Madras High Court
Dr.K.Karnamaharajan vs The Registrar
Author: V.M.Velumani
Bench: V.M.Velumani
W.P.(MD).No.19440 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: Delivered on:
13.11.2019 24.01.2020
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P.(MD).No.19440 of 2019
and
W.M.P.(MD)Nos.15881 & 17023 of 2019
Dr.K.Karnamaharajan .. Petitioner
Vs.
1.The Registrar,
Madurai Kamaraj University,
Palkalai Nagar,
Madurai – 625 021.
2.Muthu (Reg.No.F 9906),
Research Scholar,
Centre for Film and Electronic Media Studies,
Madurai – Kamaraj University,
Madurai – 625 021.
3.The Syndicate Committee,
Madurai Kamaraj University,
Palkalai Nagar,
Madurai – 625 021.
4.The Convenor,
Internal Complaints Committee,
Madurai Kamaraj University,
Palkalai Nagar,
Madurai – 625 021.
5.The Vice Chancellor,
Madurai Kamaraj University,
Madurai – 625 021. .. Respondents
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Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of writ of Certiorarified Mandamus to call for
the records pertaining to the impugned order in his proceedings
Ref.No.MKU/SO/ICC/CRS/2019 dated 22.08.2019 passed by the 1st
Respondent and quash the same on the ground that the same is
arbitrary, illegal and without any legal basis and consequently directing
the 1st Respondent to reinstate the Petitioner as a Professor.
For Petitioner : Mr.V.Prakash, Senior Counsel
for M/s.Indhira
For RR 1, 3 to 5 : Mr.Isaac Mohanlal, Senior Counsel
for M/s.Isaac Chambers for
Mr.K.Ragatheesh Kumar
For R2 : Mr.D.Sadia Raja
ORDER
Writ Petition is filed for issuance of Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order in his proceedings Ref.No.MKU/SO/ICC/CRS/2019 dated 22.08.2019 passed by the 1st Respondent and quash the same on the ground that the same is arbitrary, illegal and without any legal basis and consequently directing the 1st Respondent to reinstate the Petitioner as a Professor.
2. The case of the petitioner is as follows:
(a). The petitioner is working as Professor and Head Centre for Filament and Electronic Media Studies, Madurai Kamaraj University, 2/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 Madurai – 625 021. The 2nd respondent was allotted under the supervision of petitioner for full-time research programme by the 1st respondent vide Ref.No.R1/FT/Regn/JMC/17, dated 09.10.2017 in Journalism and Communication and she joined the full-time research program on 23.10.2017.
(b). The learned Senior Counsel appearing for the petitioner contended that the 2nd respondent did not attend the Centre on 02.11.2018, but the petitioner found that she had signed the attendance register on anterior days for forthcoming days. The petitioner contacted the 2nd respondent on 02.11.2018 at 03.00 P.M. over telephone from the centre. The petitioner communicated message of absence through SMS / WhatsApp / E-mail. The 2nd respondent replied that she came to the centre and due to physical illness, she went to hostel. On verifying the hostel attendance, it was found that she was not marked present on that date i.e., on 02.11.2018.
(c). The 2nd respondent normally use e-mail and WhatsApp for communication and also for submitting her research papers even at late night. She visited the library in the Malayalam University of Kerala for one month and re-joined on 03.12.2018 and sent an e-mail to the petitioner about her re-joining, as the petitioner was on Duty Leave on 3/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 that day. On 04.12.2018, the petitioner issued a letter to the 2 nd respondent seeking explanation for unauthorized absence and providing false claims and attendance. The petitioner was shocked and surprised that the 2nd respondent filed a complaint against the petitioner on 06.12.2018 making false allegations that -
“(i) Petitioner made inappropriate comments for sexual favours
(ii) Not arranging table on her wish and he
(iii) Demanded bribe of Rs.2,00,000/- for process of sanction of admission”
(d) The 4th respondent constituted an Internal Complaints Committee (ICC) to enquire the complaint against the petitioner. The constitution of the said Committee is against the regulations of the UGC norms and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Act) [hereinafter referred to as “the Act”]
(e) The complaint of the 2nd respondent before the 4th respondent is that petitioner distributed an audio record expressing that a sexual malfeasance conversation which abused her is the main sexual harassment charge. The language spokenp in the audio record is Malayalam and the 4th respondent has got an expert opinion from a 4/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 Professor in Malayalam from Tirur University, Kerala. The expert gave an opinion that he could not find any element of misconduct by the petitioner. Therefore, the complaint made by the 2 nd respondent is a false complaint which does not fall within the definition of the Section 2(n) of the Act.
(f) The 4th respondent Committee was not properly constituted. As per the Rules of 1st respondent, Head of Departments cannot be nominated to the Committee. One Dr.S.Rajasabala, who assigned the report is an Associate Professor, Head of the Department of Theoretical Physics who is not in the list of ICC members. The petitioner was called for enquiry on 12.12.2018 and 21.01.2019. On both the occasions, the petitioner submitted written replies stating that he is innocent. The 2 nd respondent did not produce the original voice recorded conversation but produced only doctored wrote CD and 4th respondent did not call upon the 2nd respondent to produce the original supporting evidence. The petitioner has given detailed explanation to the 4th respondent and to the 1st respondent and material documents in support of his contention that he is innocent. In the enquiry, the Chairperson Dr.V.S.Vasantha and Member Dr.Pushparaj, both acted biased with communal discrimination. The 4th respondent Committee did not consider the expert's opinion. The 4th respondent Committee without verifying and finding out facts, chose 5/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 to recommend punishment. The Committee has no power to recommend any punishment.
(g) The respondents 1 and 2 failed to consider the explanation of the petitioner and failed to follow the principles of natural justice. The 4th respondent Committee without following the procedure had submitted a vague report signed on 03.02.2019, i.e., on Sunday and 5 members signed with date as 03.02.2019 and 4 members signed without date. The member Ms.Minu Sarathy, Fellow Research Scholar of the 2nd respondent residing in the same hostel, translated the audio in Malayalam, but did not sign the report. The 4th respondent Committee did not furnish the copy of the complaint as well as copy of the audio CD submitted by the 2nd respondent. The petitioner sought for copy of the report dated 03.02.2019 of the 4th respondent Committee and the same was furnished to the petitioner on 29.03.2019 at 07.30 P.M.
(h) The 3rd respondent on receipt of the report of the 4th respondent, without any debate, passed a resolution for maximum punishment to the petitioner.
(i) The 1st respondent issued a show cause notice on 13.06.2019 calling upon the petitioner to submit his explanation within 15 days. The 6/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 petitioner sent a reply through his advocate to the 3rd respondent and 4th respondent seeking extension of time by 15 days. The said letter sent by speed post was delivered on 28.06.2019. There was no communication with regard to said request of the petitioner about granting or rejecting the request. The petitioner filed W.P.(MD).No. 14845 of 2019 before this Court challenging the show cause notice. This Court ordered notice on 03.07.2019 to the respondents returnable by 2 weeks. Inspite of the said notice served on the 1st respondent, the impugned order dated 22.08.2019 was served on the petitioner at 04.30 P.M., imposing punishment of compulsory retirement against the petitioner, inspite of pendency of Writ Petition was ordered.
(j) The 2nd respondent has not submitted any evidence to support her allegation for sexual harassment. The 2nd respondent has not furnished any date on which the petitioner sexually harassed. The 4th respondent Committee, without any evidence made general observation “the conversation appeared to have happened in the last week of October”. The 4th respondent, without any conclusive supporting documents and suppressing the expert's opinion, recommended several punishments without any power to do so. Only two members Ms.Minu Sarathy and Ms.Mary Jermenslet Nepolion know Malayalam and other members, without knowing Malayalam have recommended punishment 7/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 which are untenable. The respondents 1 and 5 lobbied the 3 rd respondent to impose the punishment of compulsory retirement to fill the creamy post of the University. The 1st respondent passed the impugned order on extroneous consideration suppressing the written replies of the petitioner. The 1st respondent failed to get consent from Chancellor and Higher Education Authorities of the Government before imposing the impugned order of compulsory retirement. The respondents 1, 3 and 4 mis-used their power and imposed the impugned punishment of compulsory retirement. The 4th respondent did not provide opportunity to the petitioner to cross examine the witnesses. The 3rd respondent failed to recommend the 2nd high level appeal Committee to pursue the complaint and enquiry report. The impugned order of the 2nd respondent is against the law, passed without giving any opportunity to the petitioner to put forth his case. The impugned punishment ordered is “Exfacie”, illegal, arbitrary and passed without application of Statute.
3. The learned Senior Counsel appearing for the petitioner referred to the additional affidavit raising additional grounds and submitted that -
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(i) The 4th respondent Committee conducted enquiry in violation of Service Rules and principles of natural justice.
(ii) The 4th respondent Committee did not examine the witnesses in the presence of petitioner and enquiry was held behind the back of the petitioner. The deposition was not recorded in the presence of petitioner and the petitioner was not given opportunity to cross examine the witnesses.
(iii) In the complaint dated 06.12.2018, the 2 nd respondent has not made any allegation regarding any recorded telephonic conversation. The 4th respondent Committee found the petitioner guilty of misconduct which were not even found in the complaint dated 06.12.2018.
(iv) The 2nd respondent joined on 23.10.2017 in the full-time research program, while in the complaint, the 2nd respondent has stated that her joining date is 28.09.2018, in order to maintain time frame of complaint and to avoid limitation.
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(v) As per Section 8(5) of UGC (Prevention, Prohibition and Redressal of sexual harassment of women employees and students in higher educational Institutions) Regulations 2015, an appeal against the findings of recommendation of Internal Committee may be filed by either party before the Executive Authority of University within a period of 30 days from the date of recommendation. The 4th respondent Committee or Executive Authority of University did not serve the copy of the enquiry report to the petitioner within the stipulated time in order to prevent the petitioner from filing appeal.
(vi) The report of the 4th respondent Committee is not a substitute for an enquiry under Service Rules. Section 13(3) of the Act specifically states that 4th respondent Committee after arriving at a finding shall recommend to the employer to take action for sexual harassment as a misconduct in accordance with Service Rules applicable to the employees or whether no Service Rules have been made in such a manner as may be prescribed. In the present case, the respondents 1 and 5 have imposed punishment on the petitioner based on the report of the 4th respondent Committee without any enquiry in accordance with Service Rules.
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(vii) The learned Senior Counsel appearing for the petitioner filed written arguments and contended that petitioner applied whitener on 02.11.2018 where the 2nd respondent signed and marked that the 2nd respondent was absent on that day and sought for an explanation from the 2nd respondent. The 2nd respondent submitted the edited audio of conversation between the petitioner and the 2nd respondent without date and time of recording. The 4th respondent Committee, in the report has stated that the said audio was recorded in the last week of October which itself shows that it was edited.
(viii) The petitioner has informed the 2nd respondent to go to the main library to collect the books and go to room or house and spend a week and bring back the written material for correction. The petitioner in the enquiry before the 4th respondent contended that the language of the petitioner is misunderstood. The petitioner has instructed the 2nd respondent to bring back the written materials for correction, but the 2nd respondent has submitted the edited and incomplete version to support her false claim.
(ix) The letter of consent alleged to have given by one Ms.Minu Sarathy referred to in the report is not provided by the 4th respondent. In the complaint dated 06.12.2018, the 2nd respondent did not allege 11/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 about the telephonic conversation of sexual allegation of petitioner. The petitioner has objected to the constitution of Committee and Chairperson, Dr.V.S.Vasantha, member and their functioning and biased enquiries on 10.12.2018, 12.12.2018 and 27.01.2019 to higher authorities/respondents through written letters as well as through e-mails.
(x) Before the 4th respondent, 39 witnesses were examined and nowhere sexual misconduct of the petitioner was recorded and proved. The 4th respondent Committee was constituted in May 2018 and the enquiry was conducted during November 2018 and the Committee submitted its report on 05.02.2019 but the 4th respondent Committee was not constituted according to the UGC norms, 2015. The Head of the Department should not be a member of Internal Complaints Committee according to the 1st respondent's Rules. The Chairperson Dr.P.S.Vasantha, Professor, Dr.S.Rajashabala and Dr.S.Pushparaj are Associate Professors and Heads of the Departments and they are not entitled to be part of the Committee. As per Section 4(2)(a), Presiding Officer should be senior level women and as per Section 4(2)(b), atleast 2 members should have legal knowledge and Women's Social Welfare. 12/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019
(xi) Not obtaining senior level employee of Chairperson as contemplated under Section 4(2)(a) and non-inclusion of 2 members with legal knowledge as contemplated under Section 4(2)(b), violates Section 7(c) of the Act. Dr.V.S.Vasantha is of the same cadre of the petitioner and she is not a senior to the petitioner and not eligible to be appointed as Chairperson of the Committee.
3(a). The learned Senior Counsel appearing for the petitioner further submitted that none of the 4th respondent Committee are either “Social worker” (or) they are possessing “Legal” knowledge (or) reputation of being committed to the “Cause of women”. As per the procedure of University, three students can be members of Committee elected from Under Graduate, Masters and Research Scholar level, but, in the present Committee, three Research Scholars were arbitrarily selected. Dr.V.S.Vasantha, Presiding Officer of the 4th respondent Committee has two E-mail IDs as per University website, as Dr.Vasantha as well as Dr.Vasantha Pandian. Both Dr.Vasantha and Dr.Vasantha Pandian are one and the same person. [email protected] is the E-mail ID of Dr.Vasantha as displayed in the University website and also Vasantha Pandian. The expert from whom Dr.Vasantha Pandian sought for opinion has gave an opinion based on the transcript of conversation that he could not find any element of misconduct by the petitioner. He 13/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 also opined that as per conversation, the 2nd respondent says that she was so particular in doing Ph.D with him and has great respect for him as an academician. The 4th respondent suppressed and failed to consider the expert opinion which has caused prejudice to the petitioner. The impugned order of punishment was issued without obtaining sanction and consent from Chancellor. As per Section 4(a) of Madurai Kamaraj University Statutes, sanction of the Chancellor is essential to take any service action and any person aggrieved by the said order can prefer an appeal as per Section 4(b) of the statutes within 30 days. The alleged sexual harassment is not as contemplated under Section 2(n) of the Act. The 4th respondent has violated Sections 11 and 13 of the Act. The punishment of compulsory retirement is disproportionate to the charges leveled against the petitioner. The learned Senior Counsel for the petitioner in support of his contention relied on the following judgments and prayed for setting aside the order of the 1st respondent.
(i) AIR 2015 (SC) 2764 [Zuari Cement Ltd. v. Regional Director E.S.I.. Hyderabad and Ors.]
14. As per the scheme of the Act, appropriate government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand and Others vs. Ambay Cements and Another, (2005) 1 SCC 368, it was held that It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. In Babu Verghese and Others vs. Bar Council of Kerala and Others, (1999) 3 SCC 422, it was held as under: 14/49
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31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all.
The origin of this rule is traceable to the decision in Taylor v. Taylor, (45 LJCH 373) which was followed by Lord Roche in Nazir Ahmad v. King Emperor, (AIR 1936 PC 253) who stated as under:
[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. [pic] 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P., (AIR 1954 SC 322 and again in Deep Chand v.
State of Rajasthan (AIR 1961 SC 1527). These cases were considered by a three- Judge Bench of this Court in State of U.P. v. Singhara Singh (AIR 1964 SC
358) and the rule laid down in Nazir Ahmad case (AIR 1936 PC 253) was again upheld.
32. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law. 14. As per the scheme of the Act, appropriate government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand and Others vs. Ambay Cements and Another, (2005) 1 SCC 368, it was held that It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. In Babu Verghese and Others vs. Bar Council of Kerala and Others, (1999) 3 SCC 422, it was held as under: 31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, (45 LJCH 373) which was followed by Lord Roche in Nazir Ahmad v. King Emperor, (AIR 1936 PC
253) who stated as under: [W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. [pic] 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P., (AIR 1954 SC 322 and again in Deep Chand v. State of Rajasthan (AIR 1961 SC 1527). These cases were considered by a three- Judge Bench of 15/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 this Court in State of U.P. v. Singhara Singh (AIR 1964 SC 358) and the rule laid down in Nazir Ahmad case (AIR 1936 PC 253) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law.
(ii) 2016 (2) SCC 204 [CHAMOLI DISTRICT CO-
OPERATIVE BANK LTD. THROUGH ITS
SECRETARY/MAHAPRANDHAK & ANR. Vs.
RAGHUNATH SINGH RANA & ORS.
19. The compliance of natural justice in
domestic/disciplinary inquiry is necessary has long been established. This Court has held that even there are no specific statutory rule requiring observance of natural justice, the compliance of natural justice is necessary. Certain ingredients have been held to be constituting integral part of holding of an inquiry. The Apex Court in Sur Enamel and Stamping Works Pvt. Ltd. v. Their Workmen reported in (1964) 3 SCR 616 has laid down following :-
... An enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him, (ii) the witnesses are examined ordinarily in the presence of the employee in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses,
(iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the inquiry officer records his findings with reasons for the same in his report.
20. The Apex Court again in State Bank of India Vs. R.K. Jain and Ors., reported in (1972) 4 SCC 304 held that if an inquiry is vitiated by violation of principles of natural justice or if no reasonable opportunity was provided to the delinquent to place his defence, it cannot be characterized as a proper domestic inquiry held in accordance with the rules of natural justice. In paragraph 23, the following was laid down :-
16/49
http://www.judis.nic.in W.P.(MD).No.19440 of 2019 ......As emphasised by this Court in Ananda Bazar Patrika (P) Ltd. v. Its Workmen, (1964) 3 SCR 601, the termination of an employee's service must be preceded by a proper domestic inquiry held in accordance with the rules of natural justice. Therefore, it is evident that if the inquiry is vitiated by violation of the principles of natural justice or if no reasonable opportunity was provided to a delinquent to place his defence, it cannot be characterized as a proper domestic inquiry held in accordance with the rules of natural justice......
(iii) 2013 (4) SCC 465 [Ayyaubkhan Noorkhan Pathan v. State of Maharastra and others]
24. A Constitution Bench of this Court in State of M.P. v.
Chintaman Sadashiva Vaishampayan, AIR1961 SC 1623, held that the rules of natural justice, require that a party must be given theopportunity 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 Indiav.T.R. Varma, AIR 1957 SC 882; Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719; M/s. Kesoram Cotton Mills Ltd. v. Gangadhar & Ors., AIR 1964 SC 708; New India Assurance Company Ltd . v .Nusli Neville Wadia and Anr., AIR 2008 SC 876; Rachpal Singh & Ors. v. Gurmit Singh & Ors., AIR 2009 SC 2448; Biecco Lawrie & Anr. v. State of West Bengal & Anr., AIR 2010 SC 142; and State of Uttar Pradesh v. Saroj Kumar Sinha, AIR 2010 SC 3131).
4. The respondents 1, 3 to 5 filed counter affidavit and vacate stay petition.
4(a). The learned Senior Counsel appearing for the respondents 1, 3 to 5 denied the averments made by the petitioner in the affidavit and contended that the 2nd respondent was doing Ph.D under the guidance 17/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 of the petitioner submitted a written complaint to the 1st respondent on 06.12.2018 alleging sexual harassment against the petitioner. An explanation was sought for by the 1st respondent from the petitioner and the petitioner submitted a reply to the complaint of the 2nd respondent. The 1st respondent referred the complaint to the 4th respondent Committee. The 4th respondent Committee is a permanent Committee constituted as per the provisions of the Act and UGC Regulations. As per Section 4(2)(a), the Presiding Officer must be a senior women employee. Dr.V.S.Vasantha, Chairperson of the 4th respondent is senior most women employee in the University. She is also a senior most Professor and senior to the petitioner. Dr.V.S.Vasnatha was promoted as Professor on 21.10.2013 and petitioner was promoted as Professor on 26.04.2016. As per Section 4(2)(b) of the Act, not less than two members amongst the employees, preferably have committed to the cause of women or would have experience in social work or legal knowledge. The said condition is not mandatory. In any event, Dr.P.Jeyabharathy, Associate Professor in the Department of Youth Welfare Studies and Dr.S.Pushparaj, Associate Professor in the Department of Econometrics and also a Director of Adult Studies in the University are having legal knowledge. As regards, the contention of the petitioner that Head of the Institution shall not be a member of Committee is concerned, the different branches of Schools in the 18/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 University is headed by Chairperson. Each School have 2 to 4 departments. Each department is headed by a Head of the Department under the control of the Chairperson. None of the members of the Committee is Chairperson. When a complaint is made by a student, the Committee must consist of 3 students as its members. The 2 nd respondent is an aggrieved women as per Section 2(a)(i) of the Act. The 2nd respondent has made the following allegations against the petitioner:
“(i) Non-Allocation of sitting place for the first six months even after continuous insistence. Later, she was allocated a chair direct opposite to the research supervisor, Dr.K.Karnamaharajan, though Ms.Muthu expressed her uncomfortable state, she was made to sit in the same way.
(ii) Threat of cancellation of Ph.D of Ms.Muthu.
(iii) She has given sum of two lakhs as bribe to Dr.K.Karnamaharajan for her Ph.D registration process as demanded by her guide Dr.K.Karnamaharajan.
(iv) Seeking of sexual favours.
(v) Unauthorised academic assignments to the complainant, including handling of entire three papers in different semesters, question settings and evaluation of internal test. 19/49
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(vi) Physically touched her hands in the name of palmistry.
(vii) Frequently calling her to accompany him in the car and to use his car.
(viii) Unwelcome invites for dinner frequently.
(ix) Personal comments praising her physical appearance like praising her nose ring and fair complexion.
(x) Offering gifts to the complainant.” 4(b). Except Item No.(iii), all other allegations are sexual harassment as defined under Section 2(n) of the Act. The complaint was given by an aggrieved women in writing alleging sexual harassment and complaint was made within 3 months from the date of occurrence. The said complaint was referred to the 4th respondent Committee. According to the learned Senior Counsel appearing for the respondents 1, 3 to 5, the Committee was constituted as per Section 4(2)(a) and 4(2)(b) of the Act. The said Committee is as existing Committee of the University constituted in accordance with Section 4 of the Act and as per UGC Regulations, 2015. The petitioner never disputed the constitution of the Committee. On the other hand, he has fully participated in the enquiry without any demur. The 4th respondent followed the procedures contemplated under Section 11 of the Act and Rule 7 of The Sexual 20/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The petitioner was given full opportunity by the 4th respondent Committee and on the basis of the explanation submitted by the petitioner, enquiry was conducted on 12.12.2018, 13.12.2018, 21.12.2018 and on 11.01.2019. On 11.01.2019, the 4th respondent furnished key findings to the petitioner and 2nd respondent so as to provide another opportunity of hearing and adjourned the hearing to 21.01.2019. On 21.01.2019, the enquiry was concluded. The 4th respondent, as per Section 13 of the Act, submitted report to the 1st respondent. A copy of the report dated 06.03.2019 was furnished to the petitioner along with show cause notice issued by the 3rd respondent. The Committee, as per Section 13(3)(i), has to recommend to the 1 st respondent to take action for sexual harassment as misconduct in accordance with provisions of Service Rules of the University. Therefore, the recommendation made by the 4th respondent Committee is in accordance with provisions of the Act. The learned Senior Counsel appearing for the 1st respondent relied on para.Nos.44.1 and 45 of the judgment of the Hon'ble Apex Court reported in 2013 (1) SCC 297 [Medha Kotwal Lele and others v. Union of India and others], wherein it has been held that the report of the Internal Committee shall be deemed to be an enquiry report and the Rules and Disciplinary Authority will act upon the report in accordance with Rules. 21/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 4(c).The respondents have followed the principles of natural justice and 4th respondent conducted the enquiry on various dates giving full opportunity to the petitioner. The petitioner did not seek for cross examination of the 2nd respondent as well as witnesses examined by the Committee. The petitioner wanted the Committee to hear the Compact Disc containing two audio files, but petitioner could not play the said Compact Disc. He wanted time to bring the pen drive to prove his innocene. The 4th respondent granted time and pen drive brought by the petitioner contained only one audio file which was already produced by the 2nd respondent. The Committee considering the materials and evidence produced had concluded that the petitioner had sexually harassed the 2nd respondent and submitted its report dated 03.02.2019. The report was placed before the 3rd respondent on 05.02.2019 and 3rd respondent issued a show cause notice dated 13.06.2019 seeking upon the petitioner to submit his explanation within 15 days. The petitioner did not submit his explanation, but issued notice through his counsel calling upon the 3rd respondent to withdraw the show cause notice. On the same date, the petitioner sought for further time to submit his explanation. The petitioner without submitting his explanation to the show cause notice filed W.P.(MD).No.14845 of 2019 before this Court and this Court on 03.07.2019 ordered only notice and has not granted 22/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 any interim order. The 3rd respondent considered the issue in detail and resolved on 22.08.2019 imposing punishment of compulsory retirement and on the same day, the 1st respondent communicated the said order to the petitioner. The petitioner handed over the charge to the next senior faculty Dr.V.Ilamparithi, Assistant Professor, Centre for Film and Electronic Media Studies. There is no provision under the Act to constitute for Appellate Committee. The sanction of Chancellor has to be obtained only after imposing of punishment. After imposing the punishment dated 22.08.2019, the same was forwarded to the Governor/Chancellor on the same day by the letter dated 22.08.2019 bearing Reference No.MKU/R/CRS/2019 and the same is pending. Without waiting for the orders of the Chancellor, the petitioner rushed to this Court by filing Writ Petition, which is not maintainable. The petitioner has sexually harassed the 2nd respondent and the said allegation by the 2nd respondent was proved in the enquiry conducted by the 4th respondent Committee. The 3rd respondent considering the gravity of charges and continuation of petitioner in service would put highly detrimental to the interest of the students and gravely dangers to the Scholars in the University, imposed punishment of compulsory retirement for the proven charges, which is in the interest of institution and prayed for dismissal of the Writ Petition.
23/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 4(d). The learned Senior Counsel for the respondents 1, 3 to 5, in support of his contention , relied on the following judgments -
(i) 2013 (1) SCC 297 (Medha Kotwal Lele and others v. Union of India and others)
6. In one of these matters, Medha Kotwal Lele, this Court has passed certain orders from time to time. Notices were issued to all the State Governments. The States have filed their responses. On 26.4.2004, after hearing the learned Attorney General and learned counsel for the States, this Court directed as follows :
Complaints Committee as envisaged by the Supreme Court in its judgment in Vishakas case will be deemed to be an inquiry authority for the purposes of Central Civil Services (Conduct) Rules, 1964 (hereinafter called CCS Rules) and the report of the complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the rules. This Court further directed in the order dated 26.4.2004 that similar amendment shall be carried out in the Industrial Employment (Standing Orders) Rules. As regards educational institutions and other establishments, the Court observed that further directions would be issued subsequently.
44.1 The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules (By whatever name these Rules are called) shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Services Conduct Rules. In other words, the disciplinary authority shall treat the report/findings etc. of the Complaints Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent.
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45. We are of the view that if there is any non-compliance or non- adherence to the Vishaka guidelines, orders of this Court following Vishaka and the above directions, it will be open to the aggrieved persons to approach the respective High Courts. The High Court of such State would be in a better position to effectively consider the grievances raised in that regard.
(ii) 2 0 0 5 ( 3) S C C 2 4 1 [C h ol a n Ro ad w ay s Ltd. v.
V. G . T hir u g n a n a s a m b a n d a m]
15. It is now a well-settled principle of law that the principle of Evidence Act have no application in a domestic enquiry.
16. In Maharastra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and Others [(1991) 2 SCC 716], it was held:
37. "It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish.The standard of proof is not proof beyond reasonable doubt but the preponderance of probabilities tending to draw an inference that the fact must be more probable.
Standard of proof, however, cannot be put in a strait- jacket formula. No mathematical formula could be 25/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquires."
17. There cannot, however, be any doubt whatsoever that the principle of natural justice are required to be complied with in a domestic enquiry. It is, however, well-known that the said principle cannot be stretched too far nor can be applied in a vacuum.
18. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. vs R.N. Banerjee while exercising jurisdiction under Section 33(2(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regard the validity or otherwise of the domestic enquiry held against the delinquent; keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn's case (supra) this court stated: "A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. vs The Workers of the Company (1952) Lab. AC 490(F)." It is further trite that the standard of proof required in a domestic enquiry vis-`-vis a criminal trial is absolutely different. Whereas in the former 'preponderance of probability' would suffice; in the latter, 'proof beyond all reasonable doubt' is imperative.
5. The 2nd respondent filed counter affidavit, containing the similar averments made by the respondents 1,3 to 5 in the counter affidavit. 26/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 5(a). The learned counsel appearing for the 2nd respondent contended that the petitioner by various ways sexually harassed the 2nd respondent and threatened to cancel her Ph.D. Due to the same, the 2nd respondent was put to great shock, mental agony and was taken to hospital. Dr.Kala Solomon attended her and submitted the report. The 2nd respondent gave a complaint on 06.12.2018 to the 1st respondent on sexual harassment by the petitioner. In order to get over the said complaint, the petitioner has issued the letter to the 2nd respondent anti-dated as 04.12.2018 seeking her explanation for her absence on 02.11.2018. The said notice was issued after one month of alleged occurrence. The 2nd respondent has given a complaint in order to get rid of her mental agony and with an intention that such sexual harassment should never happen to any other Scholars in the University. After receipt of explanation from the petitioner, the 4th respondent conducted an enquiry. The complaint given by the 2nd respondent is valid as per Section 9 of the Act. The Committee validly constituted had conducted the enquiry in a fair and proper manner following the principles of natural justice giving full opportunity to the petitioner to put forth his case. In the enquiry, sexual harassment made by the petitioner to the 2nd respondent is proved and for the proven charges, the punishment of compulsory retirement was imposed on the petitioner after following the procedure and prayed for dismissal of the Writ Petition. 27/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019
6. The petitioner filed reply to the counter affidavit filed by the respondents 1, 3 to 5. The respondents have filed rejoinder to the reply and the petitioner filed additional rejoinder.
6(a). In the reply affidavit and rejoinder, the petitioner and respondents reiterated their respective stands referred to above.
7. Heard the learned Senior Counsel appearing for the petitioner as well as respondents 1, 3 to 5 and the learned counsel appearing for the 2nd respondent and perused the entire materials on record.
8. From the affidavit, counter affidavit, additional affidavit, reply rejoinder and additional rejoinder and arguments of the learned Senior Counsel appearing for the petitioner as well as the learned Senior Counsel appearing for the respondents 1, 3 to 5 and the learned counsel appearing for the 2nd respondent, it is seen that most of the contentions raised by the learned Senior Counsel relates to violation of procedures. The contention of the learned Senior Counsel for the petitioner on merits is that the 4th respondent Committee after having obtained opinion from the expert, has not acted upon it and in fact suppressed the said opinion and has given a finding that petitioner has committed 28/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 sexual harassment to the 2nd respondent. I proceed to deal with the said contentions one by one.
9. Constitution of the Committee:
The contention of the learned Senior Counsel appearing for the petitioner is that the 4th respondent Committee was constituted in violation of UGC norms and Section 4(2)(a) and 4(2)(b) of the Act. According to the learned Senior Counsel for the petitioner, the Chairperson must be a senior to the petitioner but she is of same cadre and therefore appointment of Dr.V.S.Vasantha as Chairperson is in violation of Section 4(2)(a) of the Act. For better appreciation, Section 4(2)(a) is extracted below :
Section 4(2)(a) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:
“(a) a Presiding Officer who shall be a women employed at a senior level at workplace from amongst the employees:
Provided that in case a senior level women employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section (1):29/49
http://www.judis.nic.in W.P.(MD).No.19440 of 2019 Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation;” 9(a). As per the above said Section, the Chairperson must be a women employed at a senior level at work place from amongst the employees. The Section does not contemplate that Chairperson must be senior to the person against whom the allegation of sexual harassment is made. It contemplates only senior level women employee of the institution. According to learned Senior Counsel for the respondents 1, 3 to 5, Dr.V.S.Vasantha, Chairperson appointed is senior most women employee and senior most Professor than the petitioner. According to learned Senior Counsel appearing for the respondents 1, 3 to 5 Dr.V.S.Vasantha was promoted as Professor on 21.10.2013 while the petitioner was promoted as Professor on 26.04.2016. This shows that Dr.V.S.Vasantha was employed at the senior level and senior to the petitioner.
9(b). The second contention of the learned Senior Counsel appearing for the petitioner with regard to constitution of the 4th respondent Committee is that as per Section 4(2)(b) of the Act, two 30/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 members must be committed to cause of women and have experience in Social work or have legal knowledge. None of the Committee members possess such a qualification. On the other hand, it is the contention of the learned Senior Counsel appearing for the respondents 1, 3 to 5 that Section 4(2)(b) contemplates that two members, preferably may have qualification as mentioned in the said Section and it is not a mandatory provision. At the same time, the learned Senior Counsel appearing for the respondents 1, 3 to 5 contended that Dr.P.Jeyabharathy, Associate Professor in the Department of Youth Welfare Studies is having experience in Social works and Dr.S.Pushparaj, Associate Professor in the Department of Econometrics and also a Director of Adult Studies in the University is having legal knowledge.
9(c). In view of the same, I hold that there is no violation of Sections 4(2)(a) and 4(2)(b) of the Act in constitution of the 4th respondent Committee.
10. The complaint of sexual harassment by the 2nd respondent against the petitioner:
The 2nd respondent by letter dated 06.12.2018 addressed to the 1st respondent has stated that petitioner has been abusing her for the past one year. She has not mentioned any specific incident of sexual 31/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 harassment against the petitioner. The 2nd respondent has not mentioned any date on which the petitioner has sexually harassed her. In the separate counter affidavits filed by the respondents 1, 3 to 5 as well as the 2nd respondent, 10 incidents of alleged sexual harassment has been mentioned. The allegation mentioned in Item (iii) and (v) do not amount to any sexual harassment. Even in the counter affidavit, the respondents have not mentioned the dates of which the petitioner has made this sexual harassment to the 2nd respondent. The 2nd respondent has stated that petitioner has made sexual harassment for the past one year from the date of her application for research study. She has not mentioned the date of her application and date of last sexual harassment. Before the Committee also, the 2nd respondent has not furnished any dates of which the petitioner sexually harassed her. From the report of the 4th respondent Committee dated 06.03.2019, it is seen that the Committee had concluded from that conversation in the audio submitted by the 2nd respondent, the conversation between the petitioner and the 2nd respondent have taken place in last week of October. The Committee has come to the said conclusion on assumption and surmises. Admittedly there is no date in the audio tape submitted by the 2nd respondent and conclusion of the Committee with regard to the date of such conversation is erroneous.
32/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 10(a). The Committee has sent the audio tape to Mr.Anil Kulangara, Professor in Malayalam University, Tirur, for his opinion. The said professor after hearing the audio tape has given opinion among other things that the 2nd respondent is particular in doing Ph.D with the petitioner and has great respect for him as an academician and concluded that he could not identify any element of misconduct by the petitioner. The Committee having sought for an opinion from an expert with regard to audio tape produced by the 2nd respondent to substantiate her allegation of sexual harassment by the petitioner, failed to take into account the opinion of expert and on the other hand they have not mentioned anything about the opinion of the expert in their report. The learned Senior Counsel appearing for the respondents 1, 3 to 5 contended that opinion was not sought for by the Chairperson of the Committee and Dr.Vasantha Pandian mentioned in the E-mail dated 27.01.2019 and 03.02.2019 is not Dr.V.S.Vasantha, Chairperson of the 4th respondent Committee. On the other hand, the learned Senior Counsel appearing for the petitioner contended that as per website of the 1st respondent University, Dr.Vasantha Pandian has two E-mail Ids, in the names of Dr.Vasantha as well as Dr.Vasantha Pandian. Both Dr.Vasantha and Dr.Vasantha Pandian are one and the same person. The said contention of the learned Senior Counsel for the petitioner is not denied by the respondents. Considering the above materials, I hold that 33/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 only the Chairperson of 4th respondent Committee Dr.V.S.Vasantha sought for an expert opinion and has not taken into account the opinion given by the expert, as the same is against the complaint given by the 2nd respondent.
10(b). Further as per Section 9(1) of the Act, the complaint must be given by aggrieved women in writing to the Internal Committee about the sexual harassment at work place within 3 months from the alleged incident or from the date of last incident, if the sexual harassment was a continuous one. In the present case, the 2 nd respondent has not given the complaint to the Internal Committee. It is the case of the learned Senior Counsel appearing for the respondents 1, 3 to 5 that the 4th respondent Committee is a permanent Committee constituted as per the Act and UGC Regulations, 2015. When the 4th respondent Committee was in existence on 06.12.2018 when the 2nd respondent made a complaint to the 1st respondent, there is no reason given by the 2nd respondent for not making a complaint to the 4th respondent Committee. It is an admitted fact by the respondents that complaint was given to the 1st respondent. The 1st respondent, after obtaining explanation from the petitioner, referred the complaint to the 4th respondent Committee for enquiry. As per the Rule 7(1) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and 34/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 Redressal) Act, 2013, aggrieved women must give 6 copies of the complaint along with supporting documents with names and address of the witnesses. In the present case, the 2nd respondent has not complied with Rule 7(1) of the Act when filed the complaint to the 1 st respondent. Further she has not submitted supporting documents and names and addresses of the witnesses. From the report of the 4th respondent dated 06.03.2019 it is seen, only during the enquiry, the 4 th respondent called upon the 2nd respondent to produce the documents to substantiate her case. This procedure adopted by the 4th respondent is contrary to Section 9(1) as well as Rule 7(1) of the Act. The relevant Section 9(1) as well as Rule 7(1) of the Act are extracted below for better appreciation:
Section 9(1) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:
“(1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:35/49
http://www.judis.nic.in W.P.(MD).No.19440 of 2019 Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:
Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.” Rule 7(1) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:
“7.Manner of inquiry into complaint – (1) Subject to the provisions of Section 11, at the time of filing the complaint, the complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witnesses.” 36/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 10(c). Further, there is nothing on record to show that the 2nd respondent has made a complaint within three months from the alleged sexual harassment or within three months from the last date of sexual harassment. The Committee, without any basis, on presumption held that the conversation recorded in the audio tape, wherein the petitioner has allegedly sought sexual favour is recorded in last week of October, 2018.
10(d). For the above reason, I hold that the complaint dated 06.12.2018 given by the 2nd respondent to the 1st respondent is contrary to the provisions of Act and Rules.
11. Violation of principles of natural justice and Statutes of 1st respondent with regard to Service Rules:
From the report of the 4th respondent Committee, it is seen that all the witnesses were examined separately and they were not examined in the presence of the petitioner. The learned Senior Counsel appearing for the petitioner contended that examination of witnesses behind the back of the petitioner is in violation of principles of natural justice and that the petitioner was not given any opportunity to cross examine the witnesses. The learned Senior Counsel appearing for the respondents 1, 3 to 5 contended that the petitioner did not seek for cross examination 37/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 of witnesses and it is not open to the learned Senior Counsel for the petitioner to contend that petitioner was not given opportunity to cross examine the witnesses. The contention of the learned Senior Counsel for the respondents 1, 3 to 5 is contrary to the two judgments of the Hon'ble Apex Court relied on by the learned Senior Counsel for the petitioner reported in 2016 (12) SCC 204 and 2013 (4) SCC 465, cited supra.
11(a). In the above referred judgments, the Hon'ble Apex Court has held that witnesses must be examined in the presence of the delinquent employee and he must be given an opportunity to cross examine the witnesses.
11(b). Admittedly, the petitioner, the 2nd respondent and all other witnesses were examined separately. The 2nd respondent and other witnesses were not examined in the presence of petitioner and he was not given any opportunity to cross examine the witnesses. There is nothing on record to show that deposition of witnesses were furnished to the petitioner. The contention of the learned Senior Counsel appearing for the respondents 1, 3 to 5 that in the domestic enquiry, the principles of Evidence Act can have no application and strict proof of evidence as required in the Criminal case is not required. The learned 38/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 Senior Counsel appearing for the respondents 1, 3 to 5 relied paragraph Nos.15 to 17 on the judgment of the Hon'ble Apex Court reported in 2005 3 SCC 241, cited supra. In the said judgment, in paragraph No. 17, the Hon'ble Apex Court has held that principles of natural justice are required to be complied with in the domestic enquiry, but the same cannot be stretched too far nor can be applied in vacuum. In the present case, the 4th respondent Committee has not followed the principles of natural justice by giving an opportunity to the petitioner to know the evidence of witnesses and also an opportunity to the petitioner to cross examine the witnesses. The evidence required to give a finding of guilt in the domestic enquiry is different from the evidence required in Criminal case. This principles does not empower an employee to deny the opportunity to cross examine or examine the witnesses behind the back of the delinquent employee.
11(c). As per Section 13(1) of the Act, the Committee, within 10 days of the completion of the enquiry, must furnish the report on complaint to the employer and also to the parties concerned. In the present case, the 4th respondent Committee concluded the enquiry and has given the report on 03.02.2019, finding the petitioner guilty of sexual harassment charge levelled against the petitioner. The 4th respondent Committee did not furnish a copy of the report to the 39/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 petitioner but submitted the same to the 3rd respondent on 05.02.2019. Admittedly, the report of the Committee was furnished to the petitioner long after the report dated 03.02.2019 and violated Section 13(1) of the Act. In this regard, the judgment of the Hon'ble Apex Court AIR 2015 SC 2764, cited supra, relied on by the learned Senior Counsel for the petitioner is squarely applicable to the facts of the present case, wherein the Hon'ble Apex Court has held that when the Statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way.
11(d) In addition to the above judgment, in the following judgments also, it has been held that the procedures, as contemplated under Statute has to be followed and not in any other way.
(i) AIR 1975 SC 915 [Ramachandra v. Govind]
25. A century ago, in Taylor v. Taylor(1), Jassel M. R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor(2) and later by this Court in several cases(3), to a Magistrate making a record under ss. 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where, indeed, the whole aim and object of the legislature would be plainly defeated if the command 40/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 to do the thing in a particular manner did not imply a prohibition to do it in any other.(4)" The rule will be attracted with full force in the present case because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non-est for the purpose of s. 5(3) (b).
(ii) 1999 (3) SCC 422 [Babu Verghese and others v.
Bar Council of Kerala and others]
31.It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor vs. Taylor (1875) 1 Ch.D 426 which was followed by Lord Roche in Nazir Ahmad vs. King Emperor 63 Indian Appeals 372 = AIR 1936 PC 253 who stated as under :
"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh & Anr. vs. State of Vindhya Pradesh 1954 SCR 1098 = AIR 1954 SC 322 and again in Deep Chand vs. State of Rajasthan 1962(1) SCR 662 = AIR 1961 SC 1527. These cases were considered by a Three-Judge Bench of this Court in State of Uttar Pradesh vs. Singhara Singh & Ors. AIR 1964 SC 358 = (1964) 1 SCWR 41/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 57 and the rule laid down in Nazir Ahmad's case (supra) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law.
39. In the instant case, it was the question of jurisdiction to hold elections which was agitated in the Writ Petition. Fresh elections could have been held by the Kerala Bar Council only before the expiry of its term. Otherwise, the jurisdiction to hold elections passes on to the Special Committee appointed by the BCI in terms of the provisions contained in Section 8A which are imperative in character. Since the Kerala Bar Council had ceased to have any jurisdiction on the expiry of its term and the so-called extension of its term has been held by us to be wholly illegal, the elections held by the Kerala Bar Council were farcical in character and on that basis the respondents cannot claim themselves to be the duly elected members of the Council.
(iii) 2005 (1) CTC 223 [State of Jharkhand and others v. Ambay Cements and another]
27. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way............................... 42/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 11(e) In the present case, the 4th respondent Committee without furnishing its report within the time limit provided in Section 13(1) of the Act, has taken a stand that the report can be furnished only after consideration by the 3rd respondent. Such a stand is contrary to the Act and amounts to violation of Section 13(1) of the Act. Further, from the materials, it is seen that 4th respondent Committee has not followed the procedures contemplated in Section 9 of the Act as well as Rule 7 of the Rules. In view of the above violation, the report of the 4 th respondent and subsequent order imposing punishment are invalid.
12. Approval by Chancellor:
The learned Senior Counsel appearing for the petitioner contended that any order in service matter can be issued only after approval by the Chancellor of University. Any order issued without approval of Chancellor is invalid and illegal. The learned Senior Counsel appearing for the respondents 1, 3 to 5 in counter affidavit admitted that approval of Chancellor is necessary and order imposing punishment was submitted for the approval of the Chancellor on the same day by proceedings bearing No.MKU/R/CRS/2019. According to the learned Senior Counsel for the respondents 1, 3 to 5, the same is pending and before the Chancellor can considering the same, the petitioner has filed the present Writ Petition. The respondents 1, 3 to 5 filed counter affidavit dated 43/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 17.09.2019 and filed into Court on 19.09.2019. In the counter affidavit, the respondents 1, 3 to 5 have not stated whether the Chancellor has approved the impugned order or not. At the same time, it is seen from Paragraph No.60 of the counter affidavit that the 1st respondent has given effect to the impugned order and the petitioner handed over the charge to the next senior Dr.V.Ilamparithi, Assistant Professor, Centre for Film and Electronic Media Studies. From the averments in paragraph No.60 of the counter affidavit, it is clear that the 1st respondent has given effect to the impugned order without approval of the Chancellor and the same is invalid and illegal.
13. Whether the report of the 4th respondent Committee amounts to report in domestic enquiry:
Section 13 of the Act deals with procedure to be allowed after conclusion of the enquiry by the 4th respondent Committee when the report is that sexual harassment allegation has been proved. When the Committee found the petitioner guilty of sexual harassment, the report must be forwarded to the employer with a recommendation to take action for sexual harassment in accordance with provisions of Service Rules. The contention of the learned Senior Counsel for the petitioner is that the 1st respondent did not follow the Service Rules and Statute of 1st respondent before imposing the impugned order and therefore the 44/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 impugned order is invalid and illegal. On the other hand, it is the contention of the learned Senior Counsel for the respondents 1, 3 to 5 that the report of the 4th respondent Committee amounts to report in domestic enquiry and there is no necessity to conduct domestic enquiry based on the report of the 4th respondent Committee. The learned Senior Counsel appearing for the respondents 1, 3 to 5 relied on para.No.6, 44.1 and 45 of the judgment of the Hon'ble Apex Court reported in 2013 1 SCC 297, cited supra. The contention of the learned Senior Counsel for the respondents 1, 3 to 5 is not acceptable and the judgment relied on does not advance the case of the respondents. In para.No.6 of the judgment of the Hon'ble Apex Court referred to earlier judgment wherein it has been held that the Complaints Committee envisaged by the Hon'ble Apex Court in Visaka case, will be deemed to be Enquiring Authority, for the purpose of Central Civil Services Conduct Rules (by whatever name these Rules are called) and the report of the Compliants Committee shall be deemed to be an enquiry report in a disciplinary action under such Civil Services Conduct Rules. The Hon'ble Apex Court by the order dated 26.04.2004 issued directions that similar amendments shall be carried out in the Industrial Employment [Standing Order Rules]. In the very same paragraph, it has been mentioned that as regards Educational Institutions and other establishments, further direction can be issued subsequently. Nothing is 45/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019 produced by the learned Senior Counsel appearing for the petitioner to show that the Hon'ble Apex Court has issued a direction for amendment of Service Rules relating to Educational Institution and other establishments.
13(a). It is not the case of the learned Senior Counsel for the respondents 1, 3 to 5 that Statute of 1st respondent was amended so as to make a report of the Internal Committee as report of the domestic enquiry and that Disciplinary Authority will act upon the same without any domestic enquiry. It is further to be noted that provisions of Section 13(3) of the Act was not amended either to delete Section 13(3)(i) of the Act. So long as Section 13 (3)(i) is in force and the Statute of the 1st respondent relating to Service conditions of its employees are not amended, it is not open to the 1st respondent to contend that there is no necessity to conduct domestic enquiry based on the report of the Internal Committee.
13(b). The 2nd respondent has made 10 allegations of sexual harassment of petitioner including 4 allegations as below:
(i) Dr.K.Karnamaharajan was assigned academic work not approved by the Madurai Kamaraj University.46/49
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(ii) Dr.K.Karnamaharajan was offering a lift in his car to her home at Kerala.
(3) Dr.K.Karnamaharajan was touching her fingures in the pretext of palmistry reading.
(4) Dr.K.Karnamaharajan was praising her physical appearance.
13(c). The Committee, considering the evidence let in and materials filed by the 2nd respondent has held that findings on the above 4 complaints are “inconclusive”. The 4th respondent has said that the complaints made by the 2nd respondent may be accepted partially. The 4th respondent Committee has not stated which are the allegations accepted by the Committee. The statement of the Committee after referring to 4 allegations and giving a finding that these complaints are “inconclusive” means that the 2nd respondent has not proved these allegations. The respondents 1, 3 to 5 themselves have stated that item No.iii of the allegation mentioned in the counter affidavit does not amount to sexual harassment. From the materials on record, it is seen that in Item No.(iii) of the complaints, above 4 allegations which are not proved as per the findings of the 4th respondent Committee amounts to 50% of the allegations made against the petitioner were not proved. 47/49 http://www.judis.nic.in W.P.(MD).No.19440 of 2019
14. Considering the entire materials on record, it is clear that respondents have failed to prove the allegations of sexual harassment made by the 2nd respondent against the petitioner in the manner known to law.
15. For the above reason, the impugned order bearing Ref.No.MKU/SO/ICC/CRS/2019 dated 22.08.2019 passed by the 1st respondent imposing compulsory retirement is quashed and the 1st respondent is directed to reinstate the petitioner as Professor within a period of four weeks from the date of receipt of a copy of this order.
16. In the result, the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.
24.01.2020
krk/rgr
Index : Yes
Internet : Yes
48/49
http://www.judis.nic.in
W.P.(MD).No.19440 of 2019
V.M.VELUMANI, J.
krk/rgr
To
1.The Registrar,
Madurai Kamaraj University,
Palkalai Nagar,
Madurai – 625 021.
2.The Syndicate Committee,
Madurai Kamaraj University,
Palkalai Nagar,
Madurai – 625 021.
3.The Convenor,
Internal Complaints Committee,
Madurai Kamaraj University,
Palkalai Nagar,
Madurai – 625 021.
4.The Vice Chancellor,
Madurai Kamaraj University,
Madurai – 625 021.
Order in
W.P.(MD).No.19440 of 2019
24.01.2020
49/49
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