Jharkhand High Court
Bijaya Mishra vs Union Of India Through The Secretary Of ... on 30 January, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6207 of 2017
Bijaya Mishra, wife of A. Uday Bhashkar, resident of C/o S.K. Dash, K-40
Shyamli colony, P.O and P.S. Doranda, District- Ranchi
... Petitioner
Versus
1. Union of India through the Secretary of the Department of Ministry of Human
Resources department.
2. The Director Indian Institute of Management, Ranchi, P.O. and P.S. Kanke,
District- Ranchi ... Respondents
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Indrajit Sinha, Advocate
: Mr. Akhouri Awinash Kumar, Advocate
For the Respondents : Mr. Prashant Pallav, Advocate
: Ms. Shivani Jaluka, Advocate
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JUDGMENT
C.A.V. on 01st December 2023 Pronounced on 30th January 2024
1. Heard the learned counsels for the parties.
2. This writ petition has been filed for the following reliefs:
"That by way of this instant writ application the petitioner prays for an appropriate writ(s)/order(s)/direction(s) for quashing the order dated 16.10.2017 passed by the Ld. Respondent no.2 whereby and whereunder has found that petitioner to have committed a major misconduct and passed an order for removal from service which shall not be a disqualification for future employment under the government under rule 14 of CCS (CCA rules 1965) and the penalty was imposed upon the petitioner with immediate effect. And or The petitioner further prays for an appropriate writ(s)/order(s)/direction(s) for which the petitioner may be found entitled by your lordships and your lordships may pleased to pass any other order or orders which the petitioner may deem fit and proper in the facts and circumstances of the case."
3. The records of the case indicate that the notices issued to the private respondent were validly served but nobody has entered an appearance on behalf of the private respondent. The arguments of the parties have been recorded in order dated 01.12.2023.
4. Arguments of the Petitioner A. The learned counsel for the petitioner has submitted that the petitioner never made any complaint in the Committee Against 2 Sexual Harassment (CASH). Only a complaint was lodged with the police and a copy of the same was forwarded to the Director who suo-moto referred the matter to CASH. The learned counsel has also referred to page no. 13 of I.A. No. 5183 of 2023 which is a letter dated 30.07.2014 and submits that it has been specifically mentioned therein that although no written or verbal complaint has been given by the petitioner regarding sexual harassment by the private respondent to the Administration Department, but several newspapers had reported that the complaint was filed by the petitioner against the private respondent in Kotwali Police Station. Because of the same, a recommendation was made to the sexual harassment committee of IIM Ranchi to investigate the matter and give its report to the Director, IIM Ranchi at the earliest. B. Learned counsel further submits that when notices were issued by CASH, the petitioner had strongly objected to the constitution of the Committee in as much as she alleged that two members of the Committee had overheard the altercation between the petitioner and the private respondent. The learned counsel has referred to page no. 26 of the said interlocutory application whereby the objection was raised. The learned counsel has also submitted that in the said letter the petitioner had also stated that she was forced to state although she never wanted to do so because she had already objected to the constitution of the CASH Committee.
C. The learned counsel further submits that the CASH Committee recorded in the report that the petitioner could not substantiate the allegation made against the private respondent and also that the allegation was incorrect but the same by itself would not have called for any disciplinary proceeding against the petitioner in as much as an inquiry in terms of section 14 of the Sexual Harassment of the Women at Workplace (Prevention, Prohibition & Redressal) Act 2013 was required to be done. He has submitted that as per the 1st proviso of section 14(1), it has been made clear that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under section 14 for it. The learned counsel also submits that to proceed under section 14, the second proviso to section 14 (1) provides further that malicious intent on the part of the complainant shall be established after an inquiry by the procedure prescribed before any action is recommended. The learned counsel submits that no exercise in terms of the second proviso to section 14 has been undertaken. This is apparent from the fact that the CASH report itself had recommended action against the petitioner. The learned counsel has submitted that the inquiry in terms of the second proviso is a condition precedent for taking any action against the complainant to find out if the complaint was malicious or the complainant knew it to be false or the aggrieved woman or any person making the complaint had produced any forged or misleading document. The learned counsel has submitted that it was a simple case where the petitioner could not substantiate her 3 allegation against the private respondent and accordingly, the entire proceeding initiated against the petitioner is vitiated and is void ab initio. He has reiterated that the proceeding is contrary to the procedure prescribed under section 9 as well as the procedure prescribed under section 14. This is over and above the fact that an allegation of bias was made against the committee constituted under CASH. The learned counsel has raised the following grounds for consideration: -
i. That having regard to the fact that the petitioner had not made any complaint in terms of section 9(1) of the Act of 2013 to the Internal Committee or the Local Committee, the finding returned by the CASH regarding the falsity of the complaint to the Director, IIM, Ranchi could not be the basis of initiation of proceeding in exercise of powers under section 14 of the Act of 2013 and hence the entire proceeding and the impugned order are without jurisdiction.
ii. That the filing of the final form by the Police and consequent acceptance by the Ld. Trial Court were not relevant factors for consideration and more so in view of the subsequent developments which have taken place during the pendency of the writ petition viz. passing of order dated 13.09.2019 in Cr. Rev. No. 583 of 2016 by this Hon'ble Court setting aside the order dated 29.11.2014 passed by the Ld. CJM, Ranchi whereby the Final Form was accepted.
iii. That the disciplinary proceedings were conducted in an unfair and biased manner and the authorities had already reached to the conclusion of the petitioner's guilt at the time of issuing the show cause notice dated 08.01.2016.
iv. That the constitution of CASH was illegal and in contravention of the provisions of section 7 of the Act of 2013.
v. That the imposition of punishment of removal from service is harsh and grossly disproportionate to the charges.
D. The learned counsel for the petitioner has also submitted that show cause itself referred to the filing of the criminal case which had no bearing in the matter of disciplinary proceeding. The learned counsel has also referred to the show cause to submit that the show cause itself was issued with the pre-determined mind.
5. Arguments of the Respondents I. The learned counsel appearing on behalf of the other respondents has vehemently opposed the prayer of the petitioner and has submitted that the scope of interference in the matter of disciplinary inquiry is very limited under Article 4 226 of the Constitution of India. The learned counsel has also submitted that the required procedure has also been followed in the present case therefore there is no procedural lapse. The learned counsel while replying to the points raised by the petitioner in connection with section 9 has submitted that the petitioner had appeared before the Sexual Harassment Committee. Once the Director received the complaint made by the petitioner before the police, it was incumbent upon the Director to refer the matter before the Sexual Harassment Committee which was duly done and thereafter the notice was issued to the petitioner. The petitioner had appeared and got her statement recorded and thereafter she had stated that she would cooperate with the proceeding but she has objections about the constitution of the Committee. To address such grievance of the petitioner, the Committee had ensured that the entire proceeding is recorded through Video and the same having been done, the petitioner cannot have any grievance about the allegation that the Committee was biased.
II. The learned counsel has also submitted that the internal Committee is a permanent committee and merely because one or the other person had heard the altercation, the same does not call for reconstitution of committee and merely one or the other persons had overheard the altercation the same cannot be a ground to say that the Committee was biased. However, it is not in dispute that no verbal or written complaint was made by the writ petitioner before the Sexual Harassment Committee.
III. About section 14, the learned counsel for the respondents has submitted that the necessary inquiry was already done by the CASH. The learned counsel has submitted that the CASH in its report held that the allegation against the private respondent was not substantiated and was incorrect has also made a recommendation for taking disciplinary action against the petitioner in terms of the service rules and there is no violation of section 14 of the aforesaid Act of 2013. The learned counsel has also submitted that the CASH Committee report should be read as a whole and the incorrect allegation was actuated with malice therefore there is no procedural irregularity in the matter and the case does not call for any interference. The learned counsel has also submitted that there is no jurisdictional error in the entire proceeding and also in the final order which is impugned in the present proceeding.
6. Findings of this Court
7. The petitioner was a Professor at Indian Institute of Management (IIM) at Ranchi.
8. The foundational facts of the case are not in dispute.
59. The FIR filed by the petitioner regarding sexual harassment and the proceedings before the Committee Against Sexual Harassment (CASH) A. The petitioner filed an F.I.R against her colleague namely Professor S. Bera alleging sexual harassment at workplace and simultaneously informed the respondents. The FIR was registered under section 354(A)/509 of IPC. The contents of the FIR dated 24.07.2014 is as under: -
"To The Station-in-charge Gonda Police Station Ranchi Subject: Complaint for sexually harassing me by a co-worker, Prof.Sasadhar Bera Sir, I am a professor working in IIM Ranchi which is situated in Suchana Bhawan, Kanke Road, Ranchi. I am lodging a complaint against a colleague Prof Sasadhar Bera working in IIM Ranchi who has been using indecent language and inappropriate body language. He is also throwing tantrums like calling me Bitch (Me Dog, in Bangla) while I am sitting in my room and passing through corridor because his office is right opposite to my office. These instances affect the dignity of a lady Professor in an Institute of repute like an IIM. This episode is occurring since last two weeks.
I made a complaint to the Director, Head of the Institution on 17th July 2014 against such misbehaviour. The same day Prof Sasadhar Bera came and sought oral apology saying 'sorry' but he has not changed his behaviour and is continuing with his indecent behavour. The instances are hitting under the belt and constitute "sexual harassment" as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Act, 2013). I am going through tremendous mental trauma and anguish which is affecting my health and personal life and not able to concentrate on my work and research at the behest of the Prof Sasadhar Bera.
I request you (the authorities) to take immediate and necessary action against Prof. Sasadhar Bera.
Thanking you.
Yours sincerely.
Prof. Bijaya Mishra IIM Ranchi Copy to:
Director, IIM Ranchi Director General of Police, Jharkhand Chairperson, National Commission for Women Cabinet Minister, MHRD, Govt. of India"
B. Upon receipt of the information the matter was placed before the Director In-charge IIM, Ranchi mentioning that although no written or verbal complaint was made by the petitioner regarding sexual harassment by Professor S. Bera to the administration department but a number of newspapers had reported that a complaint has been filed by the petitioner against Professor S. Bera in the Kotwali Police Station and a copy of the police complaint was attached. Consequently, the Vice President (Administration) recommended that the matter be placed before the Committee against sexual harassment of IIM, Ranchi to investigate and give its report and on 30.07.2014 the Director In-charge 6 Administration forwarded this fact to the committee against sexual harassment for necessary investigation and report. C. Thus, it is clear that the writ petitioner did not file any complaint either oral or written before the Committee Against Sexual Harassment (hereinafter referred to as CASH), but when the matter was brought to the notice of the Director In-charge of IIM, Ranchi he forwarded the matter to CASH for necessary investigation and report. D. The matter was taken up by CASH on the very next date i.e. 01.08.2014 and the members present were Prof. Manju Bhagat, Prof. Amarendu Nandy, Prof. Janaki Jagan and Prof. Tanusree Dutta (Chairperson of CASH). On the very first date the CASH decided to nominate Mr. Jayanta Tripathy as an independent witness to the proceedings and it was also decided that the entire proceeding would be recorded to ensure a transparent and fair trial and the petitioner was directed to be present before CASH on 05.08.2014 at 10.00 a.m. E. On 05.08.2014, the petitioner made objections with respect to two members of CASH by stating that they were present when the alleged incident which she had reported had taken place. The petitioner clearly mentioned that with the current members of the CASH committee, unbiased and neutral investigation was not possible and also insisted that when outside official is included for the purpose of transparency, he should be from the institute who is not connected/known to the members of CASH committee, Director, Faculty and Staff. F. In response to aforesaid objection the CASH issued a letter dated 05.08.2014 itself seeking following clarification:
"1. Please mention the names of the two members of the CASH Committee who were witness to the 'reported incidents', with supporting evidence.
2. Which reported incidents are you referring to in your letter as the Committee has not received any report from your side as mentioned in our letter No.IIMR/CASH/II-3/2014 dated 1st August, 2014.
3. To whom did your report the matter? And when?"
G. The CASH asked the petitioner to be present on 06.08.2014 at 10.00 a.m. to give her statement which would be reduced in writing in presence of an independent witness and the entire proceeding will be videographed to ensure transparent and fair process. The petitioner was also directed to produce copy of the complaint submitted by her to the Kotwali police station as IIM, Ranchi had not received any complaint 7 regarding sexual harassment from the petitioner. The Committee also requested the petitioner to provide evidence on the alleged sexual harassment.
H. On 06.08.2014, the petitioner responded to the communication dated 05.08.2014. With regard to the aforesaid Point No.1, the petitioner stated that Prof. Tanusree Dutta and Prof. Amarendu Nandy were present when the incident had occurred and also stated that majority of faculty members were present in the meeting on 17.07.2014 when the 2nd incident happened, and requested to change the constitution of the CASH. With regard to Point Nos.2 and 3, the petitioner stated that the incidents were reported to the Director IIM, Ranchi personally by her in a one-to-one meeting, but the Director discussed the issue very lightly. She also stated that the prevailing circumstances and the atmosphere prevailing in the IIM, Ranchi was not conducive for her to work and being continually cornered at every opportunity and at the behest of Prof. S. Bera, she was forced to seek the help of police and offer help to her and, therefore, she chose to report to the police and had no faith and trust in the redressal system through CASH at IIM, Ranchi. However, the petitioner stated that she would fully cooperate with the investigating team (CASH) and will continue to cooperate to the best of her ability to get justice. In the said letter dated 6th August 2014 the petitioner clearly stated while objecting to the constitution of CASH as follows: - "... Therefore, I am still not convinced and comfortable on the independence and neutrality of the CASH. But I am forced to give my statement before CASH, even after my representation requesting the change of the constitution of CASH in the specific case." Along with the said letter dated 06.08.2014 the petitioner enclosed a copy of the complaint. Having protested to the constitution of CASH and also having said that she had no faith and trust in CASH vide letter dated 06.08.2014 filed before CASH, on the same day the petitioner got her statement recorded.
I. After having taken the statement of the petitioner, vide letter dated 07.08.2014, the CASH called upon Professor S. Bera asking him to be present on 08.08.2014 for recording of his statement. Professor S. Bera filed a statement in writing on 11.08.2014 and also separately got his statement recorded on the same day which are contained in page no. 39 8 and 104 respectively of I.A No. 5183 of 2023 filed by the respondents bringing on record the relevant proceedings before CASH. Professor S. Bera in his statement, inter alia, relied an e-mail communication by Prof. Amarendu Nandy (member of CASH) and also stated that Prof. Tanusree Dutta (chairman of CASH) was a witness to the incident. However, he denied the allegations and made counter allegations. J. The records of the case indicates that there have been repeated communications from the side of the writ petitioner raising aforesaid objection to the constitution of CASH regarding two witnesses being members of the CASH and the petitioner has been insisting on re- constitution of the CASH. The last communication in that regard from the side of the petitioner is dated 25.08.2014 which clearly stated that the current CASH had two members who were glaring witnesses to at least two of such incidents and asserted that committee which is unbiased and independent can only do justice to her and expressed her objection once again with regard to the way CASH had looked into the whole affair. It is important to note that even as per the statement of Professor S. Bera recorded on 11.08.2014 Prof. Tanusree Dutta, was a witness and he had also referred to e-mail of Prof. Nandy, both of them were members of CASH whose presence as member of CASH was being throughout objected by the petitioner. The statement of Prof. S. Bera recorded before the CASH at paragraph no.9 on 11.08.2014 at page no.104 of the interlocutory application being I.A. No.5183 of 2023 is quoted as under:
"9. I never used any abusive language against Prof. Bijaya Mishra. You can get the statement from other lady faculties (Prof. Mousmi Padhi and Prof. Tanusree Dutta) regarding this."
K. The CASH lastly met on 25.08.2014 wherein the opinion of the Committee on the enquiry which was conducted were discussed and put in writing. The proceeding sheet of the Committee has been placed by the respondents.
L. Thus, in spite of serious objections raised by the petitioner regarding constitution of CASH, neither any steps were taken to reconstitute the CASH nor the two members of CASH, namely, Prof. Amarendu Nandy and Prof. Tanusree Dutta (chairman of CASH) recused themselves from 9 being members of the CASH for the enquiry in the matter of allegations made by the petitioner. Having raised serious objections regarding the constitution of CASH and having got her statement recorded before CASH with the objection, the petitioner did not participate in the proceedings and raised repeated protests.
M. Ultimately, the CASH submitted a report dated 05.09.2014. The conclusions of the CASH are as under:
"4. Conclusion 4.1. The Committee having perused the statements of the complainant (Prof. Bijaya Mishra), the defendant (Prof. Sasadhar Dera), the witnesses, and evidence submitted to the Committee by the above parties, the Committee is of the opinion that Prof. Mishra's alleged sexual harassment against Prof. Bera is not substantiated.
4.2. The Committee deliberated and reached to the conclusion that the allegations of Prof Bijaya Mishra against Prof Bera are incorrect. Based on the findings of the proceedings and evidence received, the Committee finds Prof Bera not guilty of the alleged sexual harassment against him by Prof. Mishra. The Committee has reached to this conclusion, after giving enough and uniform opportunities and time to all the parties, especially to the complainant (refer to the proceedings in Section 2) for her to substantiate the allegations and produce any whatsoever.
4.3. Prof. Mishra preferred to file her complaint in the police station. The matter was highlighted by the media, which has caused a substantial damage to the Institute's image, thereby creating adverse impact on a wide range of stakeholders associated with the Institute. The Committee feels that Prof. Mishra could have explored internal grievance redressal process that any member of the IIM fraternity is privileged to.
4.4. At this point, it may be pointed out that in her statement and in her emails to the Committee she has repeatedly expressed her distrust in the neutral functioning of the Committee, despite the Committee assuring her that the entire proceedings will be videotaped (this arrangement was specially made to make the proceedings fair and transparent) and reduced to writing, and shall be countersigned by her. Another special arrangement was made by the Committee to have an independent witness in the whole proceedings to ensure neutrality in recording the statements given by different parties. Despite all such arrangements made and communicated to her repeatedly, the complainant showed no faith in the Committee. Except for one occasion (recording her initial statement), Prof. Mishra neither turned up before the Committee with evidence or witness, nor cooperated with the Committee. This has also resulted in wastage of man-hours of the Committee and delay of the process. The Committee has otherwise received full cooperation from all other parties.
4.5. The Committee recommends that based on the above, necessary disciplinary action may be initiated against Prof. Bijaya Mishra by competent authority of the Institute."
10. Section 2(a) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the Act of 2013) defines "aggrieved woman" to mean in relation to a workplace, a woman, of any age whether employed or not, who alleges to 10 have been subjected to any act of sexual harassment by the respondent. The complaint of sexual harassment has been provided for in Section 9 of the Act of 2013 which provides that any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee and it further provides 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 woman for making the complaint in writing. Sub- Section 2 of Section 9 of the Act provides that where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under Section 9.
11. In the present case, the petitioner is an educated woman and a Professor she had filed a criminal case against the Professor Sasadhar Bera vide FIR No. 679/14 dated 24.07.2014 for alleged offence under Section 354(a)/509 of the Indian Penal Code. The petitioner had forwarded a copy of the complaint made before the police to the Director of IIM, Ranchi who immediately referred the matter to the Committee Against Sexual Harassment (CASH); admittedly, the petitioner did not file any complaint before the CASH but the CASH issued notice to the petitioner upon being asked by the Director of IIM, Ranchi to enquire and report; the petitioner objected to the constitution of the Committee by inter alia stating that two of the Committee members were witnesses to the alleged incident and requested for changing the constitution of the Committee but no steps were taken to re-constitute the Committee; however, finding no option and upon raising her protest regarding constitution of CASH, the petitioner had examined herself before the CASH; filed a copy of complaint filed before the police and her statement was recorded and thereafter, the Committee proceeded with the matter and issued notice to Prof. S. Bera. Thereafter, the petitioner did not participate in the proceedings and repeatedly protested against constitution of CASH and asserted that on account of witnesses to the incident being members of CASH she had no faith and confidence in CASH.
12. The petitioner repeatedly made objection to the constitution of the Committee. In fact, from perusal of the materials produced before this Court, it is apparent that the objection with regard to constitution of the Committee was taken note of by CASH. The CASH took cognizance of the objection raised by the petitioner with regard to members of CASH and issued a letter 11 dated 05.08.2014 asking the petitioner to mention the names of two members of CASH Committee who were the witnesses to the reported incident. In response to which the petitioner vide letter dated 06.08.2014 stated that Professor Tanushree Dutta and Professor Amarendu Nandy were present when the incident had occurred and had also stated that majority of faculty members were present in the meeting on 17.07.2014 when the second incident happened, and requested to change the constitution of the CASH Committee. The petitioner was earlier directed to remain present on 06.08.2014 to give her statement which was to be reduced in writing in presence of independent witness and the entire proceeding was to be videographed to ensure transparent and fair process. The petitioner got her statement recorded on 06.08.2014 which was forwarded to Professor S. Bera vide letter dated 07.08.2014 seeking his presence on 08.08.2014 for recording his statement. The petitioner had repeatedly raised the aforesaid point regarding objection to the constitution of the Committee, questioned the fairness and independence of the CASH Committee and last such objection was dated 25.08.2014.
13. This Court finds that on the one hand the CASH Committee did not take any step to re-constitute the Committee and tried to justify their action and establish their fairness by recording a finding that the petitioner had repeatedly expressed her distrust in the neutral functioning of the Committee, despite the Committee assured her that the entire proceedings will be videotaped (this arrangement was specially made to make the proceedings fair and transparent) and reduced to writing, and shall be countersigned by her and that another special arrangement was made by the Committee to have an independent witness in the whole proceedings to ensure neutrality in recording the statements given by different parties. The Committee recorded that despite all such arrangements made and communicated to the petitioner repeatedly, the petitioner showed no faith in the Committee. It has also been recorded that except for one occasion (recording her initial statement), the petitioner neither turned up before the Committee with evidence or witness, nor cooperated with the Committee and the Committee had otherwise received full cooperation from all other parties. This Court also finds that the petitioner had good reasons for not participating in the proceedings before the CASH having objected to constitution of the CASH which included two persons as members who were witness to the incident.
1214. The law is well settled that justice is rooted in confidence and justice is the goal of a quasi-judicial proceeding also. If the functioning of a quasi- judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the manner the proceedings are conducted. Justice is not only required to done but also seen to have been done. This Court is of the considered view that the continuation of two members of the CASH who were witnesses to part of the allegation made by the petitioner vitiates the proceedings and cannot be said to be just and fair. Merely because the proceedings were videographed, the same does not cure the defect. The two members of CASH, who were potential witnesses as per both the parties could not have been called upon to depose before the CASH by either party under any circumstances.
15. The aforesaid facts clearly demonstrates that the petitioner did not submit to the jurisdiction of CASH who had taken upon the task of inquiry at the instance of the Director of IIM. In the aforesaid circumstances, initial recording of statement of the petitioner by CASH and filing of a copy of complaint filed before police at the instance of CASH who had objected to the constitution of CASH at the threshold and even on the day when the statement was recorded, it cannot be said that the petitioner ever filed any complaint against CASH. In a matter relating to sexual harassment at work place the petitioner had a right to file complaint before police or before CASH or before both but the petitioner filed the complaint only before police and had good reasons not to file complaint before CASH and not to submit to the jurisdiction of CASH.
16. Developments after submission of report by CASH and initiation of disciplinary proceedings.
I. After submission of the report by CASH, in the criminal case instituted by the petitioner, the police submitted a final form dated 16.10.2014 stating that the case was untrue. The concerned court of Chief Judicial Magistrate accepted the final form vide order dated 29.11.2014. II. On the basis of the report of the CASH and the developments in the aforesaid criminal case a disciplinary proceeding was initiated against the petitioner by issuing a show cause dated 08.01.2016. The contents of the show cause are as under:
"Subject: Show Cause Notice 13 Dear Prof. Mishra,
1. A complaint dated 24/7/2014 was received by the Director IIM Ranchi stating that Prof Sasadhar Bera of IIM Ranchi harassed you sexually.
2. IIM Ranchi being the employer constituted a committee to investigate into the matter, as per the provisions of Committee against Sexual Harassment (CASH) into the charges as levelled by you against Prof. Sasadhar Bera.
3. The said committee received a copy of the Complaint Dated 24.7.2014 filed by you against Prof. Sasadhar Bera accusing him of sexual harassment and investigated the matter wherein after giving ample opportunity to you, and after making proper enquiry, the committee concluded that the allegation of sexual harassment levelled by you against Prof. Sasadhar Bera is not substantiated. It also concluded that the allegations levelled by you against Prof. Sasadhar Bera are not correct.
4. The finding of the Committee is as follows: "The committee having perused the statement of the Complainant (Prof. Bijoy Mishra), the defendant (Prof. Sasadhar Bera), the witness and evidence submitted to the Committee by the above parties, the committee is of the opinion that Prof. Mishra's alleged sexual harassment against Prof Bera is not substantiated." "The Committee deliberated and reached to the conclusion that the allegations of Prof. Bijoy Mishra against Prof Bera are incorrect. Based on the findings of the proceeding and evidence received, the committee finds that Prof Bera not guilty of the alleged sexual harassment against him by Prof Mishra. The committee has reached to this conclusion after giving enough and uniform opportunities and time to all the parties especially to the Complainant for her to substantiate the allegations and produce any witness whatsoever."
5. The allegations made by you against Prof. Sasadhar Bera have also been found to be false by the Police authorities vide Final Form/Report No.63243 Dated 16/10/2014.
6. In the background of above enquiries and conclusions, it is evident that you made a false and malicious complaint against Prof Sasadhar Bera. As per Section 14 of Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressed) Act, 2013, there is provision for taking disciplinary action against any person for making false complaint.
7. You are hereby required to submit your written explanation, as to why appropriate disciplinary action should not be initiated against your for making the false and malicious complaint against Prof Sasadhar Bera.
8. The written reply must reach the undersigned within 72 hours from the receipt of this letter failing which it would be presumed that you have no explanation.
In that event, the Management will take the appropriate step without further reference to you."
III. Upon perusal of the aforesaid show cause, it is apparent that the show cause was based on the conclusions of the CASH as well as the fact that the allegations made by the petitioner against Professor S. Bera was found to be false by the police authorities who submitted final form report on 16.10.2014 which was duly accepted by the court. The petitioner was asked to file written explanation as to why appropriate disciplinary action should not be initiated against her for making false 14 and malicious complaint against Professor S. Bera. The enclosures to the show cause and Article of Charges are quoted as under:
"Annexure - 1 Statement of Article of Charges framed against Prof. Bijaya Mishra Article of Charge I That Prof. Bijaya Mishra levelled false allegation against her co- employee Prof. Sasadhar Bera for the crime of indulging in Sexual harassment at work place, being the Indian Institute of Management Campus at Ranchi dated July 24, 2014. This act constitute a case of gross misconduct, indiscipline and unbecoming of a Professor of an Elite Institute, of the likes of Indian Institute of Management.
Article of Charge II That Prof. Bijaya Mishra conspired against her co-employee, Prof. Sasadhar Bera to somehow or the other implicate him in false allegation, and to that extent even lodged false criminal case against him bringing on the allegation of sexual harassment at work place. This act constitutes a case of gross misconduct, indiscipline and unbecoming of a Professor of Elite Institute, such as Indian Institute of Management.
Annexure - 2 Statement of imputation of misconduct or misbehaver in support of the Article of charge framed against Prof. Bijaya Mishra Article of charge I That Prof. Bijaya Mishra has made false allegation against Prof. Sasadhar Bera of a heinous crime like sexual harassment at work place. This act of the said lady is gross misconduct indiscipline and unbecoming of a professor of an Elite Institute of likes IIM. Article of charge II That Prof. Bijaya Mishra has conspired against Prof. Sasadhar Bera of a heinous crime like sexual harassment at work place, and made a false complaint before the police, which resulted in lodging of F.I.R. and initiation of criminal prosecution, however, the said allegation was declared as baseless and false, and the police has submitted final form before the court of competent criminal jurisdiction, which dropped the entire case, and thus the lady is being charged of falsely implicating a co-employee in a false criminal case. This act of the said lady is gross misconduct, indiscipline and unbecoming of a professor of an Elite Institute of likes IIM.
ANNEXURE 3 List of documents
1. The Report of Committee Against Sexual Harassment dated September 05, 2014 (13 pages)
2. Final Report No. 886/14 of Kotwali Police Station, Ranchi, dated 16.10.2014, regarding FIR No. 679/14 dated 24.07.2014 (5 pages)
3. Order of CJM, Ranchi dated 29.11.2014 (2 pages) List of witnesses
1. Prof. Sasadhar Bera
2. Prof. Shibashish Chakrabarty
3. Prof. Mousumi Padhi"
IV. The petitioner submitted her written statement of defence on 04.05.2016 which was found to be unacceptable and consequently a departmental enquiry was initiated against the petitioner vide letter 15 dated 10.05.2016 on the aforesaid charges and the enquiry officer was appointed.
V. The enquiry officer vide his report dated 08.05.2017 found that only one charge, that is, charge no. 1 was proved whereas the second charge which related to conspiracy could not be established as it was found that there was no other person with whom the petitioner could be said to have conspired and the charge of conspiracy cannot be established only against a single person. Findings of the enquiry officer are quoted as under:-
1) Charge No-1.
From Exhibit-2 it is clear that Kotwali PS FIR No-679/14 dated 24.7.2014 u/s 354A/509 IPC was lodged on the written complaint of Prof. Bijaya Mishra alleging sexual harassment against Prof. Sasadhar Bera. During investigation the case was found to be false and Final Report False was submitted by the Police on 16.10.2014. (Exhibit-3). The Leaned CJM Ranchi accepted the Final Report False submitted in this case (Exhibit-4).
Thus Exhibit-2, Exhibit-3 and Exhibit-4 are sufficient proof that the charges of sexual harassment levelled by Prof. Bijaya Mishra against Prof. Sasadhar Bern were false. This fact is also supported by oral statements of the Prosecution Witnesses Prof. Sasadhar Bera and Prof. Shibashish Chakraborty as well as report of Committee Against Sexual Harassment, IIM Ranchi (Exhibit-1) which found the charges as not 'substantiated' (para 4.1 of conclusion) and gone on to clarify that they were 'untrue' and that Prof. Sasadhar Bera was 'not guilty' (Para-4.2 of conclusion).
Lodging of false complaint by a faculty of IIM against another faculty is definitely a case of gross misconduct, indiscipline and unbecoming of a Professor of an elite institute, of the likes of Indian Institute of Management.
Hence, I find Charge No-1 that "Prof. Bijaya Mishra levelled false allegation against her co-employee Prof. Sasadhar Bera for the crime of indulging in Sexual harassment at work place, being the Indian Institute of Management Campus at Ranchi dated July 24, 2014. This act constitutes a case of gross misconduct, indiscipline and unbecoming of a Professor of an Elite Institute, of the likes of Indian Institute of Management" as Proved.
2) Charge No-2.
Charge No-2 is that "Prof. Bijaya Mishra conspired against her co- employee, Prof. Sasadhar Bera to somehow or the other implicate him in false allegation, and to that extent even lodged false criminal case against him bringing on the allegation of sexual harassment at work place. This act constitute a case of gross misconduct, indiscipline and unbecoming of a Professor of Elite Institute, such as Indian Institute of Management."
16But there is no evidence to indicate that any other person was involved in the levelling of charges by Prof. Bijaya Mishra against Prof. Sasadhar Bera which has been proven false. No conspiracy can be hatched by a single person and must have a co-conspirator who is missing in this case.
Hence Charge No-2 is found to be "not proved".
VI. The copy of the enquiry report dated 08.05.2017 was made available to the petitioner by a letter dated 03.08.2017 and she was advised to submit representation and accordingly she submitted her representation on 17.08.2017 which was found to be unacceptable and consequently a decision was taken to pass an order of penalty for the misconduct proved as a major misconduct. Accordingly, a show-cause notice dated 07.09.2017 was served on the petitioner calling upon her to show cause as to why a major punishment of dismissal be not passed against her. The petitioner submitted her show-cause through a reply letter dated 21.09.2017.
17. Some of the portion of findings and reasons recorded by the in the impugned order is quoted as under:
"3. After perusing your reply dated 21 September 2017, I am of the view that the proposed punishment of 'dismissal' be not imposed, in view of your plea that this will have harsh impact on your future professional career. It is at the same time not deniable that I find myself convinced with the report submitted by the Inquiry Officer. The reply that has been submitted by you majorly attacks the report of the Inquiry Officer on the ground that the report of Committee Against Sexual Harassment (CASH) is erroneous and has been concluded in violation of the principles of natural justice. This point has been thoroughly examined by me and I have tried to examine the inquiry report excluding the conclusions of CASH that have been brought on record by the Inquiry Officer. This exercise has been performed only to satisfy myself that no injustice may happen, otherwise, I do not find anything wrong with the report of CASH. Even after excluding the conclusions of CASH report drawn against you which has been made part of the report of the Inquiry Officer, I find that the case is conclusively made out against you. There is sufficient evidence as well as the order of CJM Court which persuades me to reach a conclusion that even if devoid of CASH report Charge No.1 is proved against you.
6. The submissions made by you that one Criminal Revision 583 of 2016 is pending before the High Court of Jharkhand with reference to the order dated 29.11.2014 of the Learned CJM Ranchi does not persuade me to not take into account the order dated 29.11.2014 which has been passed by a court of competent criminal jurisdiction. This order stands correct as on date, and therefore, reliance upon it cannot be said to be erroneous in law.
8. As far as providing the copy of video tape is concerned, it is to be made clear that the disciplinary authority has not placed any reliance on the video tape to come to any conclusion as evident from the inquiry report. The videography was only a precautionary step to ensure that everything has been fair during the inquiry. Therefore, I do not find it necessary to provide a copy of the same to the delinquent, if the need and purpose of the same is not being clearly reasoned out."17
18. The authority refused to provide a copy of the videotape inspite of demanded by the petitioner in her show cause reply on the ground that the disciplinary authority had not placed any reliance on the videotape to come to any conclusion as was evident from the inquiry report and that the videography was only a precautionary step to ensure that everything was fair during inquiry. As per the case of the respondents the entire proceeding was videotaped to ensure transparency in the proceedings but even the same was denied to the petitioner. Even if the disciplinary authority had not placed any reliance on the videotape to come to any conclusion the same could certainly be relied upon by the petitioner to respond to the findings of the enquiry officer. Denial of the videotape under the aforesaid circumstances certainly amounts to denial of access to the material which formed part of the enquiry and thereby violates the principles of natural justice.
19. The disciplinary authority after perusing the reply to the show cause notice concluded that misconduct of the petitioner calls for punishment of removal for service by the impugned order dated 16.10.2017 on the following grounds: -
a) The misconduct performed by you lower the confidence of co-
employees in developing healthy working atmosphere in the campus, and further would encourage others to indulge in such kind of activities which would deteriorate the working culture of Institute.
b) The provision to curb sexual harassment at work place has been passed by the Parliament to protect the interest of women at work place, but in the inquiry it is found that this means has been used to harass the co-employees, hence it be dealt with strictly, or else it will convey wrong message.
c) The position of delinquent in the instant case calls for such a measure as she is Professor and teacher of the students, and if she is allowed to get away from a misconduct, it will register a wrong impression in the minds of students who are here to learn both professional skills and ethical virtues. It is thus not in their interest that person with such a proved allegations be allowed to continue in the service. The punishment of removal is being awarded in view of the fact that the delinquent herself is an academician and punishment of dismissal may prove hash on her career and therefore, keeping a sympathetic view punishment of "Removal from Service which shall not be a disqualification for future employment under the Government" is awarded.
20. This Court also finds that right from the issuance of show cause in the matter of disciplinary proceedings till the findings of the enquiry officer, the allegation of filing a false complaint against the petitioner is heavily based on 18 the materials relating to the criminal case filed by the petitioner, statement of witnesses recorded by the police, submission of final form by the police stating that the incident is untrue and the acceptance of the final form by the concerned court.
21. The findings of the enquiry officer as quoted above is heavily based on exhibits relating to the criminal case, that is Exhibit-2 (FIR filed by the petitioner), Exhibit - 3 (FINAL FORM submitted by the police) and Exhibit - 4 (order of the court accepting final form) which are all concerning the criminal case. In the investigation in the criminal case as recorded in the final form, the police have referred to the statement of Prof. Amarendu Nandi, Prof. Tanusree Dutta who stated before the police that the allegation made by the petitioner was false and, in the CASH, these two persons were member and chairman respectively.
So far as Exhibit - 7 referred to in the findings of the enquiry report the same is the copy of e-mail dated 23.07.2014 sent by Prof. Sasadhar Bera to Prof. Nandi with copy to all faculty IIM Ranchi.
22. At this stage, it would be pertinent to set out the related provisions of the Act of 2013 and the Rules made thereunder, which are relevant for this case. Section 9 and 14 of the Act of 2013 read as under: -
9. Complaint of sexual harassment - (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:
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.
(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.
14. Punishment for false or malicious complaint and false evidence.-(1) Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved 19 woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub- section (1) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed:
Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section:
Provided further that the malicious intent on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended.
(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.
Rules 9 and 10 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 are also relevant and hence are being reproduced hereinbelow:
9. Manner of taking action for sexual harassment.- Except in cases where service rules exist, where the Complaints Committee arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be, to take any action including a written apology, warning. reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counselling session or carrying out community service.
10. Action for false or malicious complaint or false evidence.-
Except in cases where service rules exist, where the Complaints Committee arrives at the conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing It to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or District Officer, as the case may be, to take action in accordance with the provisions of Rule 9.
23. It is to be examined as to whether the condition precedent for initiating a proceeding under section 14 of the Act of 2013 was satisfied to initiate a proceeding against her. The law is well settled that in order to exercise 20 jurisdiction in respect of any matter the existence of jurisdictional facts is mandatory.
24. The CASH in its report has not returned a finding that the complaint was malicious or was made knowing the complaint to be false. The CASH only held that the allegations were not substantiated and that the allegations are incorrect. 'False complaint' is not the same as 'incorrect complaint'. The latter does not require any intention and the former expression envisages existence of intention with malice. Failure of a complaint to substantiate or provide adequate proof cannot be a subject matter of section 14 and the same has been expressly excluded by the first proviso to section 14(1). Likewise, to initiate a proceeding under section 14(1) of the Act of 2013 on the ground that the complaint acted with malicious intent, the same has to be established after an inquiry in accordance with the procedure prescribed, before any action is recommended. In the instant case neither any inquiry was initiated in this regard nor there is any such finding in the enquiry report of CASH so as to justify initiation of disciplinary proceedings against the petitioner under section 14(1) of the Act of 2013.Considering the aforesaid facts of this case, at best the conclusions of the CASH in favour of Prof. S. Bera can be said to be on account of the petitioner not able to substantiate her case.
25. Thus, in absence of any conclusive finding or charge that the complaint was "malicious" or the petitioner "made a complaint knowing it to be false"
no proceeding could have been initiated against the petitioner under section 14 of the Act of 2013. At best the case of the petitioner is covered by the first proviso to section 14 of the Act of 2013 which clearly provides that a mere inability to substantiate a complaint or inability to provide adequate proof need not attract action against the complainant under section 14. Considering the aforesaid facts and circumstances, the present case is out of the ambit of section 14 (1) of the Act of 2013. It is also important to note that in the instant case no inquiry as contemplated by the second proviso to section 14(1) of the Act of 2013 was conducted. Thus, Section 14(1) of the Act of 2013 did not apply and accordingly the disciplinary proceeding initiated against the petitioner was wholly without jurisdiction.
26. Further, the facts of this case would reveal that the FIR lodged by the petitioner culminated in filing of a report under section 173 Cr.P.C as "Untrue", which was accepted by the Court of CJM, Ranchi. The fact regarding pendency of the Revision Application being Cr. Rev. No. 583 of 21 2016 before this Court against the said order was within the knowledge of the Disciplinary Authority and is recorded in the impugned order dated 16.10.2017.
27. This Court is of the considered view that the respondents could not have relied upon the materials in relation to the criminal case instituted by the petitioner including the Final Form to hold her guilty of misconduct of filing a false complaint. The Criminal Procedure Code, 1973 and the Indian Penal Code, 1860 collectively provide for the action to be taken against a person who has made a false complaint to the Police. In the instant case, the police while submitting the final form has not made any recommendation for initiating a proceeding under section 182 or 211 of the Indian Penal Code nor the competent court had taken cognizance of the above offenses after ensuring compliance of section 195 of the Code of Criminal Procedure, 1973. Furthermore, during pendency of the writ petition, this Court vide an order dated 13.09.2019 passed in Cr. Rev. No. 583 of 2016 has set aside the order 24.07.2014 after finding "serious infirmities" in the said order dated 24.07.2014 and remitted the matter back for fresh consideration by the Chief Judicial Magistrate, Ranchi. Thus, the said ground does not exist anymore.
28. As a cumulative effect of the aforesaid findings, one of the crucial foundations of passing the impugned order of removal of petitioner by the disciplinary authority, that is, filing of a false criminal case, does not survive and hence impugned order also cannot survive. This is over and above the findings recorded by this Court as aforesaid that two witnesses to the incidents namely Prof. Amarendu Nandi, Prof. Tanusree Dutta, were the members of CASH out of four members and Prof. Tanusree Dutta, was in fact the chairman of CASH and both of them continued to remain members of CASH in spite of objections raised by the petitioner and the disciplinary proceedings were sequel to the report submitted by CASH. Further, it has already been held above that the condition precedent for initiating a disciplinary proceeding in terms of section 14 of the aforesaid Act of 2013 was itself not satisfied and also no disciplinary action could have been instituted against the petitioner by alleging that she had filed a false criminal case or she had approached the police by filing a criminal case in connection with allegation of sexual harassment instead of approaching the internal grievance redressal mechanism through CASH.
2229. Consequently, the impugned order dated 16.10.2017 passed by Director & Disciplinary Authority, Indian Institute of Management, Ranchi removing the petitioner from service is quashed and set aside and the petitioner is directed to be reinstated in service forthwith with all consequential benefits including continuity of service but back wages only to the extent of 50% to be remitted to the account of the petitioner within a period of 30 days from the date of receipt of a copy of this judgement. If the back wages are not paid within the stipulated time, the petitioner would be entitled to interest @6% per annum from the date of pronouncement of this judgment till payment.
30. This writ petition is accordingly allowed.
31. Pending interlocutory application, if any, stands closed.
(Anubha Rawat Choudhary, J.) Saurav/-