice. The procedures have been violated. The petitioner has been deprived, he was not given opportunity to defend his case properly and he has been deprived time and again thereby respondents have acted in a bias manner. All these vitiate the entire Departmental Proceeding. As a cumulative effect, the impugned Order of Punishment being Order having Reference No. GO/Fac- MC/Displ/19-20/5942 dated 21.01.2020, the Departmental Proceeding and the Departmental Enquiry Report are set aside and quashed. The petitioner should be given an opportunity to challenge the findings and recommendations of the Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 as he has been deprived of his important rights vested in terms of Clause 8(5) of the 2015 Regulations. The Internal Complaints Committee’s report, which was handed over to the petitioner along with the Departmental Proceeding, should be treated to be proper service of the report of the Internal Complaints Committee. I have not gone into the merits of the findings arrived at by the Internal Complaints Committee nor I have quashed the said report as I am inclined to give liberty to the petitioner to avail the remedy of appeal against the said order. Since I have quashed the Departmental Proceeding, as the same violates the principles of natural justice at every stage and also as the bias is established, I give liberty to the respondent No.2, if they so intend, to initiate a fresh Departmental Proceeding against the petitioner, after deciding the appeal filed by the petitioner within 4 (four) weeks from today. If such appeal is filed, respondents will decide the same within a period of 8 (eight) weeks, thereafter. The petitioner be reinstated.
27. This writ petition stands allowed. Pending interlocutory applications, if any, stand disposed of.
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