Kerala High Court
Abhilash T vs Anamika Prajin on 31 August, 2022
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Wednesday, the 31st day of August 2022 / 9th Bhadra, 1944
WA NO. 1115 OF 2022
AGAINST JUDGMENT DATED 13.06.2022 IN WP(C) 28149/2021 OF THIS COURT
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APPELLANT/6TH RESPONDENT:
ABHILASH T., AGED 39 YEARS, S/O.U.BALAKRISHNAN, ASSISTANT
PROFESSOR, POLITICAL SCIENCE, SREE NARAYANA COLLEGE, CHEMPAZHANTHY,
TRIVANDRUM - 695 587.
BY SENIOR ADVOCATE DR. K.P.SATHEESAN AND
ADVS.M/S. P.MOHANDAS (ERNAKULAM),K.SUDHINKUMAR, S.K.ADHITHYAN,
SABU PULLAN & GOKUL D. SUDHAKARAN
RESPONDENTS/PETITIONERS 1 TO 4 & RESPONDENTS 1 TO 5 & 7:
1. ANAMIKA PRAJIN, AGED 22 YEARS, D/O.PRAJIN BABU A., STUDENT B.A.
POLITICAL SCIENCE (2019-22), RESIDING AT TRAVANCORE THARAVAD, KRA
154A, THRIKKANAPURAM, ESTATE P.O., TRIVANDRUM - 695 019.
2. NOWFIA NAZEER, AGED 21 YEARS, D/O.NAZEER KHAN A, STUDENT B.A.
POLITICAL SCIENCE (2019-22),RESIDENT OF PUTHEN VILAYIL, NSS MM
JUNCTION, PANDALAM P.O., PATHANAMTHITTA - 689 501.
3. ADITHYA VIJAYAN, AGED 18 YEARS, D/O.K.VIJAYAKUMAR, STUDENT B.A.
POLITICAL SCIENCE (2020-23), RESIDENT OF KRISHNAVILASOM, KEEIKUZHY,
CHEMPAZHANTHY P.O., TRIVANDRUM - 695 587.
4. VINAYAK SANKAR A.,AGED 22 YEARS, S/O.AJITH KUMAR M., STUDENT B.A.
POLITICAL SCIENCE (2019-22), RESIDENT OF ANJANEYAM VETTICODE,
VATTAPARA P.O., TRIVANDRUM - 695 028.
5. UNIVERSITY GRANTS COMMISSION (UGC), REPRESENTED BY ITS SECRETARY,
BAHADUR SHA ZAFAR MARG, NEW DELHI - 110 002.
6. THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, SENATE
HOUSE, CAMPUS, PALAYAM, TRIVANDRUM - 695 034.
7. THE DIRECTOR OF COLLEGIATE EDUCATION, 6TH FLOOR, VIKAS BHAVAN,
TRIVANDRUM - 695 033.
8. THE PRINCIPAL, SREE NARAYANA COLLEGE, CHEMPAZHANTHY, TRIVANDRUM -
695 587.
9. THE INTERNAL COMPLAINTS COMMITTEE UNDER THE SEXUAL HARASSMENT OF
WOMEN AT WORK PLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT 2013
AT SREE NARAYANA COLLEGE, CHEMPAZHANTHY, TRIVANDRUM - 695 587,
REPRESENTED BY ITS PRESIDING OFFICER, MS.BEENAL LAKSHMI, ADVOCATE.
10. THE SREE NARAYANA COLLEGE, CHEMPAZHANTHY, TRIVANDRUM - 695 587,
REPRESENTED BY THE MANAGER.
BY ADV.SRI.S.KRISHNAMOORTHY FOR R5
STANDING COUNSEL SRI.THOMAS ABRAHAM FOR R6
SENIOR GOVERNMENT PLEADER SRI.V.TEKCHAND FOR R7
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay all further proceedings pursuant to the Judgment dated 13-06-2022
in W.P.(C) No.28149/2021 pending disposal of the Writ Appeal.
This Writ Appeal coming on for admission on 31/08/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
EXT.P4:TRUE COPY OF ICC REPORT DATED 19.10.2021.
EXT.P5:TRUE COPY OF SHOW CAUSE NOTICE NO.PL/1162/2021930
DATED 22.10.2021 ISSUED TO THE 1ST WRIT PETITIONER.
EXT.P5(A):TRUE COPY OF THE NOTICE NO.PL/1164/2021 (8)
DATED 22.10.2021 BARRING THE 1ST WRIT PETITIONER FROM
ENTERING THE COLLEGE.
EXT.P6:TRUE COPY OF THE SHOW CAUSE NOTICE NO.PL/1162/2021950
DATED 22.10.2021 ISSUED TO THE 2ND WRIT PETITIONER.
EXT.P6(A):TRUE COPY OF NOTICE NO.PL/1164/2021 (6)
DATED 22.10.2021 BARRING THE 2ND WRIT PETITIONER
FROM ENTERING THE COLLEGE.
EXT.P7:TRUE COPY OF THE SHOW CAUSE NOTICE NO.PL/1162/2021 (2)
DATED 22.10.2021 ISSUED TO THE 3RD WRIT PETITIONER.
EXT.P7(A):TRUE COPY OF THE NOTICE NO.PL/1164/2021 (9)
DATED 22.10.2021 BARRING THE 3RD WRIT PETITIONER FROM
ENTERING THE COLLEGE.
EXT.P8:TRUE COPY OF THE SHOW CAUSE NOTICE NO.PL/1162/2021940
DATED 22.10.2021 ISSUED TO THE 4TH WRIT PETITIONER.
EXT.P8(A):TRUE COPY OF THE SHOW CAUSE NOTICE NO.PL/1162/2021
(40 DATED 22.10.2021 ISSUED TO THE 4TH WRIT PETITIONER.
EXT.P9:TRUE COPY OF THE LETTER FROM THE 4TH RESPONDENT
NO.PL/843/2021 DATED 11.8.2021
ADDRESSED TO THE MANAGER,SRI NARAYANA COLLEGES, KOLLAM.
EXT.P10:TRUE COPY OF THE FIR DATED 2.11.2021
IN CRIME 1893/2011 REGISTERED BY THE PEROORKADA POLICE STATION,
EXT.P11:TRUE COPY OF THE STAY ORDER DATED 1.11.2021
IN WPC 23694/2021 OF THIS HON'BLE COURT.
ANNEXURE I:TRUE COPY OF THE PROCEEDINGS OF THE PRINCIPAL,
SREE NARAYANA COLLEGE, CHEMPAZHANTHY DATED 6-2-2020
ANNEXURE II: TRUE COPY OF THE MINUTES OF THE COLLEGE COUNCIL MEETING
DATED 31.8.2021.
ANNEXURE III: TRUE COPY OF THE INTIMATION ON DATE OF HEARING OF THE
NEWLY CONSTITUTED INTERNAL COMPLAINTS COMMITTEE DATED 4-9-2021.
S. MANIKUMAR, C. J. & SHAJI P. CHALY, J.
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W. A. No. 1115 of 2022
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Dated this the 31st day of August, 2022
ORDER
S. Manikumar, C. J.
Before the writ court, in W. P. (C) No. 28149 of 2021, petitioners / respondents 1 to 4 herein, have sought for the following reliefs:-
"i. Issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Exhibit P4 Internal Complaints Committee report and quash it as bad in law;
ii. Issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Exhibit P5 to P8(a) and quash them as bad in law;
iii. Issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents 1 to 4 to ensure that the writ petitioners are not harassed in any manner directly or indirectly for taking part in the Internal Complaints Committee proceedings."
2. Short facts leading to the filing of the writ petition are as hereunder:-
a) According to the writ petitioners, petitioners 1 to 3 are the W. A. No. 1115 of 2022 -2- victims and the 4th petitioner is a witness, who appeared for the victims before the Internal Complaints Committee (ICC) in the Sree Narayana College, Chempazhanthy, Trivandrum, the 7th respondent therein.
b) Petitioners have submitted that ICC was not constituted as per the mandatory requirements laid down in the Sexual Harassment of Women at the Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (the POSH Act for short). There were two Presiding Officers in the ICC, who are not working in the college, which is against the mandatory requirement of Section 4(1)2(a) of the POSH Act.
c) Petitioners have further submitted that Ext. P4 report dated 19.10.2021 submitted by the illegally constituted ICC concluded that Mr. Abhilash T., Assistant Professor, Sree Narayana College, Trivandrum, the 6th respondent / the appellant, was not at fault. The ICC report illegally cited Section 11 of the POSH Act to recommend action against the victims, including the writ petitioners.
d) It is also submitted that the Principal, Sree Narayana College, Trivandrum, the 4th respondent therein, by Ext. P9 dated 11.08.2021, W. A. No. 1115 of 2022 -3- concluded that there was no sexual harassment, even before the ICC commenced actual proceedings. After Ext. P4 report of the ICC dated 19.10.2021, the 4th respondent Principal has now issued Exts. P5 to P8(a) show cause notices, proposing action, and notices barring entry of the writ petitioners to the college. The process that is envisaged to protect sexual harassment victims has now been turned upside down and made into a punishment by the acts of the Principal and the ICC.
e) That apart it is submitted that Ext. P10 FIR registered against Mr. Abhilash T., the 6th respondent, as directed by the jurisdictional Magistrate Court, as well as Ext. P11 stay order of Ext. P4 ICC report dated 19.10.2021 by this Court in W. P. (C) No. 23694 of 2021 dated 01.11.2021, expose the hollowness of the ICC proceedings and Ext P4 report of ICC.
3. Before the writ court, appellant herein has filed W. P. (C) No. 5450 of 2022, challenging Ext.P5 therein, which is the proceedings of Deputy Director of Collegiate Education, finding the appellant guilty of the complaints of sexual harassment, contending that the same is untenable, forensically incompetent and impermissible, because the W. A. No. 1115 of 2022 -4- ICC had already exonerated him on 19.10.2021.
4. As other writ petitions were also filed in connection with the disciplinary action taken against two Assistant Professors and the enquiry report dated 19.10.2021 submitted by the Internal Complaints Committee constituted by the Principal of Sree Narayana College, Trivandrum, all the writ petitions were taken up together and disposed of by a common judgment in W. P. (C) No. 23694 of 2021 and connected cases dated 13.06.2022.
5. In W. P. (C) No. 28149 of 2021 filed by the writ petitioners / respondents 1 to 4 herein, while quashing Ext. P4 report of the ICC dated 19.10.2021, writ court, issued a direction to the appropriate authority of the college to reconstitute the ICC in terms of UGC Regulations 2015, and to initiate and complete the processes as per the same, after affording necessary opportunity to all sides, thus culminating in a new report.
6. In W. P. (C) No. 5450 of 2022 filed by the appellant, writ court quashed Ext. P5 proceedings of the Deputy Director of W. A. No. 1115 of 2022 -5- Collegiate Education, wherein the appellant was found guilty of the complaints of sexual harassment, leaving full liberty to the Deputy Director of Collegiate Education to initiate and conclude action against the appellant, as per law, if so required in future, depending upon the decision to be taken by the ICC, in terms of the directions contained in W. P. (C) No. 28149 of 2021 stated supra. It was held that the contention that the Director of Collegiate Education has no role to play in this issue, is left open to be decided in future, if it becomes so warranted.
7. Being aggrieved by the directions contained in W. P. (C) No. 28149 of 2021 dated 13.06.2022, Mr. Abhilash T., the 6 th respondent therein, has preferred the instant writ appeal.
8. Taking this Court to the material documents and the InternalVerified Complaints Committee constituted, Mr. K. P. Satheesan, learned Senior Counsel, submitted that earlier, by Annexure I, the Principal, Sree Narayan College, Trivandrum, the 8 th respondent herein, as per the decision of the College Council meeting held on 06.02.2020, constituted the Internal Complaints Committee. Students W. A. No. 1115 of 2022 -6- objected to the said constitution on the grounds inter alia that Dr. Nishima J. S., the Presiding Officer of the said Committee, is a member of an association, in which the appellant was also a member.
9. Learned Senior Counsel further submitted that considering the request of the students, the College Council convened a meeting and a decision was taken to reconstitute the Committee by appointing Adv. Rajeena Maxipaul as the Presiding Officer and the decision of the College Council was also communicated to her.
10. Relevant portion of the discussions and decisions in Annexure II College Council meeting held on 31.08.2021 is reproduced:-
"Regarding the students' complaint, students have given a written submission that they shall co-operate with the inquiry procedures only if ICC of the institution is re-constituted avoiding senior members, HODs and teachers who are members of AKPCTA. Their demands were agreed and as per their request, ten days time was also given to prepare their evidence and submissions. Steps have been initialed to reconstitute ICC adhering to the regulations of UGC, MHRD, University of Kerala, Dept of Higher Education & social justice as well as W. A. No. 1115 of 2022 -7- satisfying the demands of students. As the institution is unable to find a lady Associate Professor who is not an HOD and who is not a member Teachers organisation (AKPCTA) from the home institution or other Institutions & the same employer, willing to discharge the duty of Presiding Officer, ICC.; Adv. Rajeena Ronald Maxipaul is nominated to the post. Section-4 of the POSH Act maintains that Presiding officer can be nominated from any other workplace is case of non availability of female employees at senior levels.
Decisions Council Members unanimously decided to approve the reconstitution of ICC as follows:
External Members:
1. Adv. Rajeena Maxipaul (Presiding Officer) BAL, LLB, QLTT from BPP London.
2. Dr. Bushra Beegom, Director, Centre for Womens' Studies, University of Kerala, Member ICC, University of Kerala.
Faculty Members:
3. Dr. Swapna O., Asst. Prof Commerce
4. Sri. Amjith, Asst. Prof of Physical Education Non-Teaching Staff:W. A. No. 1115 of 2022 -8-
5. Dr. Jinu S. Rajan, UGC Librarian
6. Sri. Premji K.S, Office Superintendent Student Representatives:
7. Aswani Krishna, UG student of Commerce dept
8. Sreelekshmi M., UG student of History dept
9. Deena Joseph, PG student of History dept."
11. As per Annexure III dated 04.09.2021, details of the newly constituted Committee has been intimated to the members. Relevant portion of the same reads thus:-
"Details of ICC Constitution As the institution is unable to find a lady Associate Professor who is not an HOD and who is not a member of Teachers' organisation (AKPCTA) willing to discharge the duty as Presiding Officer of Internal Complaints Committee; Adv. Rajeena Ronald Maxipaul has been appointed as ICC Presiding officer as she is an experienced lady lawyer from Trivandrum Bar Association with commendable legal knowledge in procedural law and practise.
Details of External members:W. A. No. 1115 of 2022 -9-
1. Adv. Rajeena R Maxipaul, (Presiding Officer) a lady lawyer with 25 years of Bar experience in criminal and family law under the Bar Council of Kerala, and further qualified as a solicitor of the Supreme Court of England and Wales. Her qualifications are BAL, LLB from University of Kerala and QLTT from BPP London with extensive knowledge and experience in dealing with women and child law in practice."
12. There is no dispute that it is on the request of the students, decision has been taken for reconstitution of the Internal Complaints Committee with an Advocate as the Presiding Officer. The said Presiding Officer had discontinued due to inconvenience and another lady Presiding Officer, a lawyer, continued with the enquiry and submitted report Ext. P4 report dated 19.10.2021.
13. According to Mr. K. P. Satheesan, learned Senior Counsel, the appellant has been exonerated in the enquiry. Now, after submission of the enquiry report, contention has been raised that the very constitution of the committee itself is contrary to the Regulations 2015. Circumstances warranting change of Presiding Officer has been considered by the College Council, and accordingly, decision was taken.
W. A. No. 1115 of 2022-10-
14. Considering the sequence of events as stated supra and the material on record, we are of the view that the issues raised in the writ petition, as regards reconstitution of committee and completion of the enquiry, have to be decided. The directions issued in paragraph No. 28
(a) of the judgment in W. P. (C) No. 28149 of 2021 dated 13.06.2022 would certainly resurrect the whole thing.
15. In the light of the above, we are inclined to admit the writ appeal and grant interim stay of the directions issued in paragraph No. 28 (a), as regards reconstitution of the Internal Complaints Committee, which would culminate into a new report.
16. Mr. S. Krishnamoorthy, learned counsel, takes notice for the University Grants Commission, New Delhi, the 5th respondent.
17. Mr. Thomas Abraham, learned counsel, takes notice for the University of Kerala, Trivandrum, the 6th respondent.
18. Mr. V. Tekchand, learned Senior Government Pleader, takes notice for the Director of Collegiate Education, Trivandrum, the 7 th respondent.
W. A. No. 1115 of 2022-11-
Issue notice to respondents 1 to 4 and 8 to 10 by speed post, returnable in three weeks.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Eb 31-08-2022 /True Copy/ Assistant Registrar