Calcutta High Court (Appellete Side)
Nutrition & Ors vs Suddhasil Dey & Anr on 13 March, 2020
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Madhumati Mitra
WPCT 137 of 2019
Institute of Hotel Management, Catering Technology and Applied
Nutrition & ors.
vs.
Suddhasil Dey & anr.
For the petitioners : Mr. Soumya Majumder, Advocate,
Mr. Sandip Bhattacharya, Advocate,
Mr. Dipta Banerjee, Advocate.
For the respondent : Mr. Sudip Krishna Datta, Advocate.
Heard on : February 21, 2020
Judgment on : March 13, 2020
Dipankar Datta, J.:
1. Certain values of life, with which we Indians were always proud to associate ourselves, are fast on the decline. Respect for religion and love for humanity seem to be things of the past. Disrespect for women has also been on the increase. Although several legislation saw the light of the day to protect women, the country was lagging behind in one area. Noticing that there was no law to protect women from harassment and abuse at the workplace, attempts were made to restore some sense of sanity in this behalf. This resulted in the path breaking judgment being delivered by the Supreme Court in Vishaka v. State of Rajasthan, 2 reported in (1997) 6 SCC 241. Inter alia, it was held therein that working women, in workplaces, have the right to gender equality, to work with dignity and to a working environment that is safe and protected from sexual harassment or abuse. In the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, the Court laid down guidelines and norms for due observance at all workplaces or other institutions, until enactment of a legislation for the purpose.
2. Acting in compliance with the directions contained in Vishaka (supra), certain employers did introduce amendments in the conduct, discipline and appeal rules to deal with instances of sexual harassment and abuse of women at workplace, if at all, with iron hands. The Central Civil Services (Classification, Control and Appeal) Rules, 1971 [hereafter the CCS (CCA) Rules] and the Railway Servants (Discipline and Appeal) Rules, 1968 immediately come to mind, where amendments were introduced to deal with allegations of sexual harassment of women at workplaces. More than a decade and a half after Vishaka (supra), saw the advent of a special law on the subject of sexual harassment. The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereafter the 2013 Act) came into force from April 23, 2013.
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3. Despite the law with stringent provisions therein being put in place, the same has not deterred egotist men from exposing themselves to be hauled up and proceeded against thereunder. There have been quite a few instances of men indulging in sexual harassment of women at workplace being dealt with under the 2013 Act and suffering punishment. At the same time, as is peculiar to our country, it does not take much time to misuse a beneficent piece of legislation, brought to protect a class, for personal gains or to wreak vengeance. It has been experienced that false accusations to tarnish the image of a man of character and who is upright and honest in his dealings have not stayed too far. It is, therefore, an onerous task for the persons responsible to enforce the 2013 Act in its letter and spirit to separate the grain from the chaff. While the need to protect women from sexual harassment and abuse at workplaces can hardly be overemphasized, those entrusted to deal with such allegations of sexual harassment and abuse have to proceed strictly in accordance with the laid down norms, lest an innocent man and a victim of circumstances is held guilty. It is axiomatic that any punitive measure including dismissal/removal from service of a man holding a responsible office found guilty of sexual harassment and abuse of a woman at the workplace leaves an indelible stamp of ignominy on his forehead, which is hard to obliterate. People acquainted with such a man may shun his company, fearing that women folk of their families could also run the risk of being harassed and abused. Such an order of 4 punishment, more often than not, leaves behind a stigma with which he may have to survive till the end of his life and thereby his very existence could be at stake. It is, therefore, imperative to tread with caution and circumspection so that while justice is rendered to a victim of sexual harassment, justice is also rendered to the man accused of the same. It is the due process that undoubtedly needs to be adhered to, so that a party to the proceedings has little reason to believe that he or she did not receive just justice.
4. Here, we are tasked to decide the fate of a teacher dismissed from service for sexual harassment of his lady students at an institution and who, having mustered the courage to challenge the order of dismissal and the appellate order dismissing his appeal before the Central Administrative Tribunal, Kolkata Bench, Kolkata (hereafter the tribunal), partially succeeded in his pursuit for justice and now has to defend the order of the tribunal, on a challenge being laid thereto by his employer.
5. The respondent before us (hereafter Mr. Dey) at the relevant time was employed as senior lecturer-cum-senior instructor in the petitioner no.1 (hereafter the institute). Several lady students of the institute lodged complaints of sexual harassment, allegedly perpetrated by Mr. Dey. Proceedings were initiated against Mr. Dey under the 2013 Act without, however, making over to him any of such complaints. Upon his appearance before the Internal Complaints Committee constituted by the institute under the 2013 Act (hereafter the ICC), Mr. Dey disputed that 5 he had indulged in acts amounting to sexual harassment at his workplace. It appears that the ICC recorded the depositions of the complainants but such recordings were not in the presence of Mr. Dey. Such a course was undertaken ostensibly because the ICC felt that divulging the names of the complainants would compromise their safety and security and that it was necessary to maintain confidentiality. The ICC submitted its findings in an inquiry report dated March 26, 2015. The report was placed before the Board of Governors of the institute, being the disciplinary authority, whereupon it was decided to seek the comments of Mr. Dey thereon. Copy of the report upon being furnished to Mr. Dey by a memorandum dated May 19, 2015 of the secretary of the institute, Mr. Dey by his representation dated May 29, 2015 furnished his comments on the report of inquiry prepared by the ICC within the time stipulated therefor and requested that the proceedings be dropped. It was further prayed that he be reinstated in service upon revocation of the order of suspension. This was followed by a request for voluntary retirement from service (subsequently withdrawn). In the meanwhile, Mr. Dey had also approached this Court in its writ jurisdiction challenging initiation of the proceedings under the 2013 Act, referred to above, but subsequently on June 13, 2016, such writ petition was withdrawn.
6. It would be appropriate to notice at this stage what the Board of Governors and the ICC did after Mr. Dey had submitted his comments on the inquiry report. Such report of the ICC came up for consideration of 6 the Board of Governors of the institute in its 107th meeting held on December 28, 2015. The following decision appears to have been taken by the Board:
"The Board of Governors upon deliberation on the issue finds that the report of the Internal Complaint Committee is not supported by evidence on the basis of which an independent assessment can be made by the board as disciplinary authority and as such it is resolved that the report be send back on remand to the Internal Complaint Committee of the Institute under Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act of 2013, for further enquiry for the purpose of recording evidence of the complainant and other witnesses and to submit report along with the evidence so collected within 21 days hereof for taking further necessary action in this regard to resolve the issue at the earliest."
7. In pursuance of the above decision, the secretary of the institute by his letter dated February 9, 2016, addressed to the chairman of the ICC, apprised her that the Board of Governors had not concurred with the inquiry report on the ground that the findings are "not supported by evidence on the basis of which any conclusion can be drawn" and had resolved to remand the matter to the ICC "for further enquiry for the purpose of recording evidence of complainant and other witnesses" and to submit a report with the evidence so collected within 21 days. Request was made to the ICC to do the needful as directed by the Board of Governors and to resubmit a report for taking further necessary action.
8. The response of the ICC to the aforesaid letter dated February 9, 2016 is found in its letter dated February 15, 2016. For facility of reference, the same is quoted below:
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"The Chairperson of Internal Complaint Committee of IHM, Kolkata under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 is in receipt of the letter as mentioned above wherein resolution taken by the Board at 107th Board of Governors Meeting of IHM, Kolkata held on 28.12.2015 has been furnished.
This is to bring to your kind notice that the accused officer Mr. Suddhasil Dey, Senior Lecturer-cum-Senior Instructor [under suspension] has already preferred a Writ Petition in the Hon'ble High Court at Kolkata and the matter is now sub judice [Case No. 11321 (W) of 2015]. One of the reasons of filing such application is the report that the Internal Complaint Committee has filed. Under such circumstances in the opinion of the Internal Complaint Committee, to convene a second enquiry on the self same issue, prior permission of the Hon'ble Calcutta High Court is needed. Moreover, since this Internal Complaint Committee has already formed an opinion regarding the accused officer Mr. Suddhasil Dey, Senior Lecturer-cum-Senior Instructor [under suspension] after conducting an enquiry, the subsequent enquiry by the same Committee may give the opportunity to the accused officer to raise question regarding the impartiality of the enquiry committee. Awaiting your further advice in this matter."
9. The aforesaid letter of the ICC was forwarded by the principal of the institute to the Principal Secretary to the Government of West Bengal, Department of Tourism (being the chairman of the Board of Governors) soliciting directions for the next course of action. The matter was referred to the Law Officer in the Tourism Department of the Government of West Bengal. The opinion of the Law Officer dated February 29, 2016, inter alia, reads as follows:
"Instead of taking final decision on the said non speaking report without any reasoning to come to the abrupt conclusion, the Disciplinary Authority has sent back the case on remand to the internal complaint committee with direction to resubmit the report disclosing the evidence and the reasoning on the basis of which the inquiring authority came to the conclusion. Moreover in the pending case the Hon'ble High Court has not passed any order staying the enquiry proceedings.
ICC may be requested to act accordingly."8
10. The aforesaid opinion of the Law Officer was furnished to the chairperson of the ICC by the secretary of the Board of Governors by his letter dated March 2, 2016, whereupon a letter dated March 28, 2016, signed by all the members of the ICC, was issued. It needs to be read and, therefore, is quoted below:
"We are in receipt of your above referred letter, have gone through the same and have understood the meaning and purports thereof. We have also gone through the noting of the legal officer in this regard.
In our humble opinion since the case is pending in the Hon'ble High Court at Calcutta wherein our report has been challenged, we are not in a position to deal with the same any further without the permission of the Hon'ble Court.
However, since it is the desire of the management, we hereby place the documents and the minutes substantiating the enquiry, to your good office for your perusal and record. We say that the above referred complaints duly signed by the victims and the questionnaires put to Mr. Sudhhasil Dey, which he answered to serve his purpose, were the basis of forming our opinion in this regard. We also state that the complaints were confirmed and corroborated duly by all victims during their enquiry by the committee and they have put their respective signatures confirming their respective complaints in this regard.
A combined reading of the same and our report will speak for the reasons which led us to give our opinion in the manner as above referred."
11. Together with such letter was enclosed the minutes of the meeting of the ICC held on various dates and the complaints of the lady students. Such letter was followed by a further undated report signed by all the members of the ICC which, in the form of an inquiry report, contained the following findings:
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"Findings with reasons:
The spontaneity with which the complainants narrated the incidents of sexual harassment of the nature of physical contact, sexually coloured remarks, unwelcome physical, verbal, non-verbal conduct of sexual nature and humiliating treatment likely to affect their mind, health and careers, we the members of ICC believe their testimonies which also get independent corroboration on material particulars. Also, Shri Suddhasil Dey's replies did not make a dent in the testimonies of the complainants. Regard being had to all the facts and circumstances of the case as substantiated by cogent evidence we the members of the ICC are convinced to hold that the following facts are establised.
1. Shri Suddhasil Dey touched the back, neck and arms of complainant "T" for longer period than what was necessary for drawing her attention.
2. Shri Suddhasil Dey gave a piercing and X-ray look at the private parts of all the complainants and commented about uniform fittings
3. Shri Suddhasil Dey would intentionally make embarrassing remarks about the girl students in the presence of other students especially the boy students.
4. When the girl students would return late from their trainings Shri Suddhasil Dey used to pull them forcibly into his quarters (in absence of his family), despite their objections.
5. One early morning, on the pretext of checking about the water supply, Shri Suddhasil Dey entered a girl student's room without knocking at the door, when the student was sleeping in her night suit. He kept staring at her much to the embarrassment of that student.
6. Shri Suddhasil Dey would make comments about the shape of their bodies, physical appearance, dress, colour of intter garments of the girl students.
7. Shri Suddhasil Dey would always pick dusters from the waist and knife from the chest pocket of girl students only.
All the above incidents pertain to sexual harassment of the girl students of this prestigious Institute of Hospitality and Hotel Management in the Eastern Region of this Country and thus, the allegations stand firm against Shri Suddhasil Dey.
ICC therefore concludes with anticipation of an appropriate and exemplary action to be taken by the Board of Governors against such henious act of a senior faculty which degrades the reputation and harmful for an co-educational institution where female students/female staff are not safe and secured and can't study/work with dignity."
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12. Although the report is undated, the material period of time when it was prepared can be deciphered from the following passage therein:
"On 02.03.2016, the ICC vide Reference No. CT/AD-21(3)/6/3355 was requested to re-submit the report. Since Shri Suddhasil Dey has challenged the report in the Hon'ble Court of Calcutta and the matter being sub-judice, the ICC submitted the reply to the Board of Governors.
On 12.04.2016, the ICC was requested to meet Mr. Sanjeev Chopra, IAS, Additional Chief Secretary, Department of Tourism, Government of West Bengal and Hon'ble Chairman of Board of Governors of IHM, Kolkata. On perusal of the report submitted by the ICC, he suggested that the ICC should make a concise summary of all the events, their findings and recommendations along with valid reasons.
Accordingly the Internal Complaint Committee met on 22nd April, 2016 to furnish the following reasons and procedures adopted by the Committee for coming to conclusion which is now being sent to the Additional Chief Secretary, Department of Tourism, Govt. of West Bengal and Hon'ble Chairman of Board of Governors of IHM, Kolkata."
13. The undated report was forwarded to the Additional Chief Secretary to the Government of West Bengal, Tourism Department, and chairman of the Board of Governors, by its secretary vide letter dated April 26, 2016. At the 108th meeting of the Board of Governors held on April 26, 2016 itself, the following decision was taken:
"Resolved that the report of Internal Complaint Committee of IHM, Kolkata under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 has been accepted by the Board of Governors. The Board of Governors further resolved to impose major penalty against Mr. Suddhasil Dey, Senior Lecturer-cum-Senior Instructor (currently under suspension) and recommended for dismissal of his service from this Institute with immediate effect and lodge an FIR against him.
The Board of Governors as appointing authority authorized Secretary to issue Notice of Termination on its behalf to Mr. Suddhasil Dey, Senior Lecturer-cum-Senior Instructor."11
14. Without even furnishing to Mr. Dey the further (undated) inquiry report submitted by the ICC, decisions appear to have been taken to accept the same, impose major penalty on Mr. Dey, i.e., dismissal from service, and to have an FIR lodged against him.
15. Following such decision of the Board of Governors, the secretary issued an order dated May 6, 2016 reading as follows:
"Whereas Shri Suddhasil Dey, Senior Lecturer-cum-Senior Instructor (under suspension) has been found guilty of serious and willful misconduct in the enquiry conducted under Sexual Harassment of Women at Work place [Prevention, Prohibition and Redressal) Act 2013 and whereas it is considered that the misconduct of the said Shri Suddhasil Dey Senior Lecturer-cum- Senior Instructor (under suspension) was such as to render as further retention in the public service undesirable. The gravity of the charges are as such to warrant the imposition of the major penalty. Now, therefore, in exercise of power conferred by the Board of Governors of the Institute as Disciplinary Authority in the meeting dated 26.04.2016, the undersigned being the Secretary of Board of Governors of IHM, Kolkata, hereby issues this notice of termination to dismiss the said Shri Suddhasil Dey, Senior Lecturer-cum-Senior Instructor (under suspension) from his service in the Institute with immediate effect imposing the major penalty (ix)."
16. On the same day, the Officer-in-Charge, Taratala Police Station was approached by the principal-in-charge of the institute with a request to lodge an FIR against Mr. Dey on the basis of the findings contained in the undated report of the ICC.
17. Having been dismissed from service, Mr. Dey preferred an appeal dated June 20, 2016 before the appellate authority. Since the appeal was not disposed of, Mr. Dey had the occasion to approach the tribunal with an original application [OA 250/63/2017]. The same was disposed of with a direction upon the appellate authority to decide the appeal. After 12 disposal of the original application, Mr. Dey was requested to file an appeal afresh before the Secretary, Ministry of Tourism, Government of India (being the appellate authority). Mr. Dey submitted an appeal dated July 14, 2017. The response thereto from the principal of the institute reads as follows:
"This has reference to your appeal dated 14.07.2017 to the Secretary, Ministry of Tourism, Government of India, the Appellate Authority.
The Appellate Authority has conveyed its decision to the undersigned by Office Memorandum F.No.38(4)/2017-HDR, dated 14th September, 2017 that your appeal has been rejected by the Appellate Authority.
This is for your information."
18. The appellate order as well as the order of dismissal and the proceedings before the ICC were challenged by Mr. Dey before the tribunal in a fresh original application [OA 350/1478/2017]. The judgment and order dated July 17, 2019 of the tribunal found glaring defects in the proceedings that were conducted against Mr. Dey. It was ultimately concluded as follows:
"10. Having noted the glaring omissions and violations of the procedural law as alleged by the applicant and set out in para 2 hereinabove, we have no other option than of quashing the order of dismissal and the appellate order and of remanding the matter back to the Board of Governors to act strictly in terms of provisions of the act, get the enquiry concluded in accordance with law and pass appropriate reasoned and speaking order on the guilt of the applicant. Till then the applicant may be continued on suspension. Let appropriate orders be issued within 4 months from the date of communication of this order."13
19. On behalf of the institute and its officers, being the respondents before the tribunal, the original application was sought to be resisted on 2 (two) grounds:
(i) the challenge to the proceedings of inquiry conducted by the ICC was hit by the doctrine of res judicata; and
(ii) the proceedings before the ICC as well as the decisions taken by the Board of Governors following such proceedings and also the appellate order do not suffer from any defect, warranting interference.
Needless to observe, both the contentions failed before the tribunal giving rise to the present proceedings.
20. Mr. Soumya Majumder, learned advocate for the petitioners has argued at substantial length. He defended the action of the petitioners by contending that Mr. Dey was extended adequate and reasonable opportunity of defence and there being no procedural defect or irregularity, far less glaring omissions and violations of procedural law as found by the tribunal, absolutely no case had been set up for interference and the tribunal was not justified in its interference with the disciplinary action taken against Mr. Dey. According to him, the findings contained in the report of inquiry were based on the evidence on record and it is not the function of the tribunal to appreciate evidence as if it were sitting in appeal. Mr. Dey, being a teacher, had crossed all limits of decency and behaved with his lady students in such manner, as would 14 appear from the tenor of the complaints, that he is a disgrace for the teaching fraternity and deserved nothing else but dismissal. He finally urged that to keep the reputation of the institute intact and to discourage teachers from behaving with lady students in a manner bordering on harassment and abuse, judicial interdiction is warranted on facts and in the circumstances by restoring the order of dismissal passed against Mr. Dey.
21. On an earlier occasion, Mr. Majumder had attempted to impeach the judgment and order of the tribunal by contending that it fell in error in not accepting the contention that the original application was hit by the doctrine of res judicata; however, having sensed the mind of the Court in regard to the unsoundness of such a contention, he did not repeat it a second time.
22. While proceeding to complete our task of deciding whether Mr. Dey was given a fair or a raw deal, we propose to dwell on a specific contention raised by Mr. Majumder. According to him, the recommendations made by the ICC are binding on an employer in view of the provision contained in sub-section (4) of section 13 of the 2013 Act, and, therefore, the petitioners were left with no other option but to act on the recommendations made by the ICC while taking disciplinary action against Mr. Dey.
23. Per contra, Mr. Datta, learned advocate for Mr. Dey contended that the tribunal was perfectly justified in its interference with the wrongful 15 disciplinary action. Referring to rule 7(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (hereafter the 2013 Rules), Mr. Datta first contended that Mr. Dey was entitled to copies of the complaints received from the aggrieved lady students but such provision was observed in complete breach.
24. Our attention was next drawn by Mr. Datta to section 28 of the 2013 Act, which ordains that the provisions thereof would be in addition to and not in derogation of the provisions of any other law for the time being in force. According to him, the legislative intent is therefore clear that the safeguards provided by the CCS (CCA) Rules cannot be done away with by the employer while proceedings under the 2013 Act to inquire into a complaint are in progress.
25. Referring to sub-rule (1) of rule 15 of the CCS (CCA) Rules, it was contended by Mr. Datta that the Board of Governors of the institute (being the disciplinary authority) initially not having agreed with the inquiry report of the ICC and having remitted the matter to the ICC for further inquiry, the ICC ought to have conducted a further inquiry upon notice to Mr. Dey; however, without any further inquiry being conducted, a subsequent inquiry report submitted by the ICC was considered by the Board of Governors (to which Mr. Dey was not given any access) and a final decision taken without complying with sub-rule (2) of rule 15. According to him, the procedural safeguards enshrined in the CCS (CCA) Rules, which are conceived in the interest of the employee/officer 16 proceeded against, were thrown to the winds by the Board of Governors, seriously prejudicing Mr. Dey.
26. It was, accordingly, prayed that the writ petition be dismissed upon upholding the impugned judgment and order of the tribunal, with further direction to comply therewith within such time as may be fixed by this Court.
27. We have heard learned advocates for the parties and perused the materials on record including certain fresh documents which had not been placed for consideration of the tribunal but were placed before us by the petitioners through a supplementary affidavit, pursuant to a leave being granted in this behalf.
28. There can be no doubt that the 2013 Act is a piece of protective legislation for women, intended to preserve their dignity, the cherished goal of Article 21 of the Constitution, as well as to extend equal opportunities at their workplace, which is an integral part of Articles 14 and 16 of the Constitution. If indeed, sexual harassment, as defined in section 2(n) of the 2013 Act is alleged to have taken place and is thereafter proved, the situation has to be dealt with firmly and there can be no two opinions on this score.
29. None can possibly dispute that the complaints which were considered by the ICC, referred to its undated report submitted sometime in April 22, 2016, did contain allegations which were very serious and could be regarded as sufficient to set the ball in motion for proceeding against Mr. 17 Dey. Initiation of proceedings does not, therefore, suffer from any infirmity except one particular flaw which we presently propose to discuss. A reading of rule 7 of the 2013 Rules does seem to suggest that a complainant has to submit 6 (six) copies of the complaint together with supporting documents and the names and addresses of the witnesses, and out of the copies so received one would have to be sent to the respondent within a period of 7 (seven) working days. Queerly, despite the provision in rule 7(2) of the 2013 Rules, none of the complaints considered by the ICC was made over to Mr. Dey. If indeed, the complaints had been so made over, it would have been open to Mr. Dey to urge before the ICC that it ought not to investigate into the complaints because, some of them were not addressed to the chairperson of the ICC whereas none of them referred to a single date or series of dates of incident(s) of sexual harassment and, therefore, were time-barred [requirements of sub-section (1) of section 9 of the 2013 Act]. Absence of date(s) of incident(s) in the compliant(s) obviously does/do not lead to an inference that the allegation(s) is/are frivolous but certainly the complainant(s) not having indicated the date(s) of occurrence, the ICC ought to have been more careful in its approach and proceeded in the manner law required it to proceed. Had copies of the complaints been furnished, opportunity to reply been given to and availed of by Mr. Dey, obviously the ICC would have been required to assign reasons and condone the belated approach [the second proviso to sub-section (1) of 18 section 9 of the 2013 Act]. The safeguards in this regard provided by section 9 of the 2013 Act to a respondent charged with sexual harassment (here, Mr. Dey), thus, were ignored by the ICC.
30. Mr. Datta is right in his contention that the ICC while conducting the inquiry against Mr. Dey observed the statutory provisions in the breach.
31. Section 16 of the 2013 Act is an important provision in the 2013 Act. It ordains that notwithstanding anything contained in the Right to Information Act, 2005, the contents of the complaint under section 9, the identity and addresses of the aggrieved woman, the respondent and their witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the ICC and the action taken in pursuance thereof by the employer under the provisions of the 2013 Act shall not be published, communicated or made known to the public, press and media in any manner. There is, however, no provision empowering the ICC to keep the identity of the aggrieved woman and/or her witnesses undisclosed to the respondent or to keep the complainant away from the glare of the respondent in course of proceedings conducted by the ICC to inquire into the complaint. The scheme of the 2013 Act and the 2013 Rules, therefore, is not such that it goes an extra distance to ensure that the identity of the complainant and her witnesses are kept hidden from the respondent. We have found that there has been a real attempt on the part of the ICC to keep the complainants away from the respondent, considering their safety and security as well as to 19 maintain confidentiality. Whether it was a wise or prudent step is not the question here. The ICC being a creature of section 4 of the 2013 Act, it is open to serious doubt as to whether it could have taken recourse to any step to protect the complainants which does not find an express sanction in the 2013 Act and/or the 2013 Rules. Thus considered, it has to be held that the ICC faltered by acting in a manner not authorized by law.
32. We now proceed to take note of what the CCS (CCA) Rules, which admittedly governed Mr. Dey, provides. Even before advent of the 2013 Act but giving due regard to the decision of the Supreme Court in Vishaka (supra), rule 14 of the CCS (CCA) Rules was amended by the introduction of a proviso to sub-rule (2) with effect from July 10, 2004, reading as follows:
"Provided that where there is a complaint of sexual harassment within the meaning of Rule 3-C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry of Department or Office for inquiring into such complaints, shall be deemed to be the Inquiring Authority appointed by the Disciplinary Authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules."
33. We have noticed section 28 of the 2013 Act, referred to by Mr. Datta. The expressions, "in addition to" and "not in derogation of" mean the same thing -- that the 2013 Act is an additional provision and is not intended to take away the right of an employee-respondent under the service rules that bind him in the discharge of service under an employer. 20
34. Enactment of the 2013 Act notwithstanding, rule 14 of the CCS (CCA) Rules (providing the procedure for imposing major penalties) and rule 15 (providing for action on the inquiry report) have not been touched. Our reading of the 2013 Act and the CCS (CCA) Rules is that, a synthesis must be brought about between the two while an employer proceeds to inquire into a complaint of sexual harassment at the workplace. Certain salient features of the 2013 Act in regard to the manner of holding inquiry are these. Sub-section (1) of section 11 of the 2013 mandates an inquiry to be held in accordance with the service rules applicable to the respondent (emphasis supplied) and where no such rules exist, in such manner as may be prescribed (meaning thereby the 2013 Rules). The manner of holding inquiry under the 2013 Act is traceable to rule 7 of the 2013 Rules. Broadly, it requires furnishing copy of the complaint to the respondent, extending to him an opportunity to respond to the complaint, and proceeding with the inquiry in accordance with the principles of natural justice (emphasis supplied). Either party is free to produce witnesses in support of her/his claim. Principles of natural justice, instead of being excluded, have expressly been made applicable, and it stands to reason that a party and/or her/his witness vouching for a particular claim has to face cross-examination by the other party. The ICC [by virtue of sub-section (3) of section 11] while making an inquiry has been conferred with powers of the civil court, when trying a suit under the Code of Civil Procedure, in respect of the matters mentioned 21 therein. In case both the complainant and the respondent are employees, the second proviso to sub-section (1) recognizes the rule of audi alteram partem and states that the parties shall be entitled to a copy of the findings enabling them to make representation thereagainst before the ICC. The inquiry under the 2013 Act is, therefore, not complete until consideration of the representation of the parties, if they choose to so represent. Rule 9 of the 2013 Rules makes it explicit that except in cases where service rules exist, the ICC upon arriving at the conclusion that the allegation(s) against the respondent is/are proved, shall have the power to make recommendation to the employer of the nature as appearing therein.
35. Having regard to the above, if recourse has been taken to the provisions of the 2013 Act upon a complaint of sexual harassment of a woman at the workplace, the 2013 Act may not be construed as provisions excluding the requirement or obligation of the employer to follow the CCS (CCA) Rules in case of an employee like Mr. Dey, to whom the same admittedly apply. We hold that the ICC, on the face of the provisions contained in section 11 of the 2013 Act and rule 9 of the 2013 Rules, ought to hold the inquiry as far as practicable in accordance with the procedure laid down in the CCS (CCA) Rules.
36. Although not cited by any of the parties, we have had the occasion to look into the decisions of the Kerala High Court, in L.S. Sibu v. Air India Ltd., reported in (2016) 2 KLJ 434, and the Delhi High Court in B.N. Ray 22 v. Ramjas College & Ors., reported in 2012 (13) DRJ 277 (DB) and in Ashok Kumar Singh v. University of Delhi, reported in 2017 LLR 1014. Reference to these decisions is required to be made since the same, in some measure, deal with the aspect of cross-examination of the complainant and/or her witnesses by the respondent. In all these decisions, one finds the concern of the Courts to maintain anonymity of witnesses in course of proceedings initiated under the 2013 Act bearing in mind that the proceedings stem from an allegation of sexual harassment. The Hon'ble Judges of the respective High Courts appear to have taken the decision of the Supreme Court dated January 12, 2010 in SLP(C) No. 23060/2009 (Delhi University and Another v. Bidyug Chakraborty & Others) as a guide in this respect. The short order of the Supreme Court in Bidyug Chakraborty (supra) may be read:
"After hearing the learned counsel for the parties we are of the opinion that the respondents are entitled to a hearing and to cross- examine the witnesses produced by the University. We further direct that as this appears to be a case of sexual harassment the identity of the witnesses need not be revealed to the respondent or his counsel and for this purpose the respondent would be entitled to submit the questionnaire which will be put to the witnesses for their answers in writing. Mr. Rao states that the statements made by the witnesses without their names will be supplied to the respondents within two weeks from today. The said documents will also be supplied to Ms. Binu Tamta, the Advocate-Commissioner who is being appointed by this court for the purpose of getting answers to the questions to be supplied by the respondents. Ms. Tamta will ensure the anonymity of the witnesses.
Mr. Rao, further states that the respondents would be entitled to produce their entire defence evidence in addition to the aforesaid questionnaire and that all annexures which have not been supplied with the enquiry committee will also be handed over to the respondent without revealing the identity of the witnesses.23
We request Ms. Tamta to complete the entire proceedings as soon as possible, preferably within two months from today. She will be paid a sum of Rs.25,000/- as her fee by the petitioner No.1.
The special leave petition is disposed of accordingly."
37. Bare perusal of the aforesaid extract would reveal that it was an order passed by the Supreme Court while disposing of a special leave petition. It was not a decision rendered in exercise of the Supreme Court's appellate jurisdiction. Once it is clear that the appellate jurisdiction was not exercised by the Supreme Court, we say so and with all the humility at our command, that the decision in Bidyug Chakraborty (supra) does not constitute a binding precedent within the meaning of Article 141 of the Constitution. Additionally, the date of the aforesaid order of the Supreme Court showcases that it was an order passed on January 12, 2010, i.e., much prior to the enactment and implementation of the 2013 Act.
38. It also does not appear that attention of the Hon'ble Judges of the Kerala High Court and the Delhi High Court was drawn to the provisions of section 16 of the 2013 Act. Having regard to the statutory prohibition contained in section 16, we do not feel inclined to agree that the need to maintain anonymity of witnesses and/or the concern to devise a procedure to ensure that the complainant and/or her witnesses are not compelled to face the respondent was at all intended by the Parliament. In this connection, we may refer to the Latin maxim "expressio unius est exclusio alterius", which indicates that matters not mentioned expressly 24 are assumed not to be covered by the statute and are excluded. We are also of the view that when the Parliament in its wisdom has not mandated such procedure as has been directed to be followed by the decisions referred to above, it would amount to judicial legislation if by judicial orders the complainant and her witnesses are sought to be shielded from facing cross-examination by the respondent on the premise that they might, for some reason or the other, be disabled to express freely while being confronted in course of cross-examination. We do not intend to say that the interest of the complainant should not be protected but observe that it is always open to the ICC to modulate the mode and manner of cross-examination so that the right of a party to the proceedings under the 2013 Act, ~ be it the complainant or the respondent ~ to be treated fairly is not abrogated.
39. In Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, reported in AIR 1990 SC 1747, the Supreme Court reminisced:
"It is said, indeed rightly, that in seeking legislative intention, judges not only listen to the voice of the legislature but also listen attentively to what the legislature does not say."
The Court also observed:
"The words used in every sub-clause too have 'associations, echoes and overtones'. While construing such words, judges must, as Felix Frankfurter, J., said 'retain the associations, hear the echoes and capture the overtones'."
40. It is trite that the intention of the legislature is primarily to be discovered from the language used, which means that attention should be paid to what has been said and also to what has not been said. Here, the 25 intention of the legislature, when examined in the light of guidance provided above by the Supreme Court, does not lead us to the conclusion that the scheme of the 2013 Act or the rules framed thereunder in any manner prohibits cross-examination of a complainant or her witnesses before the ICC by the respondent in his presence. Cross-examination through a prepared questionnaire may not in all cases serve the purpose of an effective cross-examination. At times, the next question to be put to a witness could depend on the answer to the previous question. When the legislative intent behind enacting a particular provision is clear on a literal interpretation of the statute and the result is not absurd, it would be inadvisable to substitute by judicial wisdom of what the law should have been and how it should be applied.
41. We repeat, we have not been shown from the 2013 Act or the 2013 Rules that a respondent to a complaint of sexual harassment at the workplace, which is under inquiry, has no right to cross-examine a complainant. Cross-examination of the complainant by the respondent not having been excluded by express provision or by necessary implication, the right of cross-examination has to be read into the 2013 Act and the 2013 Rules. It is difficult to conceive that an inquiry held by the ICC can pass the test of judicial scrutiny and be held to be valid without an opportunity of cross-examination being extended to the respondent. Law relating to inquiries/trials against delinquent/accused in proceedings, ~ departmental or criminal ~ invariably recognizes the right of cross- 26 examination as a basic right of a fair hearing. Failure to extend opportunity of cross-examination in course of an inquiry/trial could legitimately give rise to a grievance at the instance of the delinquent/accused of being denied reasonable opportunity of defence, which is so very fundamental in relation to proceedings which have the potential of depriving such delinquent/accused of his valuable right under Article 21 of the Constitution.
42. The decision of a coordinate bench of this Court in Union of India & ors.
v. Shibram Sarkar, reported in (2019) 6 WBLR (Cal) 167, nullified the proceedings of inquiry under the 2013 Act for several reasons. One of the reasons was that the respondent had not been extended opportunity of cross-examination of the complainant as well as 3 (three) male railway servants who supported her version, holding that right of cross- examination is a basic right of a delinquent in departmental proceedings. The Court held that even though the Complaints Committee may have been justified in protecting the victim, absolutely no justification was found in its approach of having the statements of the male witnesses recorded in the absence of the respondent. It could be so that the decisions of the Kerala High Court and the Delhi High Court had no occasion to deal with a situation of the nature in Shibram Sarkar (supra), where some of the witnesses were male and hence, there is no discussion therein with regard to the right of the respondent to cross- examine male witnesses in his presence.
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43. Here too, the members of the ICC might have in their wisdom been justified to protect the complainants but denial of opportunity to cross- examine is vital and in given situations could strike at the root of the inquiry and completely invalidate it. In the present case, Mr. Dey has legitimately claimed that the statutory safeguards, which should have been made available to him by the 2013 Act as well as by the CCS (CCA) Rules, were not so extended and that the ICC being a creature of the former could not have risen above its source. The serious allegations against Mr. Dey notwithstanding, we are reminded of what the Supreme Court in one of its decisions observed, ~ "inadequacy of the law can hardly be a substitute for over zealousness". The Courts have to be zealous to guard against failure/omission/neglect of an employer to extend whatever procedural safeguards as are available to a respondent under the 2013 Act, to the extent of the legislative intent without compromising the aspect of ensuring safety and security of the complainant. Failure on the part of the ICC to give access to Mr. Dey to the complaints as well as allow opportunity of cross-examination of the complainants, therefore, cannot be countenanced.
44. At this stage, considering the ambivalence of judicial opinion, it may not be either imprudent or inappropriate to attempt a sketch of the broad procedure [upon synthesizing the provisions of the 2013 Act and the CCS (CCA) Rules] that could be adhered to in given circumstances where a complaint of sexual harassment within the meaning of the 2013 Act is 28 received either by the ICC, if constituted, or by an employer, against an employee to whom service rules, as referred to in section 11 of the 2013 Act and rule 9 of the 2013 Rules, which exist do apply. This could obviate misunderstandings and confusions that quite often arise while giving effect to the extant laws, and adopting the same would expectedly advance the object and purpose of introducing the 2013 Act in keeping with the directives of the Supreme Court by giving fair, reasonable and adequate opportunities to both parties to a proceeding. It cannot be ignored that the CCS (CCA) Rules have their roots in the Constitution and have stood the test of time. We add a caveat here. The procedure we propose to advert to upon our understanding of the laws is not intended to be and may not be operated as hard and fast rules. Their operation and/or application, obviously, would have to depend on the fact situation of each case.
45. Upon the constitution of a committee within the meaning of section 4 of the 2013 Act, a victim of sexual harassment may approach the same direct with a complaint. If the complaint is, prima facie, found to have substance and worthy of being inquired into, the commitee shall call upon the employee-respondent and explain to him what the allegations against him are. Copy of the complaint must be made available to him in course of the interaction. A written response to the complaint would always be desirable and, thus, the employee-respondent ought to be invited to submit his response in writing. If there is a denial of the 29 allegations, the committee must inquire into the complaint. In case the employee-respondent understands what the allegations levelled against him are and does not insist, the requirement of issuing a formal charge- sheet and handing over the same together with the lists of documents and witnesses could be dispensed with. However, if the employee- respondent insists, sub-rules (3) and (4) of rule 14 of the CCS (CCA) Rules need to be complied with. Should circumstances be such that conciliation can be brought about, section 10 of the 2013 Act permits the parties to proceed in that direction. Having regard to the proviso to sub- rule (2) of rule 14 of the CCS (CCA) Rules, the committee has to function as the inquiring authority and question of the disciplinary authority itself inquiring into the complaint, as is referred to in sub-rules (5) and (6) of rule 14, would not arise. Although the proviso says that inquiry could be held by the committee if a separate procedure has not been prescribed for such purpose, such provision has to yield to the provisions of sub- section (1) of section 11 of the 2013 Act mandating the committee to make inquiry in terms of the service rules applicable to the employee- respondent, should the same exist. The inquiry must thereafter, as of necessity, proceed in consonance with the principles of natural justice and also in terms of the other sub-rules of rule 14, to the extent practicable (emphasis supplied). It may not be necessary in all cases for an employer to appoint a Presenting Officer. Giving due regard to the status of the members constituting the committee, bias may not be 30 readily inferred if such members, in the absence of a Presenting Officer, question the complainant and the employee-respondent as well as their respective witnesses for eliciting the truth. Cross-examination of the complainant by the employee-respondent and/or her witnesses cannot be avoided, if asked for by him. Similar facility must also be extended to the complainant. Attempt of the committee to maintain anonymity of the complainant and/or her witnesses cannot overreach section 16 of the 2013 Act, for reasons discussed supra. It is an elementary principle that an inquiry officer cannot simply rely on the record as well as version/opinion derived from various persons which have not been put to the respondent to test the evidence by cross-examining them. Preventing effective exercise of the right of cross-examination may constitute a serious defect in the inquiry. During the inquiry and if so requested by the complainant, the committee would be empowered to suitably recommend to the employer any of the measures appearing in section 12 of the 2013 Act and rule 8 of the 2013 Rules. Although sub-rule (23) of rule 14 does not require the inquiring authority to make any recommendation in the report of inquiry but requires that the findings forming part of such report must be in respect of each article of charge and based on reasons, we feel persuaded to hold on a reading of sub- section (3) of section 13 of the 2013 Act that the inquiry report may contain recommendations of the nature spelt out in clauses (i) and (ii). In a case where it is proposed to make recommendation of the nature found 31 in sub-section (3) of section 13 after arriving at a finding that the allegation(s) has/have been proved, we hasten to add that the safeguard contained in the second proviso to sub-section (1) ought to be made available to the employee-respondent so that he gets an opportunity to persuade the committee either not to make any recommendation, or not to make any harsh recommendation even if called for on facts and in the circumstances. This is an additional opportunity, which flows from the second proviso to section 11 of the 2013 Act. It might appear at first blush that such provision would come into play where both the parties are employees. The definition of the term 'employee' as in section 2 (f) of the 2013 Act evidently does not cover a student of an institution, as in the present case, but there is no warrant for the proposition that the benefits of hearing and making representation, referred to in the second proviso to section 11, may not be made available to the respondent if the complainant is not an 'employee' of the 'employer', defined in section 2 (g) thereof. If such proposition were to be accepted, i.e., the second proviso has no application in case of the complainant being a non-employee, should the respondent be not heard? The answer to it cannot be such so as to deny opportunity of hearing to the respondent. If the opportunity of hearing cannot be denied, the opportunity of making representation cannot also be denied. If the committee considers the representation and overrules the points raised by the respondent, thereby leading to a recommendation contained in its report of inquiry, such report upon 32 being placed before the disciplinary authority must again be provided to the respondent so that he gets the opportunity of making a representation not only against the findings but also against the recommendation. The disciplinary authority upon consideration of the records of inquiry, the report of inquiry and the comments of the respondent on such report shall then proceed to pass an appropriate final order in exercise of power conferred by rule 15 of the CCS (CCA) Rules.
46. That Mr. Dey was not served with copies of the complaints and that he was not extended opportunity of cross-examination, however, do not appear to have been raised before the tribunal and, therefore, there appears to be no discussion in respect thereof. We have dealt with the issues, since the same have emerged from the documents now placed before us by the petitioners.
47. It is revealed from the impugned judgment that the tribunal was sufficiently impressed with the contention raised by Mr. Dey that there was no further enquiry by the ICC after submission of its initial report and that Mr. Dey was nailed with an order of dismissal based on a subsequent inquiry report to which he had no access and this constituted violation of the principles of natural justice.
48. Even if we discount the two (2) grounds on which the proceedings before the ICC stood vitiated, i.e., non-supply of copies of the complaints and failure to permit cross-examination, the ground on which the challenge 33 of Mr. Dey succeeded before the tribunal is sound and we hold the judgment and order of the tribunal unexceptionable. There can be no doubt that Mr. Dey's disciplinary authority (the Board of Governors) was the sole judge of facts. Having looked at the inquiry report dated March 26, 2015, the Board of Governors had decided not to agree with the inquiry report and resolved that the ICC, on remand, may conduct a further enquiry. The ICC initially dillydallied by raising frivolous pleas, one of which was that there was a pending writ petition before this Court at the instance of Mr. Dey. The Law Officer in the Tourism Department of the Government of West Bengal was right in observing that no order of stay being operative, there was no bar for the ICC to proceed to hold further inquiry by way of collection of evidence from the complainants. Admittedly, no further enquiry was conducted by the ICC and it proceeded to furnish its subsequent inquiry report, sometime in April, 2016, enclosing therewith the complaints of the complainants and giving its reasons as to why the allegations against Mr. Dey had been found to have merit. We agree with Mr. Datta that in terms of rule 15 of the CCS (CCA) Rules, further inquiry ought to have been conducted by the ICC in terms of the decision of the Board of Governors dated December 28, 2015; even if no further enquiry were or required to be conducted, Mr. Dey had the right to receive copy of the subsequent inquiry report and that the Board of Governors, without furnishing copy of the subsequent report of the ICC to Mr. Dey, could not have straight away determine that 34 his guilt having been proved, he deserved an order of dismissal together with launching of prosecution. Neither the 2013 Act nor the 2013 Rules speak of dispensation of the requirement of furnishing a copy of the inquiry report to the respondent, prior to disciplinary action being taken. In such view of the matter, there has been an egregious failure on the part of the Board of Governors of the institute to render justice to Mr. Dey. We, thus, share the concern expressed by the tribunal.
49. The contention on behalf of the petitioners before the tribunal that the original application was hit by the principle of res judicata, we are inclined to believe, was one raised in desperation. There are two reasons why such contention should fail. First, the writ petition that Mr. Dey had presented before this Court challenging initiation of the proceedings was not decided on merits; the writ petition stood withdrawn by him. The principle of res judicata is not attracted if issues are not decided and there is no discussion or finding rendered by the Court on the same subject matter. Secondly, since the tribunal was the sole repository of jurisdiction, as the court of first instance, to entertain a claim from the side of Mr. Dey in relation to the inquiry that had commenced under the 2013 Act, the learned Judge of the writ court had no jurisdiction to entertain the writ petition. Assumption of jurisdiction by the writ court was erroneous and any order passed in such writ proceedings, suffering from inherent lack of jurisdiction, being void, does not bind any party. In such a situation too, the principle of res judicata is not attracted. 35
50. What remains is the contention of Mr. Majumder that in terms of section 13(4) of the 2013 Act, the recommendation of the ICC is binding on the Board of Governors and, therefore, no procedural defect occasioned in dismissing Mr. Dey on the basis of such report which contained the recommendation that he should be dismissed from service. The proposition advanced by Mr. Majumder is nothing short of absurdity. The language employed in section 13(4) of the 2013 Act does not make it imperative for the disciplinary authority to act on the recommendations of the ICC by accepting it. The expression "act upon the recommendation"
would mean either accept or reject the recommendation, for reasons to be recorded in writing. If the recommendations were binding, it would cease to be a recommendation and partake the character of a command which obviously is not the legislative intent. We hold that the recommendation of the ICC has to be seen and understood as a recommendation, nothing more nothing less. It is entirely for the disciplinary authority to decide its next course of action upon giving the recommendation due consideration.
51. For the reasons aforesaid, we find no merit in the writ petition. The same stands dismissed at the admission stage, without calling for counter affidavit from Mr. Dey.
52. The order of the tribunal shall be complied with as expeditiously as possible, preferably within the time frame found in sub-section (4) of section 11 of the 2013 Act.
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53. We make it clear that Mr. Dey shall be free to raise all points that are available to him in defence as and when the inquiry before the ICC resumes in terms of the order of the tribunal.
54. There shall be no order as to costs.
(MADHUMATI MITRA, J.) (DIPANKAR DATTA, J.)