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Calcutta High Court (Appellete Side)

Prof. Dr. Saswat Samay Das vs Indian Institute Of Technology & Ors on 19 May, 2016

Author: Sanjib Banerjee

Bench: Sanjib Banerjee

                                               1


2016            W.P. 9261 (W) of 2016

           Prof. Dr. Saswat Samay Das
                     Vs.
       Indian Institute of Technology & Ors.


       Mr. Kishore Dutta,
       Mr. Amit Kumar Pan,
       Mr. B.P. Tripathi,
       Ms. Tanusri Santra
                     ... for the Petitioner.
       Mr. Soumya Majumder,
       Mr. Arindam Guha,
       Ms. Srfeya Basu Mullick
                    ... for the Respondent Nos. 1,2 & 4.

The unfortunate aspect of the matter is that the private respondent complainant is not represented, though she has been served. Ideally, the complainant ought to have been heard before this order was made. The petitioner complains of the illegal manner in which the internal committee set up at the Indian Institute of Technology, Kharagpur has dealt with a complaint of sexual harassment and made its recommendations to the Institute. The petitioner also challenges a charge-sheet issued on February 18, 2016 and an order of suspension of the same date. A copy of the recommendations of the internal committee was forwarded to the petitioner along with the charge-sheet, though such recommendations appear to have been received by the Institute on November 2, 2015.

The petitioner refers to Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the period of three months prescribed thereunder for the receipt of a complaint. The petitioner 2 says that the second proviso to Section 9(1) of the Act permits a grace period of three more months from the date of the latest incident, subject to satisfactory circumstances for the delay being cited; but points to the words "extend the time limit not exceeding three months" and its implication that the authority in receipt of the complaint would not be empowered to entertain the same if it is carried more than six months after the latest incident complained of. According to the petitioner, the complaint is vague, it does not refer to any specific incident and, at any rate, does not speak of any actionable incident within three months of its institution.

The petitioner relies on Rule 7 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the ten working days' time afforded thereunder for a respondent to file his reply to a complaint. The petitioner claims that an inquiry into the complaint was begun under Section 11 of the Act within three days of the receipt of the complaint by the internal committee and without the petitioner being afforded any opportunity to file his reply to the complaint. Indeed, it is the petitioner's allegation that the petitioner was not favoured with a copy of the complaint till the inquiry had progressed substantially.

Following the inquiry, a set of recommendations was forwarded to the Institute by the internal committee on November 2, 2015 and the Institute has taken action in accordance with the recommendations by initiating a disciplinary action against the petitioner by the issuance of the charge-sheet on February 18, 2016.

The petitioner says that by the middle of March, 2016 the petitioner forwarded an appeal under Section 18 of the Act to the Institute and the petitioner reasonably believed that the petitioner would be notified of the date of hearing in the appeal in due course. The petitioner claims to have only recently discovered that no appellate body has been set up by the Institute. The Institute does not deny that an appellate body has not been set up by it to receive appeals under Section 18 of the Act.

There is no dispute, either, that the copy of the complaint filed by the complainant was not made available to the petitioner prior to the inquiry into the same being commenced by the internal committee. Though the petitioner participated in the process and appears even to have led oral evidence, the petitioner may not have taken the objection in writing that the proceedings before the internal committee could no be continued without the petitioner's reply to the complaint being filed or the petitioner being afforded an opportunity to file his reply. It must also be appreciated that legal practitioners are excluded from the proceedings held before an internal committee and the petitioner may not have obtained legal advice at the time. The question is whether the colossal oversight of the petitioner not being afforded an opportunity to file his reply to the complaint has to be overlooked merely on the ground that no written objection in such regard may have been taken by the petitioner before the internal committee. There is no doubt that the petitioner should have insisted on his right to use a reply to the complaint and even if the petitioner made some noise in such regard before the internal committee, it should have been recorded in writing. 4 But the failure of the petitioner to record a written protest in such regard cannot be seen to be so grave that the petitioner is precluded from urging the ground in appeal or, in the absence of the appellate authority, in the present proceedings where the adjudication ought to be akin to an appeal since the appellate remedy under the statute is not available to the petitioner.

There is an element of informality in which complaints as to sexual harassment at the workplace are permitted to be dealt with, but such informality may not be to the extent that the procedure violates the fundamental canons of natural justice. Here was a complaint and an inquiry conducted on the complaint without there being a focus to the inquiry as, in the absence of any denial to the complaint, the issues on which the inquiry could be pegged or the evidence could be based were non-existent.

In a sense, the victim of the oversight or the irregularity is the complainant. Since it is evident that the petitioner was not afforded any opportunity to file a reply to the complaint against him, the entire proceedings before the inquiry committee has to be set at nought and the clock put back, so to say, to the Rule 7(3) stage with the petitioner being deemed to have received the complaint today. As a consequence, the recommendations made by the internal committee stand set aside. The evidence received in course of the inquiry is also set aside, subject to the right of the complainant, the petitioner herein and the employer to use the same only to the extent of any statement therein being contradicted in future by the same witness.

As a further consequence, the action taken on the basis of the recommendations stands quashed with liberty to the employer to take appropriate action on the basis of the recommendations that may be made by the internal committee on the conclusion of the proceedings under the said Act of 2013 hereafter. The charge-sheet dated February 18, 2016 is quashed without prejudice to the rights of the employer to issue another afresh at the appropriate stage. The order of suspension dated February 18, 2016 is also set aside as a consequence of the recommendations of the internal committee being annulled. It is distressing that an Institute as the IIT, Kharagpur has not set up an appellate forum to deal with appeals under Section 18 of the said Act of 2013. The Director of the Institute is requested to take all necessary steps so that any person aggrieved by the final outcome of the present complaint may exercise the right of appeal in accordance with law.

Nothing in this order will prevent the Institute from exercising its authority to suspend the petitioner in accordance with law. For a week from date, the petitioner will obtain leave and not rejoin his post.

WP 9261(W) of 2016 is disposed of as above without any order as to costs.

( Sanjib Banerjee, J.)