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Calcutta High Court (Appellete Side)

Dr. Rajnarayan Roy vs State Of West Bengal & Ors on 20 June, 2018

Author: Arindam Sinha

Bench: Arindam Sinha

                                             1


05      20.06.18
suman
Ct.4



                                    W.P. 8255 (W) of 2018


                                      Dr. Rajnarayan Roy
                                             Versus
                                   State of West Bengal & Ors.


                       Mr. Sougata Bhattacharya
                       Mr. Sunit Kumar Roy
                                    ...for the petitioner
                       Mr. Achintya Kumar Banerjee
                       M. Ahmmed
                                    ...for the College
                       Ms. Tapati Samanta
                                    ...for the State
                       Ms. Sumana Basu
                                    ....for University

                       This writ petition has been listed under the heading

                   'To Be Mentioned' at the instance of petitioner citing

                   urgency. Affidavit of service along with postal receipts and

                   track record, separately handed up, show service on all

                   respondents.    Writ petition is taken up for hearing on

urgent basis.

Petitioner is a member of faculty of Dr. Bhupendra Nath Dutta Smriti Mahavidyalay in district Burdwan. He has several prayers on having impugned order dated 31st May, 2018 of Appellate Authority, report dated 7th March, 2018 of Internal Complaints Committee (ICC) and show cause notice dated 4th June, 2018.

Mr. Bhattacharya, learned advocate appears on behalf of petitioner and submits, first writ petition of his client ended in order dated 23rd May, 2018 in appeal whereby his contention of earlier order passed by Appellate Authority without giving him opportunity of hearing was upheld. Appellate Authority has once again passed order impugned which should be set aside by this Court in this second writ petition of his client.

His first point is, the complaint is barred by limitation. He relies on University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment on Women Employees and Students in Higher Educational Institutions) Regulations, 2015, regulation 7. The said regulation provides, inter alia, an aggrieved person is required to submit a written complaint to ICC within 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. He submits, complaint by mother of alleged victim was made on 27th November, 2017 without disclosing a date of incident. The complaint is clearly barred by limitation provided by the rules.

His second point is denial of opportunity of hearing once again. He demonstrates from letter dated 26th May, 2018 of the college that medical certificate dated 21st November, 2017 and answers given by alleged victim to his 3 questionnaire were made over to him on that day being the first date of hearing by Appellate Authority. He develops this point to argue that this material was not with his client for presenting his defence before ICC. That goes to the root of the appellate order. Hence the same should be set aside.

His third point is his client was not allowed to cross- examine other persons whose statements ICC had relied upon in giving the adverse report against his client. On query from Court he submits, his client had given only one questionnaire directed at the alleged victim. He relies on judgment dated 18th August, 2017 of High Court of Delhi in, inter alia, LPA 305/2017 (Ashok Kumar Singh versus University of Delhi & Ors.), to paragraphs 3, 11, 12 and

22. He submits, the judgment was delivered on, inter alia, the compliant that appellant therein was wrongfully denied opportunity to cross-examine witnesses. Decisions of Supreme Court relied upon in the judgment provide for procedure of cross-examination by issuance of questionnaires. According to him, denial of opportunity is more so since the answers by alleged victim were not made known to him at the time of making report by ICC. His last point is that a person who was a member of ICC was also part of Appellate Authority and hence the impugned order is vitiated thereby.

Mr. Banerjee, learned advocate appears on behalf of the College and hands up two copy documents to submit, there were seven members constituting Appellate Authority who dealt with petitioner's appeal on 26th and 31st May, 2018. He submits, the person, who petitioner says was a part of ICC as well as Appellate Authority, did not officiate as a member of Appellate Authority in its deliberations regarding appeal of petitioner. The proceedings till before hearing commenced by Appellate Authority on 26th May, 2018 had happened before said order dated 23rd May, 2018 was passed in appeal arising out of petitioner's first writ petition. As such there is no challenge to impugned order, all other points taken by his learned friend being barred by constructive res judicata.

Ms. Basu, learned advocate appearing on behalf of University and Ms. Samanta, learned advocate appearing behalf of State submits, there should be no interference. Petitioner's first point is complaint is barred. It is found that mother of the student had on 27th November, 2017 lodged compliant. Disclosures in the writ petition reveal a medical certificate dated 21st November, 2017 and there is finding in impugned appellate order that the student had fallen sick on 4th November, 2017. On these facts this Court does not find the complaint to be barred by limitation.

Petitioner's second point of once again having been denied opportunity of hearing by late supply of relevant documents, being medical certificate dated 21st November, 2017 and answers given by the student to his questionnaire, is also a point by which this Court is not impressed. On 26th May, 2018 he was in possession of those documents as given to him at the time of hearing of his appeal. It is petitioner's own case regarding facts. The hearing remained inconclusive and continued again on 31st May, 2018 to be concluded and order made. The appeal was continuation of the scope of inquiry made by ICC. No submission was made before Appellate Authority on the basis of these two documents to show what point of defence could be taken nor has he been able to demonstrate the same in this Court.

Mr. Bhattacharya has contended his client was not given opportunity to cross-examine persons whose statements were relied upon by ICC. Record of proceedings appearing from ICC report does indicate receipt of further complaints, hearing of students and relevant teachers. Several reasons were given by ICC to report as it did. Appellate Authority deliberated on those reasons and found fit to confirm the report but confined 6 such confirmation to be on material produced by the student and disregarded other materials that were there and considered by ICC. This, Appellate Authority had the power to do and there is no perversity.

Petitioner's last point has the effect of requiring a further hearing. Letter dated 26th May, 2018 contains allegation of discovery by petitioner made upon attending hearing before Appellate Authority. Alleged discovery was that a person who was there in ICC was also part of Appellate Authority. This is petitioner's complaint as on 26th May, 2018 dispatched to the college by registered post with acknowledgement due on that date itself in the evening. There is a track report which shows delivery of postal article on 29th May, 2018, that is before next date of hearing and order made by Appellate Authority on 31st May, 2018. The copy documents have been perused but Court requires the college to put in an affidavit regarding constitution of Appellate Authority and disclosure of the minutes. Affidavit will be accepted on the adjourned date upon advance copy served.

List on 22nd June, 2018 marked at 2 P. M. as first item.

( Arindam Sinha, J. ) 7