Kerala High Court
Dr. Ajay S. Sekher vs The Internal Complaints Committee on 10 February, 2021
Author: S. Manikumar
Bench: S.Manikumar, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WA.No.2242 OF 2017
[AGAINST THE JUDGMENT IN WP(C) NO.18970/2017 DATED 20-10-2017
OF HIGH COURT OF KERALA]
APPELLANT/PETITIONER:
DR. AJAY S. SEKHER, AGED 41,
S/O. SOMASEKHARAN, AKILA,GANDHI NAGAR PO,
KOTTAYAM 680008
BY ADVS. SRI.K.M.SATHYANATHA MENON
SMT.KAVERY S. THAMPI
SRI.A.SANTHOSHKUMAR
RESPONDENTS/RESPONDENTS:
1 THE INTERNAL COMPLAINTS COMMITTEE,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY P.O., PIN 683574,
REPRESENTED BY ITS PRESIDING OFFICER.
2 SREE SANKARACHARYA UNIVERSITY OF SANSKRIT
REPRESENTED BY ITS REGISTRAR, KALADY PO, PIN-683574.
* 3 DR. N. JENNY RAPPAI, ASSOCIATE PROFESSOR,
DEPARTMENT OF ENGLISH,SREE SANKARACHARYA UNIVERSITY
OF SANSKRIT,KALADY P.O., ERNAKULAM-683 574.
ADDL. 3RD RESPONDENT MENTIONED IN I.A.16713/2017 IN
WP(C) 18970/2017 IS IMPLEADED AS PER ORDER DATED
15.11.2017 IN W.A.2242/2017.
R1& R2 BY ADV. SRI.PRASANTH S., SC,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2019, THE
COURT ON 10-02-2021 DELIVERED THE FOLLOWING:
W.A.2242/2017 2
JUDGMENT
S. Manikumar, CJ Instant writ appeal is filed against the judgment passed in W.P.(C) No.18970 of 2017 dated 20.10.2017. Said writ petition has been filed by the appellant, aggrieved by the proceedings initiated against him, by the Internal Complaints Committee, respondent No.1, under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, and the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015.
2. The reliefs sought for, by the appellant, in the writ petition are,-
"i. Declare that respondent is not having any jurisdiction or power to conduct inquiry on the basis of a complaint filed by student organization, as they do not qualify the definition of a student or aggrieved woman, employee, as provided under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, and the regulations made thereunder.
ii. Declare that the present Presiding officer of the 1 st respondent, do not fulfill the qualification, as prescribed under Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013;W.A.2242/2017 3
iii. Issue a writ of certiorari, or any other appropriate writ order or direction, calling for the originals of Exts.P1 and P3 and quash the same."
3. Brief facts leading to the filing of this appeal are as follows:
A proceedings has been initiated by the 1 st respondent through Smt.Jenny Rappal, as Presiding Officer, under the UGC (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015, enacted under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, on the basis of a complaint submitted by a student organisation, Ext.R2(a), produced along with the counter affidavit of the 2nd respondent. The contents of Ext.R2(a) is that one of the teachers of the University had a facebook chat, alleging sexual tones, with a former student. The said complaint was referred to the Vice Chancellor of the University. Vice Chancellor has forwarded the same to the 1st respondent.
According to the appellant, the complainant is not an aggrieved person, as per Regulations, 2015. The alleged incident did not occur in the campus or in the workplace, and that too, with a former student. The name of the teacher, place, time etc., as stipulated under Regulations, 2015, are also not disclosed in Ext.R2(a). The appellant had not done so, as alleged. Moreover, the Presiding Officer of the 1 st respondent is not W.A.2242/2017 4 qualified or competent to function as a Presiding Officer, in terms of Exts.P5 and P9 and also in terms of Regulations, 2015. But, the learned Single Judge, without considering the merits of the case, directed the 2 nd respondent, who got impleaded in the writ petition as an additional respondent, and who had stoutly objected the issues raised therein, to consider the issue.
4. After considering the submissions and material on record, writ court vide judgment dated 20.10.2017, disposed of the writ petition, by observing that if the petitioner makes a representation pointing out his objection with regard to the constitution of the Committee, as well as the jurisdiction of the Internal Complaints Committee (ICC), to the Registrar of Sree Sankaracharya University of Sanskrit, respondent No.2, the University shall take up the matter and pass orders thereon, within two weeks from the date of receipt of a copy of the judgment dated 20.10.2019.
5. Writ court also ordered that further proceedings on the complaint preferred against the petitioner/appellant should depend upon the orders to be passed by the University, as directed above.
6. Being aggrieved, petitioner has filed instant writ appeal on the following grounds:
W.A.2242/2017 5
A. Judgment of the writ court itself is conflicting and has caused much prejudice to the appellant. Now, as per the 2 nd direction in the judgment, appellant has been directed to submit a reply to a complaint, which is invalid and does not contain the name of the appellant, and the other essential requirements under the Regulations, 2015. There is nothing in Ext.R2(a), which would enable the appellant to submit a reply.
B. As per the third direction, the proceedings in the complaint are to be carried only after the decision being taken by the Registrar of Sree Sankaracharya University of Sanskrit, respondent No.2.
C. The first direction in the judgment to submit a representation, questioning the sustainability of Ext.R2(a) before the Registrar of Sree Sankaracharya University of Sanskrit, respondent No.2, is against the rule of natural justice and that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. Further, the direction to consider the legality as to the constitution of the ICC by the 2nd respondent is also illegal and unsustainable. In the writ petition, it is the 2 nd respondent represented by the Registrar, who had contested the case before this Court and filed counter affidavit seeking to uphold the validity of Ext.R2(a) and the qualification of Dr. N. Jenny Rappai. Hence, submitting representation to decide about the sustainability of the complaint and qualification of Dr. N. Jenny Rappai to be the Presiding Officer of ICC, is nothing but a mockery and a ludicrously futile action, as the W.A.2242/2017 6 2nd respondent will not take a stand against the version submitted in their counter affidavit. Hence, submission of representation and decision thereon is only a mockery, result of which is evident from the counter affidavit filed by the 2 nd respondent. It is the minimum requirement of natural justice that a decision on a complaint must be taken by impartial persons who act fairly, without bias, and in good faith.
D. Judgment of the writ court is against the first Principle of Natural Justice: "Nemo debet esse judex in propria causa ":
The maxim means that no person can be a judge in his own cause. The fundamental rule of natural justice in departmental proceedings is that the disciplinary authority should be impartial and free from bias. The real test is whether a man of ordinary prudence would have a feeling of bias. This follows from the principle that justice should not only be done, but should manifestly seem to be done. In the present case, it is clear from the counter affidavit that the Registrar of Sree Sankaracharya University of Sanskrit is now with a foreclosed mind and has prejudged the issue or predetermined to punish the appellant. Hence, a decision about the sustainability of the complaint and composition of ICC by the Registrar of Sree Sankaracharya University of Sanskrit, is not free from the question of bona fides or mala fides of the deciding authority.
E. It is clear from the proceedings that Sree Sankaracharya University of Sanskrit, represented by its Registrar, respondent No.2, had shown undue interest in interfering with the responsibility and liability of the Internal Complaints W.A.2242/2017 7 Committee, Sree Sankaracharya University of Sanskrit, represented by its Presiding Officer, respondent No.1, in the writ petition. The manner in which the 2 nd respondent had shown his involvement and interference in the issue projected by the appellant before this Court in the writ petition, itself shows the undue and vested interest of the Registrar of Sree Sankaracharya University of Sanskrit, to see that somehow the appellant is harassed and punished. Hence, the direction to submit representation before the 2 nd respondent itself is against the principles of natural justice. The said direction had caused much prejudice to the appellant.
F. Writ court had failed to appreciate that a proceeding against the appellant on Ext.R2(a) complaint cannot be proceeded with as the complaint does not contain appellant's name and is not directed against the appellant. Further the complainant is not an aggrieved woman as provided under Act, 2013 and Regulations, 2015. Further, the complaint was not submitted in compliance to the method mandated in Act, 2013 and Regulations, 2015. In the present case, a compliant was given to the Vice Chancellor of the University. According to Act, 2013, in its Handbook available on UGC website, the complaint should contain the name of the victim and the respondent, the date, time and place of the incident, description of the incident etc. But the complaint in question lacks these key prescribed details. Further, the complaint also does not contain the name of the aggrieved woman or her identity. Writ court has also failed to appreciate that in the W.A.2242/2017 8 present case, the complaint itself states that the aggrieved is a former student and according to Regulations, 2015, only a student "pursuing a programme of study.' or working women are covered under it and the Internal Complaint Committee cannot conduct an enquiry on it. Further, the complaint itself shows that the incident occurred not in the campus/ workplace, but is related to a chat on facebook." So it is well out of the definitions of workplace/campus in the UGC Regulations on it (Regulation 2, C and O). Hence, continuance of an enquiry proceedings on a complaint, which falls outside the purview of a complaint, ought to have been found by the writ court as arbitrary and illegal.
G. From Ext.P8, it is clear that the ICC had gone out of the Campus (to Angamaly) and took a statement of a former student (who is not the complainant) in violation to the provisions, as stipulated under Regulations, 2015. In the counter affidavit, the said illegal action from the side of respondent No.1 is justified by the 2 nd respondent. This itself shows the prejudged mind of the 2 nd respondent to punish the appellant. Hence, a decision to be entered upon by the respondent on the representation to be submitted by the appellant can only be considered as mockery and creating a feeling of injustice to appellant.
H. From the counter affidavit of the 2 nd respondent in the writ petition, it is clear that the 2 nd respondent is protecting an unqualified, accused, and warned person, as Presiding officer and parading her as a qualified one. It is stated that the Presiding Officer of Internal Complaints Committee, Dr. N. W.A.2242/2017 9 Jenny Rappai, who has officiated this illegal hurried action and evidence collection does not qualify to be the Presiding Officer of Internal Complaints Committee, as she is only an Associate Professor. Moreover, the previous Internal Complaints Committee has found that Dr. N. Jenny Rappai, has misused the provisions, to file fraudulent and baseless complaints of gender discrimination against her Head of the Department and made a remark that "she has made a mockery of the legally constituted committee." The former Internal Complaints Committee also recommended to warn her in this regard. Other than the disciplinary directions of the previous ICC, students also registered complaint against Dr. N. Jenny Rappai, for unethical behavior as a teacher, as evident from Ext.P9, and for showing discrimination against students. Inspite of all such disqualifications, the 2 nd respondent all through the counter affidavit, was defending Dr. N Jenny Rappai. Hence, a fair decision on the grievance projected by the appellant remains only as a fantasy.
I. Writ court has failed to appreciate that there had occurred grave negligence and irresponsibility from the side of the 2 nd respondent and Internal Complaints Committee in dealing with the issue raised against the appellant, which is seriously affecting the life and dignity of appellant. The action on the part of the Vice Chancellor, directing the Internal Complaints Committee to conduct enquiry, and its hurried actions on the basis of such an invalid complaint, itself prevents the University to decide on the issue raised by the appellant. In the present case, the authorities are showing undue interest W.A.2242/2017 10 and hurry in somehow punishing the accused, violating the Regulations and the fair process of enquiry. Hence, justice is not ensured by directing the appellant to file representation before the 2nd respondent and also by directing to submit a reply on a complaint, which do not contain the name of appellant.
J. The writ court ought to have allowed I.A No: 16713/17 and I.A No: 16714/17 filed in the writ petition."
7. According to the appellant, the incident did not occur in the campus/workplace, but it was related to a chat in facebook. Before the writ court, the appellant has questioned the jurisdiction and authority of the Internal Complaints Committee, to enquire into the complaint. Further, the complaint does not satisfy the requirements of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women, Employees and Students in Higher Educational Institutions) Regulations, 2015.
8. On 4.7.2017, the Registrar of Sree Sankaracharya University of Sanskrit, 2nd respondent, has filed an interlocutory application before the writ court, stating that the University was not made a party to the writ proceedings and enquiry was ordered based on the direction of the Vice Chancellor of the University. It is the case of the 2 nd respondent that, it is in W.A.2242/2017 11 the interest of the University to ensure that enquiry is conducted and true facts of the incident are brought out, application is filed. As per the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women, Employees and Students in Higher Educational Institutions) Regulations, 2015, the higher educational institution has to treat sexual harassment as a misconduct under the Service Rules and initiate action for misconduct if the perpetrator is an employee. If further actions have to be initiated by the University, based on the report of respondent No.1, Internal Complaints Committee, University is essential to be a party to the writ petition.
9. Before the writ court, the Internal Complaints Committee, respondent No.1, has filed a counter affidavit to the interlocutory application for impleading the 2nd respondent. Relevant portion of the said counter affidavit is extracted hereunder:
"3. Writ Petition was filed with a prayer to declare that the 1st respondent claiming to be an Internal Complaints Committee of the University, had initiated proceedings against the 2 nd respondent without any authority and jurisdiction. The 2 nd respondent is in darkness with respect to the averments in the application for impleading that the alleged committee, respondent No.1, has proceeded on the basis of an enquiry ordered, based on a direction of the Vice-chancellor. It is submitted that the Vice-chancellor of the W.A.2242/2017 12 University represented by the Registrar have no authority to entrust any proceedings against the respondent. Moreover, even after issuing notice in the writ petition, the 1st respondent, that is, the Internal Complaints Committee, has not even appeared before this Court and intentionally avoided its presence. It is highly surprising that a University itself is coming with an application for impleading in a writ petition, preferred against the Internal Complaints Committee. So the said application itself shows the malafide intention of the University against the respondent.
4. It is further submitted that Regulation 4 of Regulations, 2015, speaks about the constitution of the Grievances Redressal Mechanism. Regulation 4, sub clause 4(3) clarifies that persons in senior administrative positions in the Higher Education Institution (hereinafter referred to as HEI), such as Vice-Chancellors, Rectors, Registrar, Deans, Head of the Departments etc. shall not be members of Internal Complaints Committee, in order to ensure autonomy of their functioning. Then, the regulation itself prohibits the involvement of Vice-Chancellor or the Registrar etc., and it is highly unsustainable to come into the party array, and to defend the illegal action taken by the respondent in the writ petition. On this sole ground itself, it is stated that the petitioner herein has no legal right to get themselves impleaded as an additional respondent in the writ petition."
10. By order dated 18.07.2017, writ court ordered impleadment of the 2nd respondent University.
11. Before the writ court, the 2 nd respondent has filed a counter affidavit, wherein it was contended as follows: W.A.2242/2017 13
"A. The Unit Secretary of All India Students Federation (AISF) has submitted a complaint against the petitioner regarding allegations of sexual harassment committed by him. On receipt of the complaint, Vice-Chancellor forwarded the complaint to the Internal Complaints Committee with a direction to conduct enquiry and submit a report by endorsement dated 22-5-2017. The enquiry is initiated as serious allegations of sexual harassment have been raised against the petitioner. The University as a Higher Educational Institution has to ensure that there is a good, safe environment for students irrespective of gender to learn. Any instance of sexual harassment cannot be tolerated in the University.
B. As per Regulation 3(1)(m) of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015, the Higher Educational institution has to treat sexual harassment as misconduct under Service rules and initiate action for misconduct if the perpetrator is an employee.
C. The victim in this alleged instance of sexual harassment is a student, who had submitted her M.Phil thesis and has not obtained T.C. from the University. She is a student as per the provisions of the University Grants Commission Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015.
D. It was further contended that though the 1 st respondent, by letter dated 27-5-2017, directed the petitioner to appear for a hearing on 31-05-2017. he did not attend the hearing. The 1 st respondent by letter dated 1-6-2017 again directed the petitioner to appear for a hearing on 08-08-2017.W.A.2242/2017 14
E. Copy of the complaint was handed over to the petitioner on 25-7-2017 and also to his counsel. The Internal Complaints Committee has taken evidence from the victim and others in this matter and is ready to produce the documents in a sealed cover before this Court. The petitioner has raised allegations against Dr. N. Jenny Rappai, without making her a party in the Writ petition. Ext.P5 has been produced in violation of Section 16 of the Sexual Harassment of Women at Workplace (Prevention,. Prohibition and Redressal) Act, 2013 which prohibits publications or making known contents of complaints and inquiry proceedings. The petitioner was not a party in the above proceedings and it is not clear how he obtained Ext.P5 Report. The finding in Ext.P5 enquiry report does not disqualify Dr. N.Jenny Rappai in any way. There is no challenge against the appointment of Dr. N.Jenny Rappai as the presiding officer of the Internal Complaints Committee and a collateral challenge in the form of a declaration sought for that she does not fulfill the qualification as prescribed under of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is not maintainable.
F. Dr. N.Jenny Rappai is an expert in field of Gender studies and has been a resource person in many seminars, and workshops on gender issues and Sexual Harassment held in Universities in Kerala as well as other States. She has also conducted workshops on the subject in organisations like ESI Corporation. She has fulfilled the qualifications prescribed as per Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
G. It was further contended that the contention of the petitioner that the 2nd respondent is not having authority to proceed with the W.A.2242/2017 15 complaint of a student organization under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is denied. Section 28 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. The Act or the Rules made thereunder do not take away the powers of the University to initiate disciplinary proceedings against an erring employee. It is not necessary while initiating disciplinary proceedings, even when it is related to sexual harassment to proceed only as per the provisions of the above Act. If such an interpretation is used, many perpetrators of the offence of sexual harassment might go scot free, only because the victim does not file a formal complaint.
H. The Vice-Chancellor of the University has entrusted the Internal Complaints Committee to conduct an enquiry on the basis of Exhibit-R2(a) complaint. The University is bound to have a zero tolerance policy towards Sexual Harassment as per the provisions of the University Grants Commission Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015. It has to treat sexual harassment as misconduct under service rules and initiate action for misconduct if the perpetrator is an employee. The disciplinary proceedings are carried out strictly following the principles of natural justice.
I. This Writ Petition is filed by the petitioner only to delay the enquiry proceedings. The Writ Petition is premature and is not W.A.2242/2017 16 maintainable. It is evident that the petitioner does not want the enquiry to continue."
12. Appellant has filed a reply affidavit dated 17.10.2017 to the counter affidavit filed by the 2nd respondent. Said reply is reproduced:
A. Originally in the writ petition, the Internal Complaints Committee was arrayed as the sole respondent represented by its Presiding Officer. The 2nd respondent University was impleaded as the additional respondent in the writ petition by filing I.A No: 1873/2017 and the same was allowed on 18/7/2017. While allowing the application for impleading, the counsel appearing for and on behalf of the additional 2 nd respondent took notice on behalf of the 1 st respondent and accordingly, service to both the respondents was recorded as complete. Even though serious allegations were made against the 1st respondent, there is no statement filed by the first respondent disputing the averments in the writ petition.
B. It is pertinent to note that 1st respondent has not responded so far to the writ petition and the 2 nd respondent is showing undue interest in interfering with the responsibility and liability of 1st respondent which is evidently prescribed by the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees in Higher Educational Institutions) Regulations, 2015 (for short Regulations, 2015) that prevents the direct involvement and interference of administrative officials, especially the Registrar of University in the functioning and responsibilities of 1st respondent. This undue interest and over action is a W.A.2242/2017 17 clear misuse of power by the University and exposes their vested interest to see that somehow the petitioner is harassed and punished.
C. Ext.R2(a) complaint is one filed by the student union and the same does not mention the name of the petitioner anywhere. Regulations, 2015 is uploaded in the website together with a Handbook on Sexual Harassment of Women at Work Pace (Prevention, prohibition and Redressal) Act, 2013. In Section 4 of said Handbook and in Regulation 7 of the Regulations 2015, it is clearly mentioned as to "Who can Complain" and what should the complaint contain". A true copy of the relevant pages of the Handbook on Sexual Harassment of women at Work Pace (Prevention, Prohibition and Redressal) Act, 2013 is produced herewith and marked as Exhibit-P6. In Ext.R2(a), the complainant is AISF which is a student political organization. Regulations, 2015 stipulates as to who should be the complainant for 1st respondent to conduct the enquiry.
Regulations, 2015 provides that complaint should be written by the "aggrieved" person and only if the aggrieved person is unable to make the complaint on account of physical or mental incapability that close associates can file a complaint, that too for the "aggrieved". Further, complaints should also contain the name of the respondent, date, time, location and description of the incident etc. Ext.R2(a) lacks all these contents and hence cannot be proceeded under the Regulations, 2015.
D. The Vice Chancellor on receipt of Ext.R2(a) ought to have first probed into the fact that whether such a complaint is W.A.2242/2017 18 maintainable under the Act, 2013 and Regulations, 2015. It is without looking into all these statutory provisions that the Vice Chancellor had issued directions in a hasty manner to conduct an enquiry on such invalid complaint. Moreover though Ext.R2(b) referred about the order of Vice chancellor, the same was not served upon the petitioner. Even though petitioner's wife applied under the Right to Information Act, the said order was also not issued to her. Later she had preferred appellate authority stating that the disclosure was made by a former student and the vice chancellor had just referred the matter for consideration of the Internal Complaints Committee.
E. The averment made by the 2nd respondent in paragraph 3 of his counter affidavit that the enquiry was initiated as there were serious allegations of sexual harassment against the petitioner is false and incorrect. From Ext.R2(a) complaint, it is clear that the so called "aggrieved woman" is a former student. The complaint does not contain the name of the aggrieved woman or her identity. Moreover, a complaint will not survive when a complaint has been preferred by a form student. The definition of student as contained in the Sexual Harassment of the Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 will not include a former student. Similarly, the aggrieved woman in Ext.R2(a) complaint does not come under the definition of student as per Regulations, 2015 as her programme of study is over. Moreover in the counter affidavit, the 2nd respondent has stated that her M. Phil thesis is submitted. The alleged W.A.2242/2017 19 aggrieved woman has completed her course and degree is awarded to her. The next M Phil batch is now running and she is no longer on the rolls or attendance register of the University. The mere fact that she did not collect her transfer certificate will not confer her studentship as per the Act, 2013 and Regulations, 2015. It is common to see that many students leave the University without collecting their transfer certificate and the University may not be responsible for all their actions and life ever after. Thus the respondents have got no right to conduct inquiry as the person alleged to be aggrieved is not covered by the provisions contained in the Act, 2013 or Regulations, 2015. Further according to Regulations 2015, the student means a person "duly admitted and pursuing a programme of study.
F. It is not true that the petitioner did not appear for the hearing for only mislead this Court. It is clearly averred in the writ petition that after receipt of the complaint, the petitioner sought a copy of the complaint and sought time to submit his reply by communication dated 30.5.2017. G. The 1st respondent has no power to summon persons and take statements that too from a former student for an act that did not take place in the campus/workplace defined by the Regulations, 2015. Moreover, it is also unknown to the procedures prescribed under the Act, 2013 and Regulations, 2015 for the internal complaints committee to get the complaint of the alleged victim after initiating the enquiry proceedings. It would reveal that the 1 st respondent has conducted a hurried enquiry without even looking into the W.A.2242/2017 20 maintainability of the complaint. The 1 st respondent has failed to follow the process of enquiry and look into the law and was maliciously targeting the petitioner, which amounts to gross misuse of power. It is reliably known from the information gathered through the Right to Information Act that the 1st respondent had gone outside the campus to Angamaly and had obtained some statement from the former student by using coercion and force. The right to information also discloses that the alleged victim is a former student.
H. The non-obstante clause in Section 16 excludes the information obtained under Right to Information Act, 2005. Moreover, Section 16(i) only prohibits publication, communication or making known to public, press and media. The same does not bar the production of the same in legal proceedings. The averments made in paragraph 10 of writ petition does not disqualify Dr. N. Jenny Rappai is also baseless as Section 4 of Act, 2013 which deals with the constitution of ICC clearly states in sub-section (5) (c) that Presiding Officer should not have been found guilty in any disciplinary proceedings and sub section 5(d) states that the Presiding Officer of the ICC should not have abused the position. Though the enquiry was proceeded on complaint filed by Dr. N.Jenny Rappai, the findings in Ext.P5 is against her. Hence, Dr. N. Jenni Rappai is not the competent Presiding Officer of ICC. In a report submitted by the enquiry officer, he had found serious lapses and errors from Dr. N. Jenny Rappai and the complainant acted in a biased W.A.2242/2017 21 manner. It is clearly understood that the said disciplinary proceedings are still pending against her. Without looking into all these aspects Dr. N. Jenny Rappai was appointed as the Presiding Officer and there is no challenge against her appointment as the Presiding Officer of ICC.
I. Some of the members of the ICC namely, Dr. Jinitha K.S., Smt. C. S. Padmini and Annie N.C. have submitted their resignations on the ground that the appointment of Dr. N. Jenny Rappai is against the Act, 2013 and Regulations, 2015 and she is not competent to hold the post of Presiding officer of ICC.
J. It is further stated that Dr. N. Jenny Rappai is an Associate Professor in the Department of English. Regulation 4 of Regulations, 2015 provides for the constitution of the ICC and as per Regulations, 2015, the Presiding Officer shall be a senior women faculty member not below the rank of a professor in case of a University. It is a clear indication from Ext.P10 that Dr. N. Jenny Rappai is not a professor of a University and that she is only an Associate Professor and her name has not been included in the list of women professors in the University.
K. The averments in para 2 of the counter affidavit of the 2 nd respondent that a former student would be covered under the Act, 2013 by way of operation of Section 28 of the said Act is unsustainable. Section 28 is the provision contained in the said Act and shall be in addition to any other law. L. The jurisdiction of the 1st respondent must be confined to the definitions of students, workplace, campus, sexual W.A.2242/2017 22 harassment, complainant, as provided under Regulations, 2015. Therefore, neither the 1st respondent nor the 2nd respondent has the right to make any enquiry and or take any action against the petitioner. Dr. N. Jenny Rappai as the Presiding Officer of the ICC and a collateral challenge in the form of declaration that she does not possess the qualification prescribed under Act, 2013 is only technical and the same can be corrected by impleading Dr. N. Jenny Rappai as additional 3rd respondent."
13. Along with the abovesaid reply, petitioner/appellant has also produced an enquiry report (Exhibit-P9) against Dr. Jenny Rappai, to contend that she is not qualified to be the Chairperson of the Internal Complaints Committee.
14. In exercise of the powers conferred by Section 26(1)(g) of the University Grants Commission Act, 1956 (3 of 1956), read with sub-section (1) of Section 20 of the said Act, the University Grants Commission has framed the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015. Regulation 2(a) defines 'aggrieved woman' as under:
"2(a) "aggrieved woman" means in relation to work place, a woman of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;"W.A.2242/2017 23
15. That apart, Regulations 2(k), 2(l), 2(o) of the Regulations, 2015 are extracted hereunder:
"(k) "sexual harassment" means-
(i) "An unwanted conduct with sexual undertones if it occurs or which is persistent and which demeans, humiliates or creates a hostile and intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and includes any one or more or all of the following unwelcome acts or behaviour (whether directly or by implication), namely;-
(a) any unwelcome physical, verbal or non verbal conduct of sexual nature;
(b) demand or request for sexual favours;
(c) making sexually coloured remarks;
(d) physical contact and advances; or
(e) showing pornography"
(ii) any one (or more than one or all) of the following circumstances, if it occurs or is present in relation or connected with any behaviour that has explicit or implicit sexual undertones-
(a) implied or explicit promise of preferential treatment as quid pro quo for sexual favours;
(b) implied or explicit threat of detrimental treatment in the conduct of work;
(c) implied or explicit threat about the present or future status of the person concerned;
(d) creating an intimidating offensive or hostile learning environment;
W.A.2242/2017 24
(e) humiliating treatment likely to affect the health, safety dignity or physical integrity of the person concerned;
(l) "student" means a person duly admitted and pursuing a programme of study either through regular mode or distance mode, including short-term training programmes in a HEI;
Provided that a student who is in the process of taking admission in HEIs campus, although not yet admitted, shall be treated, for the purposes of these regulations, as a student of that HEI, where any incident of sexual harassment takes place against such student;
Provided that a student who is a participant in any of the activities in a HEI other than the HEI where such student is enrolled shall be treated, for the purposes of these regulations, as a student of that HEI where any incident of sexual harassment takes place against such student;
(o) "workplace" means the campus of a HEI including-
(a) Any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate HEIs;
(b) Any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereof in HEIs;
W.A.2242/2017 25
(c) Any place visited by the employee or student arising out of or during the course of employment or study including transportation provided by the Executive Authority for undertaking such journey for study in HEIs."
16. Regulation 7 speaks about the process of making complaint of sexual harassment and the same reads thus:
"7. Process of making complaint of sexual harassment. - An aggrieved person is required to submit a written complaint to the ICC within three months from the date of the incident and in case of a series of incidents within a period of three months from the date of the last incident.
Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee shall render all reasonable assistance to the person for making the complaint in writing;
Provided further that the ICC may, for the reasons to be accorded in the writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the person from filing a complaint within the said period."
Friends, relatives, Colleagues, Co-students, Psychologist, or any other associate of the victim may file the complaint in situations where the aggrieved person is unable to make a complaint on account of physical or mental in capacity or death."
17. Exhibit-P7 is the information dated 05.10.2017 received by the appellant's wife viz., Jaime Chitra under the Right to Information Act, 2005 from the appellant authority and the same is extracted hereunder:
W.A.2242/2017 26 W.A.2242/2017 27
18. Exhibit-P8 is the another information dated 'nil', received by the appellant's wife viz., Jaime Chitra under the Right to Information Act, 2005, and the same is extracted hereunder:
"Proceedings of ICC in the complaint given by the AISF Unit Secretary N. S. Unnimaya on the basis of a news came up in social media that a teacher had chatted with a M.Phil student with sexual content.
1. I.C.C on 22/05/2017 has considered complaints raised in various parts of University before receiving this complaint.
2. The complaint submitted by N.S.Unnimaya, the unit secretary of AISF to the Vice Chancellor was received on 23/5/2017 and convened a meeting on 24/05/2017 and decided to record the statement of N.S.Unnimaya and Dr. Sheeba.K.M.
3. The statement of Unnimaya N.S was recorded on 25/05)2017 in the morning at 11.30 and Dr. Sheeba.K.M teacher in History department had recorded her statement at 2.30 in the afternoon.
4. The statement of Kumari. Sreedhanya, a former student was recorded on 26/05/2017 at Angamali Guest House according to her convenience and documents pertaining to conversation were received by ICC.
5. On the basis of the above mentioned depositions an official letter has been sent on 27/5/17 to Dr.Ajay Sekher a teacher to be present before ICC on 31.05.2017, Wednesday at 11.30 morning and SMS also sent through phone.
6. Dr. Ajay Sekher was not present in the meeting of ICC convened on 31.05.2017. When the said person was contacted over phone, he informed that he will not be appearing and that he needs time. It was decided to grant Ajay Shekhar who had shown disrespect to the direction of ICC by avoiding hearing, one more opportunity and to convene the next meeting on 8/06/2017.W.A.2242/2017 28
7. The statement of Unit Secretary Ajmal was recorded on 6/6/17 after calling him before ICC on the basis of the complaint given by Unit Secretary Ajmal on 2.06.17.
8. On 8.6.2017 Dr. Ajay Shekar appeared before at 11.30 before ICC as directed to him and handed over the stay report of this Hon'ble Court in W.P(C) 18970/2017 along with his submission and as per the order of the Hon'ble Court the proceedings was stayed for two weeks.
9. Report of ICC will be submitted before the University based on the orders of the Court."
19. Exhibit-R2(a) complaint dated 22.05.2017 submitted by the Unit Secretary, All India Students Federation, Unit Committee of Sree Sankaracharya University of Sanskrit, to the Vice Chancellor, produced along with the counter affidavit of the 2nd respondent, reads thus:
"ALL INDIA STUDENT FEDERATION (AISF) UNIT COMMITTEE SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY Email: [email protected] Date: 22.05.2017 To The Vice Chancellor SSUS, Kalady.
Sub: Regarding enquiry to be conducted by the University Internal Complaints Committee to the revelation made by a former student against a teacher who approached her in a sexual tone while chatting on Facebook.
Sexual allegations are being continuously raised against the teachers in the main Centre of Sanskrit University. AISF believes that these circumstances are repeated due to the inaction of the University by not taking any inquiry or action against the accused.W.A.2242/2017 29
A Facebook post of a former student of University was reported by the leading news channels like Malayalamanorama, Reporter and online medias such as doolnews.com, marunadanmalayali.com. It is understood from the news that the said student had raised serious allegations against her teacher. This has been confirmed by another teacher on her Facebook. Though this has been discussed in the society, the authorities of the University or internal complaint committee authorities who are responsible to take suo motu action if any of such incidents are noticed, have not taken any steps for enquiry. The said act is illegal and highly objectionable. Hence it is requested that since the above mentioned subject is affecting the future and security of thousands of female students in the University, the internal complaint committee has to take immediate steps on the basis of the news report referred above and the posts and to take statement from the persons concerned and to find out the accused and to give appropriate punishment and if the internal complaint committee which is bound to register complaint suo motu and to enquire is not doing so, the letter of AISF may be treated as a complaint and further steps may be taken on same and to declare an enquiry and the same may be intimated to the general society and to convince them that the University is stands with students.
Copies of news report is produced herewith.
Yours truly Sd/-
S.N.Unnimaya Unit Secretary AISF Sanskrit University, Kalady"
20. Inter alia, the issues raised by the appellant, before the writ court are that, the complaint is not preferred by the alleged aggrieved person, but by an association; the alleged aggrieved person is not a student of the University, as she had already completed the course; the constitution of the Internal Complaints Committee is without jurisdiction; Chairperson of the W.A.2242/2017 30 Internal Complaints Committee has no competence to hold such a post, as she lacks the qualifications; when the University itself got impleaded and filed a counter affidavit, defending the constitution of the Internal Complaints Committee, even it is remitted back to the University, there is a likelihood of bias; that there would be undue influence on the Registrar of the University; when the name of the appellant was not mentioned in the complaint, no action can be taken against the appellant; when the copy of the complaint was not served on him, direction issued by the writ court to submit an explanation to the complaint would run contrary to the directions issued to the Registrar to decide the legality, as to the constitution of the Internal Complaints Committee.
21. Before the writ court, though the action of the Registrar of Sree Sankaracharya University of Sanskrit, to implead as additional 2 nd respondent, has been opposed by the Internal Complaints Committee, the 1st respondent, on the grounds, inter alia, that as per Regulation 4, sub- clause 4(3) of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015, that persons in senior administrative positions in the Higher Education Institution (hereinafter referred to as HEI), such as Vice-Chancellors, Rectors, Registrar, Deans, W.A.2242/2017 31 Head of the Departments etc., shall not be members of Internal Complaints Committee, in order to ensure autonomy of their functioning and that, the regulation itself prohibits the involvement of Vice-Chancellor or the Registrar etc., finding that the University is a necessary and proper party for effective adjudication of the issue raised, vide order dated 18.07.2017, writ court has allowed the application, I.A. No.10873 of 2017, and impleaded the Sree Sankaracharya University of Sanskrit, represented by its Registrar, Kalady, Ernakulam as additional 2nd respondent.
22. During the course of hearing of this appeal, it was submitted that the Chairman of the Internal Complaints Committee has resigned. Placing on record the said submission, there is no need to advert to the second prayer in the writ petition.
23. Material on record shows that the then Chairperson of the Internal Complaints Committee has conducted a preliminary enquiry into the complaint submitted by the Union, and recorded the revelations made by a student, Smt. S.N.Unnimaya, the Unit Secretary of AISF Sanskrit University, Kalady, and a former student Kum. Sreedhanya. Official letter has been sent to the appellant/writ petitioner to appear, but he did not turn up. Although the name of the appellant has not been specifically mentioned in the complaint, the appellant has been directed to appear. W.A.2242/2017 32
24. Though in the writ petition, appellant has challenged the constitution of the Internal Complaints Committee, to enquire into the allegations made by the Unit Secretary of AISF Sanskrit University, Kalady, on several grounds, at paragraph 4 of the statement of facts filed along with the writ petition, the appellant has stated as to what constrained him to file the writ petition. Relevant portion is extracted hereunder:
"On 29/5/2017 at 3.35 P.M, appellant was served with Ext. P1 communication directing the appellant to appear for a personal hearing with respect to a complaint filed by the AISF Unit Secretary before the 1st respondent. As the complaint was not served on the appellant, he sought for a copy of the complaint vide Ext.P2 reply. Appellant was not served with the copy of the complaint, instead Ext.P3 communication was issued by the 1st respondent to appellant on 1/6/2017 directing appellant to appear before the ICC on 8/6/2017 at 10.30 a.m. In Ext.P3 it was seen that if the appellant fails to appear for hearing the same will be treated as a serious lapse and 1 st respondent will take for granted that appellant has nothing to say pertaining to the complaint. Consequent to Ext.P3, appellant had forwarded Ext.P4 communication and though appellant sought for a copy of the complaint the same was not served to the appellant. Hence the appellant was constrained to approach this Hon'ble Court challenging the constitution of the 1st respondent and its jurisdiction to conduct an enquiry."W.A.2242/2017 33
25. From the above, it could be seen that one of the grounds raised by the appellant is non supply of the complaint. Thus, alleging non-supply of the copy of the complaint, the appellant/writ petitioner has alleged violation of natural justice, but he has candidly admitted that he would submit an explanation to the same and also challenge the authority and jurisdiction of the 1st respondent, in conducting an enquiry. Relevant portions are extracted hereunder:
"3. It submitted that to the knowledge of the petitioner there had never occurred any incident of sexual harassment to any student or women at Sree Sankaracharya University of Sanskrit from the hands of this petitioner. Moreover, Ext. P1 reveals that the complaint is filed by AISF Unit Secretary, which represents a student organization and the same do not qualify the definition of a student or aggrieved woman. Hence, petitioner being left in darkness and for the purpose of acquainting himself about the accusation leveled against him, petitioner had sent a reply on 30/5/2017 to the respondent herein requesting to provide a copy of the complaint for submitting a proper reply. Petitioner had also sought time to file a reply. A true copy of the letter issued by the petitioner to the respondent dated 30/5/2017 is produced herewith and marked as Exhibit P2. Moreover, the process of conducting enquiry by the Internal Complaints Committee provides that a copy of the W.A.2242/2017 34 complaint must be sent to the person against whom allegation is raised, within 7 days and he shall file his reply with the list of documents and witnesses, within a period of 10 days.
4. Thereafter, the petitioner was never served with a copy of the complaint referred to in Ext. P1. Instead, another communication was issued by the respondent to petitioner on 1/6/2017 directing petitioner to appear before the ICC on 8/6/2017 at 10.30 a.m. A true copy of the communication dated 1/6/2017 issued by the respondent to the petitioner is produced herewith and marked as Exhibit P3. A perusal of Ext. P3 would reveal that apart from the direction to appear before respondent it was further written that the same is another chance for petitioner to appear before the respondent for recording petitioner's statement, failing which the Internal Complaints Committee (ICC) will consider the same as a serious lapse and take for granted that petitioner have nothing to say pertaining to the complaint. Thus, it is clear from Ext. P3 that the respondent is proceeding to finalize the proceedings, without even serving a copy of the complaint to the petitioner and, without granting him time to file his reply. It is submitted that the said action from the part of the 1st respondent is gross violation of the principles of natural justice of fair opportunity and the right to a fair hearing (audi alteram partem).
5. Consequent to Ext. P3, petitioner on several occasions had approached the Internal Complaints Committee (ICC) to serve a copy of the complaint so that W.A.2242/2017 35 petitioner could get a knowledge about the complaint submitted against him and the need for such an enquiry against the petitioner and also to prepare his reply, if required. But, petitioner was denied the copy of the complaint. Thus, the right to fair trial, as enshrined in the Constitution of India, was denied to the petitioner by the 1st respondent. Thus, petitioner again on 3/6/2017 had forwarded a letter to the respondent seeking copy of the complaint so as to enable the petitioner to submit a proper explanation and also to challenge the authority and jurisdiction of the respondent in conducting such enquiry causing much harm to the reputation of petitioner. A true copy of the letter issued by the petitioner to the respondent dated 3/6/2017 is produced herewith and marked as Exhibit P4."
26. If that be so, the contention of the appellant in this appeal that the directions of the writ court to give his explanation to the complaint and simultaneously, directing the Registrar of Sree Sankaracharya University of Sanskrit, respondent No.2, to take up the matter and pass orders thereon, within a period of two weeks from the date of receipt of a copy of the impugned judgment, are erroneous, cannot be accepted. It is also noticed that the writ court has also ordered that any proceedings on the complaint preferred against the appellant/writ petition would depend upon the orders to be passed by the University.
W.A.2242/2017 36
27. When the appellant himself has stated that he would submit his explanation to the complaint and take up the jurisdictional issue and also the authority of the Internal Complaints Committee, to enquire into the allegations, writ court, having considered the entire material on record, did not go into the merits of the case, but issued the directions, aforesaid, and in such circumstances, we cannot find any illegality in the directions issued by the writ court in the impugned judgment.
28. It is also to be noted that Sree Sankaracharya University of Sanskrit, represented by its Registrar, Kalady, got impleaded as additional 2nd respondent, by filing an interlocutory application, to defend the action, and the said University has not taken up the matter, against the directions issued, by way of any appeal, meaning thereby, that the University would consider the explanation to the complaint, in all respects, both on merits, as well as the jurisdiction and authority. In such circumstances, the University should, with open mind to the statutory provisions and the regulations framed thereunder, shall consider the explanation of the appellant, without giving any room the apprehensions raised.
29. Contents of the complaint dated 22.05.2017 [Ext.R2(a)], submitted by the Unit Secretary of AISF Sanskrit University, Kalady, have already been extracted in the foregoing paragraphs. Therefore, it is for the W.A.2242/2017 37 appellant/writ petitioner, to submit the explanation, as stated by him. Explanation be submitted, within one month from the date of receipt of a copy of this judgment. On receipt of the explanation, along with the supporting documents, the Registrar of Sree Sankaracharya University of Sanskrit, Kalady, respondent No.2, is directed to pass orders on its merits and in accordance with law. Said exercise shall be completed, within a period of two months from the date of receipt of the explanation.
Giving due consideration to the pleadings and material on record, we are not inclined to interfere with the impugned judgment. Writ appeal is disposed of, as above.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
A. M. SHAFFIQUE JUDGE Krj //true copy// P.A. TO C.J.