Madras High Court
Dr.A. Manimekalan vs The Registrar on 16 February, 2023
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and
W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
14.07.2023 27.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and
W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023
W.P.Nos.5764 and 8795 of 2023
Dr.A. Manimekalan
S/o G. Arunachalam,
Professor,
Department of Environmental Sciences,
Bharathiar University,
Coimbatore-641046. ... Petitioner
versus
1. The Registrar,
Bharathiar University,
Coimbatore-641 046.
2. Internal Complaints Committee (ICC)
Bharathiar University,
Coimbatore-641 046.
3. Dr. B. Sathiyapriya,
Assistant Professor,
Department of Environmental Sciences,
Bharathiar University,
Coimbatore-641 046.
1/31
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W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and
W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023
3. Mrs. D. Prabha,
Assistant Professor,
Department of Environmental Sciences,
Bharathiar University,
Coimbatore-641046. ... Respondents
W.P.No.7794 of 2023
Dr.A. Manimekalan
S/o G. Arunachalam,
Professor,
Department of Environmental Sciences,
Bharathiar University,
Coimbatore-641046. ... Petitioner
versus
1. The Registrar,
Bharathiar University,
Coimbatore-641046.
2. Internal Complaints Committee (ICC)
Bharathiar University,
Coimbatore-641046.
3. Dr. B. Sathiyapriya
Assistant Professor,
Department of Environmental Sciences,
Bharathiar University,
Coimbatore-641046.
4. Mrs. D. Prabha,
Assistant Professor,
Department of Environmental Sciences,
2/31
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W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and
W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023
Bharathiar University,
Coimbatore-641046.
5. Dr.N. Geetha,
Presiding Officer – ICC
Professor,
Department of Botany
Bharathiar University,
Coimbatore-641046. ... Respondents
W.P.No.20166 of 2023
Dr.A. Manimekalan
S/o G. Arunachalam,
Professor,
Department of Environmental Sciences,
Bharathiar University,
Coimbatore-641046. ... Petitioner
versus
1. The Registrar,
Bharathiar University,
Coimbatore-641046.
2. Internal Complaints Committee (ICC)
Bharathiar University,
Coimbatore-641046.
3. Dr. B. Sathiyapriya
Assistant Professor,
Department of Environmental Sciences,
Bharathiar University,
Coimbatore-641046.
3/31
https://www.mhc.tn.gov.in/judis
W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and
W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023
4. Mrs. D. Prabha,
Assistant Professor,
Department of Environmental Sciences,
Bharathiar University,
Coimbatore-641046.
5. Dr.N. Punithavalli,
Presiding Officer – ICC
Professor,
Department of Computer Application
Bharathiar University,
Coimbatore-641046. ... Respondents
PRAYER in W.P.No.5764 of 2023: Writ Petition has been filed under
Article 226 of the Constitution of India to issue a Writ of Certiorari to call
for the records of the 1st Respondent in his proceedings No.E1/Dr.AM/
Env.Sci./2023 dated 16.02.2023 and quash the same.
PRAYER in W.P.No.8795 of 2023: Writ Petition has been filed under
Article 226 of the Constitution of India to issue a Writ of Certiorari to call
for the records of the report of the 2nd Respondent dated 30.01.2023 and
quash the same.
PRAYER in W.P.No.7794 of 2023: Writ Petition has been filed under
Article 226 of the Constitution of India to issue a Writ of Declaration to
declare that the constitution of the Internal Complaints Committee
constituted by the 1st Respondent University and all its resultant proceedings
are null and void being against the provisions of the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
PRAYER in W.P.No.20166 of 2023: Writ Petition has been filed under
Article 226 of the Constitution of India to issue a Writ of Declaration to
declare that the constitution of the Internal Complaints Committee with the
5th Respondent as a Presiding Officer and all its resultant proceedings are
null and void being against the provisions of the Sexual Harassment of
4/31
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W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and
W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
For Petitioners : Mrs. N. Kavitha Rameshwar
[in all W.Ps.]
For Respondents : Mr. D. Ravichander
[in all W.Ps.] [for R1 & R2]
COMMON ORDER
1.(a) Writ Petition Nos.5764 and 8795 are filed to quash the 1st Respondent's proceedings in No.E1/Dr.AM/Env.Sci./2023 dated 16.02.2023 and report of the 2nd Respondent dated 30.01.2023 respectively.
1.(b) Writ Petition No.8795 and 20166 of 2023 are filed to declare that constitution of the Internal Complaints Committee constituted by the 1st Respondent University and all its resultant proceedings; and the 5th Respondent as a Presiding Officer of the Internal Complaints Committee and its resultant proceedings respectively are null and void being against the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
5/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023
2. Since all the writ petitions are related to suspension of the Petitioner and the facts and circumstance in all writ petitions are the common, these writ petitions are disposed of by way of this Common Order.
3. Brief facts leading to file all these writ petitions are as follows:
3.(a) The Writ Petitioner was initially appointed as Reader in the Department of Environmental Sciences in the 1st Respondent University on 02.02.2009 and completed his probation on 01.02.2011. Thereafter, he was re-designated as Associate Professor w.e.f. 01.02.2012 and thereafter promoted as Professor w.e.f. 01.02.2015. On 13.01.2021 he was placed as the Head of the Department in Environmental Sciences, until further orders.
Since then he has been working as Head of the Department in the Department of Environmental Sciences. One Dr.P. Siddhuraju is the senior most professor in the Department of Environmental Sciences and the Writ Petitioner is the next senior most Professor after him. Though said Dr.P. Siddhuraju was initially appointed as the Head of the Department being the Senior most, he was facing certain personal health issues which impacted 6/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 the working and administration of the Department and on that basis, the Respondent University placed the Writ Petitioner as the Head of the Department by proceedings dated 13.01.2021.
3.(b) While he was the Head of the Department of Environmental Sciences, on the basis of the audit objection raised in respect of re- designation of Dr. D. Prabha, Assistant Professor in the same Department from the post of technical officer, the Petitioner took up the issue with the Respondent University. Thereafter he made a representation on 01.09.2022. Since then Dr.D. Prabha has been harbouring some ill feelings towards the Writ Petitioner. Unfortunately, due to some personal reasons he was unable to perform his duties as Head of Department. Therefore, writ petitioner has made a request to the Respondent that the Department may be monitored by some other person for few months. Based on his request the Respondent directed him to handover the charges to Dr.P. Siddhuraju. Accordingly the petitioner handed over the charges to Dr.P. Siddhuraja on 14.06.2022 as an interim arrangement. It was clearly understood that only for a temporary period the writ petitioner was likely to take leave. On 12.09.2022 the Writ 7/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 Petitioner made a request by way of representation to the Respondent University that he may be permitted to take back charge as Head of the Department of Environmental Science. However, Dr.P. Siddhuraja failed to handover the charge to the Writ Petitioner. Hence, the Writ Petitioner made a representation to the Respondent University. As the respondent has not considered his representation he has filed writ petition in W.P.No.811 of 2023.
3(c) This Court by Order dated 12.01.2023 disposed of the above writ petition, directed the first respondent to pass final orders on merits and in accordance with law on the petitioner's representation dated 12.09.2022. While the Petitioner was awaiting for orders on his representation, the Respondent University issued a letter dated 30.01.2023 to him stating that Dr.D.Prabha and Dr.B. Sathiyapriya Assistant Professors, Department of Environment of Science have lodged complaints against him before the Internal Complaints Committee, Bharathiyar University.
3.(d) The complaints dated 25.01.2023 do not contain any ingredient 8/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 which would attract the definition of “Sexual harassment”. Whereas both the complaints refer to a previous complaint dated 08.06.2022. However, the said complaint copy has not been furnished to the writ petitioner. Now, suddenly the suspension order came to be passed on the basis of the preliminary discreet enquiry said to have been conducted by Internal Complaints Committee and given a report that there is a prima facie case in the allegation against the petitioner. Hence it is the contention of the Writ Petitioner that once the allegation of sexual harassment has been made, the Internal Complaint Committee shall enquire into the same in accordance with the principles of natural justice, thereafter file a report before the employer either recommending that no action required to be taken in the matter or in the case where allegation is found established, recommend the employer to take further action for sexual harassment as a misconduct in accordance with the service rules. Now impugned order has been passed violating all the statutory provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [ POSH Act]. Hence, the impugned order has been challenged.
9/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023
3.(e) In W.P.Nos.7794 of 2023 and 20166 of 2023, the Constitution of Internal Committee is challenged on the ground that the presiding officer is not women employed at a senior level at workplace from amongst the employees as provided for in the Act. It is the contention that there are many women professors have been appointed earlier in the year 2008. Whereas junior employees appointed as Presiding Officer is a direct and glaring violation of the provisions of the POSH Act.
3.(f) W.P.No.8795 of 2023 and W.P.No.5764 of 2023 are filed to quash the Preliminary Discreet Report of the Internal Committee. No procedure contemplated under the POSH Act has been followed and the impugned order in the entire proceedings held behind the back of the petitioner and the impugned order has not been signed by one of the essential member of the Committee.
4.(a) The stand of the Respondents in W.P.No.5764 of 2023 is that based on the complaint dated 25.01.2023 received by the 2nd Respondent for the alleged sexual harassment by the Writ Petitioner, discreet enquiry has 10/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 been conducted by the 2nd Respondent on 30.01.2023 and on conclusion of the said enquiry, the 2nd Respondent found that the act of the Writ Petitioner amounts to misconduct under the Service Rules and had recommended the Competent Authority to initiate the appropriate proceedings in line with Service Rules binding upon the Petitioner.
4.(b) Even assuming that there is no provisions of suspension of the delinquent employee pending conclusion of enquiry conducted under the POSH Act 2013 the same will not denude the powers of the authorities conferred under the service rules of the Respondent University which provides for suspension of service of the delinquent employee pending enquiry. Therefore, opposed the Writ Petition.
4.(c) In W.P.No.7794 of 2023 it is the contention of the Respondent that Presiding Officer / 5th Respondent is employed as professor in the Respondent University, has been nominated as Presiding Officer of the 2nd Respondent Committee. In the provision of the Act nowhere stated that only the senior most person at senior level should be nominated as Presiding 11/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 Officer. The copies have also been served. Hence opposed the writ petition. Similar counter was also adopted in other writ petition.
5.(a) Learned counsel appearing for the Writ Petitioner would submit that the entire action on the part of the Respondents is vindictive nature and against the principles of natural justice in the service matters. Admittedly the Petitioner has filed writ petitions to obtain a direction from this Court in W.P.No.811 of 2023 and by order dated 12.01.2023 this Court directed the Respondent to consider the representation and pass orders on merits to post him as the Head of the Department in the Environmental Sciences. Thereafter, suddenly a complaint dated 25.01.2023 said to have been received from one Dr. B.Sathya Priya Assistant Professor for certain alleged harassment. According to the learned counsel, even that complaint indicate that she has already given a complaint on 08.06.2022. But no action whatsoever initiated. Thereafter, internal committee has constituted and they have made discreet enquiry and filed a report as if there is a prima facie case. Based on that report, the Petitioner was suspended. 12/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023
5.(b) It is the contention that any complaint for sexual harassment has to be enquired by the Internal Committee duly constituted as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. In this case though initially one Internal Complaints Committee [ICC] headed by the Presiding Officer, has been changed later, despite the fact that there are many senior professors are very much available, junior level officer is made as Presiding Officer. Therefore her contention that very constitution of Internal Complaints Committee itself is not in according to the Sexual harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013.
5.(c) Further, mandate of Section 4 of the Sexual harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013, the Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees. Whereas in these cases despite the availability of many senior women professors, junior most woman has been appointed which is contrary to Section 4 of the Act. 13/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023
5.(d) It is her further contention that any such complaint also to be given within a period of three months from the date of last incident. Whereas the alleged complaint was given on 08.06.2022 no action has been taken. But suddenly, when this Court in W.P.No.811/2023 passed direction to the Respondent to pass an order on his representation, a complaint came to be filed on 25.01.2023. According to her, based on that complaint preliminary discreet enquiry conducted by the Committee and on the same the Report has been given as if there is a prima facie case. Based on that Report, the Petitioner was placed under Suspension. It is the contention of the learned counsel that any complaint on sexual harassment is given to the internal committee or local committee and the enquiry has to be conducted as per Section 11 of the Act. Further as per the Act, Committee shall make an enquiry into the complaint in accordance with the principles of natural justice. Thereafter only enquiry has to be conducted. Only when ICC finds that the allegation against the respondent has been proved, it can recommend to the employer to take action for misconduct, in accordance with provision of the Service Rules applicable. Violating all the procedure, the entire action has been taken in a vindictive manner. Further during 14/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 pendency of enquiry the suspension of the respondent is not contemplated under the Act itself. Therefore, violating the entire aspect, the order came to be passed behind the back. Hence, seeks to declare the constitution of Internal Committee as null and void and quash the impugned orders passed by the Respondents and allow the writ petitions.
5.(e) The learned counsel for the Respondent mainly contended that the Internal Committee has been constituted as per the Act 14 of 2013. Merely because junior professor was appointed as Presiding Officer the same will not vitiate the very constitution itself. A Junior woman Professor can be appointed as a Presiding Officer. On the basis of the complaint given by one woman professor dated 25.1.2023, Preliminary discreet enquiry conducted and found that there is a prima facie case to proceed. Based on that, Writ Petitioner was placed under suspension invoking the service rules. According to them as per the Statute 14 of the Bharathiar University, Disciplinary Authorities have a power to suspend any employee pending enquiry. Hence it is the contention that when the allegation is serious in nature the same cannot be questioned by filing a writ petition. 15/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 Hence prayed for dismissal of all the writ petitions.
6. In the light of the above submissions, it has to be seen whether the constitution of the Internal Complaint Committee validly made.
7. It is relevant to note that originally one Dr.N. Geetha, Professor, Department of Botany was appointed as Presiding Officer of the Internal Committee which is challenged in W.P.No.7794 of 2022. Thereafter, Presiding Officer has been changed in her place. One Dr.M. Punithavalli, Professor, Department of Computer Application has been made as a Presiding Officer of the Internal Committee, who is the 5th Respondent in W.P.No.20166 of 2023. The seniority list provided and filed in the type set is as follows:
Seniority No.6. Dr. Rupa Gunaseelan Seniority No.7. Dr. F.X. Lovelina Little Flower Seniority No.9. Dr. Dr. K. Malar Mathi Seniority No.10. Dr. T. Devi Seniority No.11. Dr. S. Chitra 16/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 Seniority No.15. Dr. K. Sangeetha Seniority No.20. Dr.N. Annamalai Seniority No.22. Dr. M. Sumathy Seniority No.24. Dr. E. Chandra Above list make it clear that many senior women professors are very much available in Bharathiyar University. Whereas the 5th Respondent in W.P.No.7794 of 2023 viz., Dr.N. Geetha placed in the Seniority No.33 was appointed as Presiding Officer. Thereafter, 5th Respondent in W.P.No.20116 of 2023 Dr. M. Punithavalli placed in the Seniority No.42 was appointed as Presiding Officer of the Committee. In both internal committees, the Respondent University has not nominated the Presiding Officers at a senior level from amongst the employees. Further it is not their case that all the senior most professors are in the seniority are not available nor they consented to be a Presiding Officer.
8. Section 4(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 reads as follows:
“4. Constitution of Internal Complaints Committee:
4 (1) ... ... ... ... ... ... ...17/31
https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 4 (2) The Internal Committees shall consist of the following members to be nominated by the employer, namely:—
(a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees.”
9. Therefore the very mandate of the Act shows that the Presiding Officer shall be women employee at a senior level at work place from amongst the employees. Whereas the Respondents have appointed a Presiding Officer who are very junior in the Seniority Numbers of 33 and 42, despite the fact that many other women employed at Senior level available in their University. Therefore, this Court is of the view that the very constitution of Internal Committee itself is against the mandatory provisions contained in Section 4 of the POSH Act.
10. It is not the case of the Writ Petitioner that the Presiding Officer should be senior to the Writ Petitioner. But his only contention before this Court is that the Presiding Officer should be the women employed at senior 18/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 level. In such a view of the matter when many of the women officers in the senior level available, constituting the committee ignoring the women professors in the senior level and appointing the Presiding Officer from the Seniority Serial Nos.33 and 42, in view of this Court, is nothing but contrary to the Section 4 of the POSH Act.
11. Now with regard to the other submissions, once the complaint is given for alleged sexual harassment whether the internal committee can go into the discreet enquiry violating the very procedure contemplated in the Act. Section 9 of the Act deals with the complaint. Same deals that the complaint shall be filed within a period of three months from the date of the incident and in case of serious of incidents, within a period of three months from the date of last incident to the Internal Committee.
12. Section 10 of the Act provides for Conciliation. In the event the conciliation is not effected, then Internal Complaint Committee has to proceed with the complaint by way of enquiry. Where the respondent is an employee the Internal Committee shall proceed to make enquiry into the 19/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such a manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of Indian Penal Code and any other relevant provisions of the said Code where applicable.
13. From the reading of the above Section makes it clear that even to proceed an enquiry according to the provisions of the service rules, principle of natural justice is required. However, the discreet enquiry said to have been conducted in this regard by the Internal Committee on 30.01.2023. On perusal of the Report it is stated that oral enquiry proceeded under Section 11(1) of the POCH Act, committee has conducted detailed oral enquiry with the aggrieved two women faculty members and opined that there is a misconduct under the service rules and recommended the competent authority to initiate action for misconduct. A perusal of the report makes it clear that though there are seven members present one of the members Mr. Subramania Siva has not signed the above report. Therefore, 20/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 even as per Section 11 of the Act, when the Internal Committee is proceeded to make an enquiry into the complaint in accordance with the provisions of service rules an opportunity ought to have given to the Writ Petitioner by following the Principles of Natural Justice which has not done so.
14. The Petitioner alleged that the very action is vindictive nature since the complaint dated 25.01.2023 refers the earlier complaint 08.06.2022. A copy of the complaint annexed in the typed set dated 08.06.2022 in entirety read, the complaint has been mainly given in respect of writing of examination of M.Sc. Student in the last semester examination, wherein there is no allegation of sexual harassment has been made in the first incident on 08.06.2022. Whereas in the complaint dated 25.01.2023 several allegations have been made. This Court is not inclined to go into the merits of the allegation at this stage. The above difference is pointed only for the simple reason that the internal committee is constituted statutorily has to follow the procedure and to conduct proper enquiry. The minimum least requirement is the principle of natural justice, which has not 21/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 done so. On the other hand, their Report dated 30.01.2023 has been found that the prima facie allegation is made out in the preliminary discreet enquiry.
15. Rule 7 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redreassal) Rules, 2013 is as follows:
“7. Manner of inquiry into complaint.- (1) Subject to the provisions of section 11, at the time of filing the complaint, the complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witnesses.
(2) On receipt of the complaint, the Complaints Committee shall send one of the copies received from the aggrieved woman under sub-rule (1) to the respondent within a period of seven working days.
(3) The respondent shall file his reply to the complaint along with his list of documents, and names and addresses of witnesses, within a period not exceeding ten working days from the date of receipt of the documents specified under sub-
rule (1).
22/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 (4) The Complaints Committee shall make inquiry into the complaint in accordance with the principles of natural justice.
(5) The Complaints Committee shall have the right to terminate the inquiry proceedings or to give an exparte decision on the complaint, if the complainant or respondent fails, without sufficient cause, to present herself or himself for three consecutive hearings convened by the Chairperson or Presiding Officer, as the case may be: Provided that such termination or ex-parte order may not be passed without giving a notice in writing, fifteen days in advance, to the party concerned.
(6) The parties shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of the proceedings before the Complaints Committee. (7) In conducting the inquiry, a minimum of three Members of the Complaints Committee including the Presiding Officer or the Chairperson, as the case may be, shall be present.” On perusal of the entire rule, the enquiry shall be conducted in accordance 23/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 with the principle of natural justice.
16. Section 12 of the Act deals with nature of the recommendation can be made by the Internal Committee to the employer. Section 12 of the Act is as follows:
12. Action during pendency of inquiry.
(1) During the pendency of an inquiry on a written request made by the aggrieved woman, the Internal Committee or the local Committee, as the case may be, may recommend to the employer to—
(a) transfer the aggrieved woman or the respondent to any other workplace; or
(b) grant leave to the aggrieved woman up to a period of three months; or
(c) grant such other relief to the aggrieved woman a may be prescribed.
(2) The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.24/31
https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 (3) On the recommendation of the Internal Committee or the Local Committee, as the case may be, under sub-section (1), the employer shall implement the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.” The same makes it clear that only a transfer of the aggrieved women or the respondent to any workplace or grant leave to the aggrieved women upto a period of three months or any other relief to the aggrieved women alone can be recommended. The suspension is not contemplated under Section 12 of the Act.
17. As per Section 13 (3) of the Act, in the event the committee finds that allegation against the Respondent has been proved, it shall recommend to the employer or the District Officer to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent. On such recommendation the employer shall take action within 60 days as per sub-clause (4). Therefore, when the very scheme of the Act is to set out the manner of procedure how the complaint 25/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 in respect of sexual allegation/sexual harassment has to be enquired, such procedure has to be followed mandatorily. In the cases on hand the procedure has been violated and ignored. The very fact that this Court has passed an order in W.P.No.811 of 2023 to consider the representation of the Petitioner. Thereafter a complaint came to be filed on 25.01.2023. Though it is alleged that the similar complaint was filed as early as 08.06.2022, as discussed above, the complaint dated 08.06.2022 do not contain any allegations of sexually coloured remarks or sexual abuse as against the petitioner. Suddenly on 30.01.2023 Preliminary Discreet Enquiry Report has submitted. That too one of the members has not signed. Based on that Writ Petitioner has been suspended. The manner in which the entire proceedings culminated upto suspension based on certain report is not in order and violated the entire scheme of Act 14 of 2023 in the POSH Act
18. It is relevant to note that in the judgment of the Apex Court in the case of Additional District and Sessions Judge `X` -vs- The Registrar General, High Court of Madhya Pradesh and others reported in (2015) 4 SCC 91, the Honurable Supreme Court has considered the issue in 26/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 paragraphs 46.1 and 46.2 which reads as follows:
“46.1. A perusal of the "in-house procedure" applicable to sitting judges of High Courts reveals, that the same is compartmentalized into two stages. Through the first stage, the prima facie veracity of the allegations, contained in the complaint is ascertained. If so, whether a deeper probe is called for. The first stage does not contemplate an in-depth examination of the allegations. It requires merely an assessment based on the contents of the complaint, and the response of the concerned judge. All that the Chief Justice of the High Court is required to do, is to determine whether a deeper probe is required. This is to be done, on the basis of a logical assessment made on a consideration of the response of the concerned Judge (with reference to the allegations levelled in the complaint).
46.2. It is the second stage of the "in-house procedure", relating to sitting judges of High Courts, which could lead to serious consequences. The second stage is monitored by none other, than the Chief Justice of India. Only if the Chief Justice of India endorses the view expressed by the Chief Justice of the High Court, that a deeper probe is called for, he would constitute a "three-member Committee", and thereby take the investigative process, to the second stage. This Committee is to comprise of two Chief Justices of High Courts (other than the concerned High Court), besides a Judge of a High Court. The 27/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 second stage, postulates a deeper probe. Even though the "three-
member Committee" is at liberty to devise its own procedure, the inherent requirement provided for is, that the procedure evolved should be in consonance with the rules of natural justice. Herein, for the first time, the authenticity of the allegations, are to be probed, on the basis of an inquiry. The incumbents of the "three- member Committee", would have no nexus, with the concerned judge. Not only would the concerned judge have a fair opportunity to repudiate the allegations levelled against him, even the complainant would have the satisfaction, that the investigation would not be unfair. The "in-house procedure" was devised to ensure exclusion of favouritism, prejudice or bias.” (emphasis supplied)
19. The above judgment is also make it clear that any enquiry committee which is constituted to enquire the allegation of sexual harassment at work place, enquiry should be in accordance with the principle of natural justice. In this case it has not been done. The contention of the learned counsel for the Respondent university is that as per the Statute 14 of the Bharathiyar University “Discipline and Control”, authority competent to inflict the major punishment has power of suspension pending enquiry. On perusal of the Statute 14 Discipline and 28/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 Control it is only deals with the nature of the punishment. No doubt Statute 14 (3) gives to the authority competent to inflict major punishment will have a power of suspension pending enquiry. But in the present case since the employer has suspended the petitioner based on the prliminary discreet enquiry report given by the committee, which is also not accordance with the rules, the very suspension order based on such report cannot be sustained in the eye of law. When the writ petitioner alleged vindictive action, any action against the petitioner for suspension removal should be only based on the final report as contemplated under Section 13 of the POSH Act. Therefore, merely on the basis of the so called preliminary enquiry which was conducted against the mandatory procedure, orders of the respondent cannot be sustained. In such a view of the matter this Court is of the view that the Petitioner is certainly entitled to succeed the Writ Petitions. Accordingly suspension is set aside.
20. The Respondents are directed to constitute a Internal Committee as per Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). Thereafter 29/31 https://www.mhc.tn.gov.in/judis W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 the committee shall proceed to enquire the allegations following the procedure contemplated under rule 7 of the Sexual Harassment of Women at Workplace (Prevention, Prohibiton and Redreassal) Rules, 2013 and file a report to the Respondent.
21. With the above observation all the writ petitions are allowed. No costs. Connected Miscellaneous Petitions are closed. The Writ Petitioner is entitled to all the salaries for the suspended period.
27.07.2023
Index : yes
Internet : yes
Neutral Citation: Yes/No
ggs
Copy to:
1. The Registrar,
Bharathiar University, Coimbatore-641 046.
2. Internal Complaints Committee (ICC)
Bharathiar University, Coimbatore-641 046.
30/31
https://www.mhc.tn.gov.in/judis
W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and
W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 N.SATHISH KUMAR, J., ggs Common Order in:
W.P.Nos.5764, 7794, 8795 & 20166 of 2023 and W.M.P.Nos.5760, 8004, 8972, 8973,19501, 19503 & 19505 of 2023 27.07.2023 31/31 https://www.mhc.tn.gov.in/judis