Orissa High Court
An Application Under Article 4 Of The ... vs Sambalpur University on 29 April, 2020
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA: CUTTACK
W.A. No. 506 of 2018
An application under Article 4 of the Orissa High Court Order,
1948 read with Clause 10 of the Letters Patent Act, 1992 read
with Chapter VIII Rule 2 of the Rules of the High Court of Orissa,
1948.
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Dr. Keshaba Ch. Panda ......... Appellant
-Versus-
Sambalpur University
and others ......... Respondents
For Appellant: - Mr. Asok Mohanty
(Senior Advocate)
Mr. Gouri Mohan Rath
For Respondents
No.1 & 2: - Mr. Prasanna Kumar Parhi
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P R E S E N T:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE MR. JUSTICE S. K. SAHOO
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Date of Judgment: 29.04.2020
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S. K. SAHOO, J. In this writ appeal, the appellant Dr. Keshaba
Chandra Panda seeks to set aside the impugned judgment and
2
order dated 29.08.2018 passed by the learned Single Judge of
this Court in W.P.(C) No.5598 of 2004 in rejecting the prayer
made by the appellant to quash the charges framed against him
by the disciplinary authority on 14.05.2003 and further directing
the respondents to furnish a copy of the enquiry report along
with the 2nd show-cause notice to the appellant and then to
proceed with proceeding.
2. The case of the appellant, in short, is that he was
appointed as Lecturer in Physics in Sambalpur University
(hereafter 'the University') during September 1979 and was
promoted to the post of Reader in the year 1993. There was no
blemish in his service career. The victim girl was appointed as
Junior Research Fellow on 14.08.2002 in the Department of
Physics by the Vice-Chancellor of the University. She was not
sincere with her research work for which she was cautioned time
and again. The victim as a Post-Graduate student for the
academic session 1998-2000 had the acquaintance with the
appellant. She also cooperated and participated in the research
work. As a project leader, it was the duty of the appellant to see,
remind, reprimand the fellows those who were working in the
project in order to have a good reputation of the project work.
The victim girl submitted her resignation on 30.09.2002 but the
3
same was not accepted with a hope that she would improve but
all the efforts made by the appellant ended in a fiasco. Finally
when the victim submitted her resignation on 24.02.2003, the
same was accepted on 28.02.2003.
While the matter stood thus, the father of the victim
girl made a complaint on 26.03.2003 before the Vice-Chancellor
of the University with regard to the sexual harassment of his
daughter by the appellant. The complainant alleged in the
complaint that the victim enrolled herself as a research scholar
under the appellant in a project namely, 'Studies in Nuclear
Reaction' and she never thought that her career would come to
an abrupt end for no fault of her. She had a brilliant academic
record in Physics and great enthusiasm in fundamental research
but her ordeal started after joining the project work. The
appellant as a guide talked with regard to unrelated work of the
research with the victim and was making amorous advances in
talks and gestures and used to comment about her dress and
looks. His lasciviousness and mischief were visible and his lewd
remarks and lecherous looks became a routine event. A national
symposium on nuclear physics was to be held in Chennai from
26th December to 30th December 2002. Around second week of
December 2002, the victim registered for the said national
4
symposium as was asked by her guide. Days before the event,
she was told that her railway ticket and accommodation had
been taken care of. The appellant told her that they would stay
together for which she was shocked and did not go to Chennai.
Thereafter the appellant became very irritable and uncooperative
with the victim and started troubling her. The appellant made a
second effort in February 2003 when the victim's 'Project
Definition' was to be done at IUC/DAEI, Calcutta Centre. Just two
days before the event i.e. 16th February 2003, the victim was
informed by the appellant about the programme and told that
they would stay together as there was no time for making
arrangements for separate accommodation. The victim
vehemently protested to it but the appellant told her that to earn
a Ph.D. degree, she had to bear all these and if she was
unwilling and try to divulge anything, she would be ruined. The
appellant warned the victim of the consequences of going
against him and often talked of his links with Chancellor's Office
and Minister of Higher Education.
The appellant received a letter on 07.04.2003 from
Professor P.K. Mohapatra, Convenor of Enquiry Committee to
remain present on 10.04.2003 at 09.30 a.m. in the Syndicate
Hall of the University in order to respond to the charges made
5
against him by the father of the victim. Pursuant to such letter,
the appellant appeared before the Enquiry Committee and
submitted his reply. Then he received another letter dated
12.04.2003 to appear before the Committee on 15.04.2003 at
09.30 a.m. The appellant submitted a written request before the
Committee on 15.04.2003 to supply the recorded statements of
all the persons examined by the Committee ex-parte at the first
instance for preparing an effective defence and then to give his
own statement. Enquiry was not completed on 15.04.2003. On
16.04.2003 some of the students appeared before the
Committee and stated that it was an effort to tarnish the image
of the appellant at the behest of some of the interested persons
having ill intention and motive. The Committee submitted its
report to the Vice-Chancellor on 16.04.2003/17.04.2003. After
receipt of the report, the Vice-Chancellor convened the Syndicate
meeting on 19.04.2003 for discussion. The Syndicate considered
the report of the Enquiry Committee and resolved to place the
appellant under suspension with immediate effect and
accordingly by order dated 19.04.2003, the appellant was placed
under suspension pending framing of charges. The charges were
framed against the appellant and it was placed before the
Syndicate for approval. The Syndicate after due deliberations
6
and as per resolution dated 12.05.03 approved the charges and
resolved to appoint a retired High Court Judge/retired District
Judge as Inquiring Officer as per the Odisha Civil Services
(Classification, Control and Appeal) Rules, 1962 (in short '1962
Rules'). Charges were served upon the appellant on 14.05.2003
and he was called upon to file his reply within thirty days. The
appellant sent a letter to the Registrar of the University on
12.06.2003 to supply the documents at an early date enabling
him to submit an effective explanation. On 06.08.2003 the
Registrar of the University sent a letter to the appellant
indicating that no other copies of any document in support of the
complaint petition dated 26.03.2003 was submitted except the
copy which had already been supplied to him along with the
charge sheet. The appellant was asked to inspect the documents
with prior permission of the Inquiring Officer on the date, time
and place fixed for such inspection. It is the case of the appellant
that the Registrar refused to supply the documents and a copy of
the preliminary report was not furnished to him and that he was
prevented to submit explanation. Again the appellant submitted
a representation on 05.10.2003 requesting the Registrar of the
University to supply the documents as per his letter dated
12.06.2003 enabling him to submit his reply. Being aggrieved,
7
the appellant filed an appeal before the Chancellor for supply of
documents, payment of subsistence allowance and also to revoke
the order of suspension which was kept pending for
consideration. While the matter stood thus, the appellant
received a letter from the Marshalling Officer to appear before
the Inquiring Officer on 12.01.2004 in the University Guest
House. The appellant pointed out to the Vice-Chancellor that he
was not given adequate opportunity to file his reply to the
charges for non-supply of documents. On 12.01.2004 the
appellant received a letter from the Inquiring Officer about his
non-appearance on that day and about the adjournment of the
proceeding to 21.01.2004. On 13.01.2004 the appellant was
intimated about the appointment of Mr. G.R. Dubey, a retired
District Judge as Inquiring Officer pursuant to the resolution of
the Syndicate. On 21.01.2004 the appellant requested the
Inquiring Officer to supply the copies of day to day order sheet of
the proceeding. The Inquiring Officer directed the appellant to
file his written statement by 31.01.2004 and accordingly the
appellant filed a list of documents/witnesses.
According to the appellant, the appointment of
Inquiring Officer was illegal. The Inquiring Officer was biased and
conducted the inquiry with undue haste and closed the same on
8
30.03.2004. The Inquiring Officer submitted the report to the
Registrar of the University which was placed before the
Syndicate on 24.04.2004. The Syndicate resolved to accept the
report of the Inquiring Officer and take action as per the
statutory provision. A copy of the enquiry report was not
furnished to the appellant before issuing 2nd show cause notice
on 24.04.2004. According to the appellant, the Inquiring Officer
had no role to suggest imposition of penalty on the delinquent
officer and the finding rendered by the Inquiring Officer is
perverse and that the resolution of the Syndicate also suffers
from non-application of mind.
3. The appellant preferred W.P.(C) No. 5598 of 2004 for
quashing the show-cause notice dated 24.04.2004 and also to
quash the charges framed against him on 14.05.2003.
4. Counter affidavit was filed by the University in the
writ petition wherein it is stated that the father of the victim girl
lodged a written complaint on 26.3.03 before the Vice-Chancellor
of the University making allegations of sexual harassment
against the appellant to the victim. A fact-finding enquiry was
conducted by an Enquiry Committee presided over by Professor
P.K. Mohapatra on 15.04.2003 and 16.04.2003 and a report was
submitted to the effect that there was prima facie case against
9
the appellant and accordingly, the Syndicate placed the appellant
under suspension as per the office order dated 19.04.2003. The
report of the Enquiry Committee was considered by the
Syndicate and the Syndicate resolved and approved the charges
against the appellant on 12.05.2003 and to appoint an Inquiring
Officer as per 1962 Rules. The Registrar of the University issued
the charges to the appellant on 14.05.2003 and the appellant
received the same on 19.05.2003. The departmental proceeding
was initiated under Statute 299 of the Odisha University First
Statutes, 1990 read with Rule 15 of the 1962 Rules. Mr. G.R.
Dubey, a retired District Judge was appointed as Inquiring Officer
and on completion of the inquiry, the Inquiring Officer submitted
his report to the Vice-Chancellor on 12.04.2004 in a sealed cover
which was placed before the Syndicate on 24.04.2004 and the
Syndicate accepted the recommendation of the Inquiring Officer
and resolved to issue show cause notice of dismissal against the
appellant and accordingly show cause notice was issued to the
appellant. In the counter affidavit, it is specifically denied that
there was any hastiness to close the proceeding rather the
inquiry commenced on 09.12.2003 and it was closed on
30.03.2004.
10
5. An additional affidavit was filed by the appellant
annexing some documents received through RTI Act. A specific
stand taken in the writ petition was reiterated regarding non-
supply of daily order sheet of the proceeding and copies of
statements of some of the witnesses recorded during the inquiry
on 19.03.2004 and 21.03.2004.
6. The learned Single Judge considering the
submissions made by the respective sides and placing reliance
on a number of citations has been pleased to hold that the
charges are clear and unambiguous and that the appellant
participated in the inquiry without any demur or protest and that
a battery of lawyers appeared for him and therefore, merely
because the Inquiring Officer was not palatable to the appellant,
it cannot be said that he was biased. It was further held that the
appellant was afforded fullest opportunity to defend his case and
that the inquiry was conducted in a free and fair manner and
that the allegation of bias and malafide against the Inquiring
Officer is a ruse and the learned Judge was not inclined to quash
the charges. Accordingly, the writ petition was disposed of with a
direction to the opposite parties to furnish a copy of the inquiry
report along with 2nd show-cause notice to the appellant and
11
thereafter the opposite parties were directed to proceed with the
matter.
7. Challenging the impugned judgment and order of the
learned Single Judge, Mr. Asok Mohanty, the learned Senior
Advocate for the appellant emphatically contended that the
complaint dated 26.03.2003 made against the appellant was
treated as the complaint of sexual harassment at the work place
and as per the declared law by the Hon'ble Supreme Court in the
case of Vishaka and others -Vrs.- State of Rajasthan and
others reported in (1997) 6 Supreme Court Cases 241, a
Complaints Committee was constituted by adhering to the
guidelines for conducting inquiry into such complaint and the
enquiry report of the said Complaints Committee was placed
before the Disciplinary Authority i.e. Syndicate and the Syndicate
after due deliberation passed final order of suspension as
penalty. Thereafter there was no scope for holding any further
inquiry. Elaborating his submissions, he contended that it was a
complaint of sexual harassment at work place and the
Complaints Committee was appointed to conduct inquiry under
Rule 15(4) of the 1962 Rules and the report of the Complaints
Committee was treated as inquiry report under Rule 15(7) of the
said Rules and the Syndicate deliberated on such inquiry report
12
and passed the final order dated 19.04.2003 imposing
suspension as penalty upon the appellant as per the mandates of
Vishaka law. The commencement of a second inquiry thereafter
by framing of charges on the basis of inquiry report of
Complaints Committee is wholly unwarranted. Vishaka provides
for one inquiry and there is no provision for the Disciplinary
Authority to completely set aside the previous inquiry. It was
further argued that the charges were framed against the
appellant when there was a decision of the Disciplinary
Authority/Syndicate not to hold another enquiry into the self-
same allegations on 19.04.2003. Such a decision was taken by
the Disciplinary Authority at the conclusion of a disciplinary
proceeding and after imposing suspension as penalty against the
appellant. The Disciplinary Authority acts as a quasi-judicial
authority and once it has arrived at such a decision, it cannot be
varied as per the will of the Disciplinary Authority itself. The
Disciplinary Authority has not found that its decision dated
19.04.2003 was contrary to the provisions of law or
unreasonable. It was argued that in spite of order of suspension
as penalty for the alleged misdemeanor after due process, the
charges framed on 14.05.2003 basing on the same cause of
action is hit under the principle of double jeopardy. It is further
13
argued that the learned Single Judge was not justified in not
quashing the charges as it intended to penalize the appellant for
the second time in respect of the self-same
misdemeanor/misconduct. According to the learned counsel,
even though this aspect was brought to the notice of the learned
Single Judge, yet no finding was given on it in the impugned
judgment. It is further submitted that the appellant was not
supplied with the documents along with the inquiry report which
he had sought for. According to the learned counsel, the
initiation of the proceeding for appointment of Inquiring Officer
before the receipt of the explanation, the biasness of Inquiring
Officer, non-supply of the copy of the inquiry report before issue
of show-cause notice, not giving a chance to the appellant to
submit a written statement of defence constitute serious
prejudice and it reflects malafideness for which the appellant
availed the discretionary jurisdiction of this Court under Article
226 of the Constitution but the points raised were not properly
adjudicated and the vital points raised remained unanswered for
which the impugned judgment and order is to be set aside.
8. Mr. Prasanna Kumar Parhi, learned counsel for the
University, however, contended that the Complaints Committee
as per Vishaka (supra) judgment was constituted on receipt of
14
the complaint dated 26.03.2003 from the father of the victim
addressed to the Vice-Chancellor which consisted of six members
out of which there were four women members. The Committee
was constituted for the purpose of collection of facts in regard to
the conduct and work of the appellant. The Committee during
the fact-finding preliminary enquiry held on 15.04.2003 and
16.04.2003 called upon twelve persons including the victim and
the appellant and recorded their statements and a report was
submitted to the effect that there was prima facie case against
the appellant and basing on such report and the resolution of the
Syndicate, the appellant was placed under suspension. The
departmental proceeding was initiated under Statute 299 of the
Odisha Universities First Statutes, 1990 read with Rule 15 of the
1962 Rules and since the Syndicate resolved to frame charges
against the appellant and to proceed in accordance with Rule 15
of the 1962 Rules and approved the charges and the proceeding
continued accordingly, it cannot be said that by framing of
charges on the basis complaint and fact-finding enquiry report,
there is commencement of any second inquiry and that the
charges famed is hit under the principle of double jeopardy. He
argued that as per Vishaka, whether a particular conduct
amounts to misconduct in employment as defined by the
15
relevant service rules is to be first enquired into by the
Complaints Committee and basing on the report submitted by
such Committee, appropriate disciplinary action can be initiated
by the employer in accordance with such service rules. He
emphasised that a fact-finding enquiry report submitted by an
Complaints Committee presided over by Professor P.K.
Mohapatra cannot be deemed to be an inquiry report under Rule
15(7) of the 1962 Rules inasmuch as such a report can be
prepared only after the framing of definite charges by the
disciplinary authority, filing of written statement of defence by
the Government servant, appointing an enquiring officer by the
disciplinary authority and examination of witnesses before the
inquiring authority. Since the fact-finding enquiry report was
submitted by the Complaints Committee without framing of
definite charges as per Rule 15(2) of the 1962 Rules, it cannot
be treated as an inquiry report contemplated under Rule 15(7) of
the said Rules. He argued that the points taken in the writ appeal
and raised during the argument that after the enquiry report of
Complaints Committee and placing the appellant under
suspension by the Syndicate, there is commencement of any
second inquiry and that the charges famed is hit under the
principle of double jeopardy were never raised in the writ petition
16
or in the additional affidavit filed by the appellant in the writ
petition and it was also not raised during argument of the writ
petition and therefore, the learned Single Judge has not dealt
with it in the impugned judgment. He submitted that the other
points raised by the learned counsel for the appellant have been
dealt with in the impugned judgment and there is no perversity
in it and therefore, the writ appeal should be dismissed.
9. We have carefully considered the submissions
advanced by the learned Counsel for the parties and perused the
documents available on record. However, before we proceed to
deal with the rival contentions, we consider it necessary to take
a quick glance to the Vishaka judgment inasmuch as the main
contentions of the parties revolve around this judgment as well
as Rule 15 of the 1962 Rules.
A three Judge Bench of the Hon'ble Supreme Court
by a rather innovative judicial law making process issued certain
guidelines in Vishaka judgment which was delivered on
13.08.1997. The Hon'ble Court 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 work
places, laid down the guidelines and norms for due observance
17
at all work places or other institutions, until a legislation is
enacted for the purpose. The Hon'ble Court in exercise of the
power available under Article 32 of the Constitution for
enforcement of the fundamental rights formulated it and it was
further emphasised that the same would be treated as the law
declared by this Court under Article 141 of the Constitution.
Under the heading of criminal procedure, it is observed, inter
alia, that where the conduct of the perpetrator amounts to a
specific offence under the Indian Penal Code or any other law,
the employer shall initiate appropriate action in accordance with
law by making a complaint with the appropriate authority. Under
the heading of disciplinary action, it is observed that where such
conduct amounts to misconduct in employment as defined by the
relevant service rules, appropriate disciplinary action should be
initiated by the employer in accordance with those rules. Under
the heading of complaint mechanism, it is observed that whether
or not such conduct constitutes an offence under law or a breach
of the service rules, an appropriate complaint mechanism should
be created in the employer's organization for redress of the
complaint made by the victim. Such complaint mechanism
should ensure time bound treatment of complaints. Similarly
under the heading of Complaints Committee, it is observed that
18
the said complaint mechanism, should be adequate to provide,
where necessary, a Complaints Committee, a special counselor
or other support service, including the maintenance of
confidentiality and the Complaints Committee should be headed
by a woman and not less than half of its member should be
women. Further, to prevent the possibility of any undue pressure
or influence from senior levels, such Complaints Committee
should involve a third party, either NGO or other body who is
familiar with the issue of sexual harassment. The Complaints
Committee was directed to make an annual report to the
Government department concerned of the complaints and action
taken by them and the employers and person in charge shall also
report on the compliance with the aforesaid guidelines including
on the reports of the Complaints Committee to the Government
department. It was further directed that the guidelines and
norms should be strictly observed in all the work places for the
preservation and enforcement of the right to gender equality of
the working women and such directions were held to be binding
and enforceable in law until suitable legislation is enacted to
occupy the field.
In the case of Apparel Export Promotion Council
-Vrs.- A.K. Chopra reported in (1999) 1 Supreme Court
19
Cases 759 which was decided on 20.01.1999, the Hon'ble
Supreme Court while analysing the definition of 'sexual
harassment' as suggested in the case of Vishaka judgment, held
as follows:-
"26. There is no gainsaying that each incident of
sexual harassment at the place of work, results
in violation of the fundamental right to gender
equality and the right to life and liberty - the two
most precious fundamental rights guaranteed by
the Constitution of India. As early as in 1993 at
the ILO Seminar held at Manila, it was
recognized that sexual harassment of woman at
the workplace was a form of 'gender
discrimination against woman'. In our opinion,
the contents of the fundamental rights
guaranteed in our Constitution are of sufficient
amplitude to encompass all facets of gender
equality, including prevention of sexual
harassment and abuse and the courts are under
a constitutional obligation to protect and
preserve those fundamental rights. That sexual
harassment of a female at the place of work is
incompatible with the dignity and honour of a
female and needs to be eliminated and that
there can be no compromise with such
violations, admits of no debate. The message of
international instruments such as the
Convention on the Elimination of All Forms of
20
Discrimination Against Woman, 1979 ("CEDAW")
and the Beijing Declaration which directs all
State parties to take appropriate measures to
prevent discrimination of all forms against
women beside taking steps to protect the
honour and dignity of women is loud and clear.
The International Covenant on Economic, Social
and Cultural Rights contains several provisions
particularly important for woman. Article 7
recognises her right to fair conditions of work
and reflects that women shall not be subjected
to sexual harassment at the place of work which
may vitiate working environment. These
international instruments cast an obligation on
the Indian State to gender sensitise its laws and
the Courts are under an obligation to see that
the message of the international instruments is
not allowed to be drowned......
29......In a case involving charge of sexual
harassment or attempt to sexually molest, the
courts are required to examine the broader
probabilities of a case and not get swayed by
insignificant discrepancies or narrow
technicalities or dictionary meaning of the
expression "molestation". They must examine
the entire material to determine the genuineness
of the complaint. The statement of the victim
must be appreciated in the background of the
entire case. Where the evidence of the victim
21
inspires confidence, as is the position in the
instant case, the courts are obliged to rely on it.
Such cases are required to be dealt with great
sensitivity. Sympathy in such cases in favour of
the superior officer is wholly misplaced and
mercy has no relevance....."
The Vishaka judgment was again brought to the
notice of the Hon'ble Supreme Court in the nature of public
interest litigation in the case of Medha Kotwal Lele and Ors.
-Vrs.- Union of India reported in (2013) 1 Supreme Court
Cases 297 raising principally the grievance that women continue
to be victims of sexual harassment at workplaces and the
guidelines in Vishaka are followed in breach in substance and
spirit by State functionaries and all other concerned and the
women workers are subjected to harassment through legal and
extra legal methods and they are made to suffer insult and
indignity, after hearing the learned Attorney General and learned
Counsel for the States, the Hon'ble Court on 26.04.2004 directed
as follows:
"Complaints Committee as envisaged by the
Supreme Court in its judgment in Vishaka's case
will be deemed to be an inquiry authority for the
purposes of Central Civil Services (Conduct)
Rules, 1964 (hereinafter called 'CCS Rules') and
the report of the complaints Committee shall be
22
deemed to be an inquiry report under the CCS
Rules. Thereafter the disciplinary authority will
act on the report in accordance with the rules."
The Hon'ble Court while disposing of the matter in
Medha Kotwal Lele (supra) finally on 19.10.2012, held as
follows:-
"16. In what we have discussed above, we are
of the considered view that guidelines in
Vishaka should not remain symbolic and the
following further directions are necessary until
legislative enactment on the subject is in place.
(i) The States and Union Territories which
have not yet carried out adequate and
appropriate amendments in their respective Civil
Services Conduct Rules (By whatever name
these Rules are called) shall do so within two
months from today by providing that the report
of the Complaints Committee shall be deemed to
be an inquiry report in a disciplinary action
under such Civil Services Conduct Rules. In
other words, the disciplinary authority shall treat
the report/findings etc. of the Complaints
Committee as the findings in a disciplinary
inquiry against the delinquent employee and
shall act on such report accordingly. The findings
and the report of the Complaints Committee
shall not be treated as a mere preliminary
investigation or inquiry leading to a disciplinary
23
action but shall be treated as a finding/report in
an inquiry into the misconduct of the
delinquent."
Therefore, in the path breaking Vishaka judgment,
the Hon'ble Supreme Court made it clear that the Complaints
Committee created in the employer's organization after receipt of
complaint of sexual harassment has to enquire into the matter
and prepare a report indicating therein as to whether the
conduct of the alleged perpetrator employee constitutes an
offence under law or a breach of service rules. If as per the
report submitted, the conduct amounts to a specific offence
under the Indian Penal Code or any other law, the employer shall
initiate appropriate action against the employee in accordance
with law by making a complaint with the appropriate authority.
Similarly if as per the report submitted, the conduct of the
employee amounts to misconduct in employment as defined by
the relevant service rules, appropriate disciplinary action shall be
initiated by the employer in accordance with such rules. In view
of the interim order dated 26.04.2004 passed in the case of
Medha Kotwal Lele (supra), the Complaints Committee as per
Vishaka case will be deemed to be an inquiry authority for the
purposes of CCS Rules and the report of the Complaints
Committee shall be deemed to be an inquiry report under such
24
Rules and the disciplinary authority will act on the report in
accordance with the Rules. The final order passed in the case of
Medha Kotwal Lele (supra) made it clear that the disciplinary
authority shall treat the report/findings etc. of the Complaints
Committee as the findings in a disciplinary inquiry against the
delinquent employee and shall act on such report accordingly.
The findings and the report of the Complaints Committee shall
not be treated as a mere preliminary investigation or inquiry
leading to a disciplinary action but shall be treated as a
finding/report in an inquiry into the misconduct of the
delinquent.
A comprehensive legislation was enacted by way of
the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 (hereafter '2013 Act')
keeping in view Vishaka judgment to provide for safe, secure
and enabling environment to every woman, irrespective of her
age or employment status free from all forms of sexual
harassment which came into force on 09.12.2013. The
notification in that respect is given herein below:
MINISTRY OF WOMEN AND CHILD DEVELOPMENT
NOTIFICATION
New Delhi, the 9th December, 2013
25
S.O. 3606(E).--In exercise of the powers
conferred by sub-section (3) of Section 1 of the
Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act,
2013 (14 of 2013), the Central Government
hereby appoints the 9th day of December, 2013
as the date on which the provisions of the said
Act shall come into force.
[F. No. 19-5/2013-WW]
Dr. SHREERANJAN, Jt. Secy.
The Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Rules, 2013 was also
framed to carry out the provisions of 2013 Act.
10. Keeping in view the ratio laid down in the aforesaid
judgments of the Hon'ble Supreme Court, we find the following
undisputed factual aspects from the entire scenario of the case:
(i) The father of the victim girl lodged a written
complaint on 26.03.2003 before the Vice-
Chancellor of the University making
allegations of sexual harassment against the
appellant to the victim;
(ii) A Complaints Committee was constituted for
the purpose of collection of facts in regard to
the conduct and work of the appellant which
26
consisted of six members out of which there
were four women members;
(iii) The Complaints Committee during enquiry
held on 15.04.2003 and 16.04.2003 called
upon twelve persons including the victim and
the appellant and recorded their statements;
(iv) The Complaints Committee submitted its
report to the Vice-Chancellor to the effect that
there was prima facie case against the
appellant;
(v) Basing on such report, the Vice-Chancellor
convened the Syndicate meeting on
19.04.2003 for discussion. The Syndicate
considered the report of the Enquiry
Committee and resolved to place the appellant
under suspension with immediate effect and
accordingly by order dated 19.04.2003, the
appellant was placed under suspension;
(vi) The majority of Syndicate members also
opined regarding initiation of departmental
inquiry against the appellant;
(vii) The Syndicate resolved and approved the
charges against the appellant on 12.05.2003
and to appoint an Inquiring Officer as per
1962 Rules;
27
(viii) Mr. G.R. Dubey, a retired District Judge was
appointed as the Inquiring Officer vide
Syndicate resolution dated 19.11.2003 who on
completion of the inquiry submitted his report
to the Vice-Chancellor on 12.04.2004 in a
sealed cover;
(ix) The sealed cover containing report of the
Inquiring Officer was placed before the
Syndicate on 24.04.2004 and the Syndicate
accepted the findings and recommendations of
the Inquiring Officer and resolved to issue
show cause notice of dismissal against the
appellant;
(x) The show cause notice of dismissal was issued
to the appellant on 24.04.2004 by the
Registrar of the University.
At this stage, it would be profitable to refer Statutes
299 and 301 of the Odisha Universities First Statutes, 1990.
Statute 299 comes under Chapter VI which relates to
Classification Control Discipline and Appeal and it states that
Rules 12, 15 and 16 of the Odisha Civil Services (Classification,
Control and Appeal) Rules, 1962 as amended from time to time
and the Government clarification issued thereunder in the matter
of suspension and for imposing major and minor penalties, shall
apply mutatis mutandis to all employees. The words "mutatis
28
mutandis" used in statute means that the application of
provisions will be with necessary changes and it cannot be
adopted as if it is to be read as it is. In the case of The
Rajasthan State Industrial Development and Investment
Corporation -Vrs.- Diamond and Gem Development
Corporation Ltd. reported in (2013) 5 Supreme Court
Cases 470, it is held that the phrase "mutatis mutandis" implies
that a provision contained in other part of the statute or other
statutes would have application as it is with certain changes in
points of detail. Under Statute 301, it is mentioned that the
following penalties may for good and sufficient reasons be
imposed on an employee i.e. (i) fine; (ii) censure; (iii)
withholding of (a) increment, (b) promotion; (iv) recovery from
pay of the whole or part of any pecuniary loss caused to the
University by negligence or breach of orders; (v) suspension;
(vi) reduction to a lower service, grade or post or to a lower
time-scale or to a lower stage in a time-scale; (vii) compulsory
retirement; (viii) removal from service which shall not be a
disqualification for future employment; (ix) dismissal from
service which shall be a disqualification for future employment in
the University. In the explanation to the said Statute, it is
29
mentioned as which actions shall not amount to a penalty within
the meaning of this Statute.
Thus in the matter of suspension and for imposing
major and minor penalties on an employee of the University as
specified under Statute 301, Rules 12, 15 and 16 of the 1962
Rules are to be followed.
11. The question that now crops up for consideration is
whether after the Complaints Committee submitted its report to
the Vice-Chancellor to the effect that there was prima facie case
against the appellant and the Syndicate in its meeting on
19.04.2003 considered such report and resolved to place the
appellant under suspension with immediate effect and
accordingly, the appellant was placed under suspension by order
dated 19.04.2003, is it permissible under law for the disciplinary
authority to take recourse to Rule 15 of 1962 Rules virtually from
the beginning by framing definite charges, inviting the appellant
to submit written statement of defence, to appoint an enquiring
officer and then the inquiring authority to inquire into the matter
and prepare the inquiry report at the conclusion of inquiry as per
sub-rule (7) of the said Rule. The answer would be an emphatic
'No'. The reason is that as per law laid down by the Hon'ble
Supreme Court, the Complaints Committee constituted will be
30
deemed to be an inquiry authority for the purposes of 1962
Rules and the report of the Complaints Committee shall be
deemed to be an inquiry report as per sub-rule (7) of the Rule
15 and not a mere preliminary investigation or inquiry report
leading to a disciplinary action. Such a report has to be treated
as a finding/report in an inquiry into the misconduct of the
appellant. The Syndicate basing on such inquiry report and after
due deliberation has passed the order dated 19.04.2003
imposing suspension as penalty upon the appellant which is as
per the mandates of Vishaka law. Once the stage of 15(7) of
1962 Rules has reached on the submission of the inquiry report
of the Complaints Committee, there is no question of reverting
back the stages enumerated under sub-rules (1) to (6) of 1962
Rules. We are of the humble view that once the inquiry report of
the Complaints Committee is prepared at the conclusion of
inquiry, it is to be treated as a finding/report in an inquiry into
the misconduct of the delinquent and framing of definite charges
in consonance with Rule 15(2) of 1962 Rules thereafter by the
disciplinary authority amounts to commencement of second
inquiry which is not permissible in law. Framing of definite
charges by the disciplinary authority will be on the basis of the
allegations on which the inquiry is to be held. Once the inquiry is
31
completed by the Complaints Committee and inquiry report is
prepared, the question of framing charges does not arise. Even
though as per Vishaka judgment, whether a particular conduct
amounts to misconduct in employment as defined by the
relevant service rules is to be first enquired into by the
Complaints Committee and basing on the report submitted by
such Committee, appropriate disciplinary action can be initiated
by the employer in accordance with such service rules but since
as per Medha Kotwal Lele (supra) case, findings and the
report of the Complaints Committee shall be treated as a
finding/report in an inquiry into the misconduct of the delinquent
and disciplinary authority shall act on such report accordingly
and in the case in hand, the Syndicate has acted on the report of
the Complaints Committee and imposed penalty of suspension,
no further inquiry is permissible.
When the proceeding was dealt with right from the
beginning as per guidelines framed in Vishaka's case which was
the law declared by the Hon'ble Supreme Court under Article 141
of the Constitution of India and the directions were held to be
binding and enforceable in law and the Hon'ble Court on
26.04.2004 directed in the case of Medha Kotwal Lele (supra)
that Complaints Committee as envisaged in Vishaka's case will
32
be deemed to be an inquiry authority for the purposes of CCS
Rules and the report of the complaints Committee shall be
deemed to be an inquiry report under the CCS Rules and
thereafter the disciplinary authority will act on the report in
accordance with the rules, even though the show cause notice of
dismissal has been issued to the appellant on 24.04.2004 (which
was two days prior to the order dated 26.04.2004) by the
Registrar of the University basing on the report submitted by the
Inquiring Officer to the Vice-Chancellor on 12.04.2004 and
thereby giving thirty days time to the appellant to submit his
show cause on such notice and since the cause of action was still
surviving, therefore, the proceeding has to be dealt as per the
aforesaid order dated 26.04.2004.
Even though the ground of commencement of second
inquiry with the framing of charges on 14.05.2003 was not
specifically taken in the writ petition and seems to have been
taken in the writ appeal and canvassed during hearing of the
case but since the point goes to the root of the matter relating to
the jurisdiction of the disciplinary authority in framing the
charges at that stage and commencing inquiry afresh after
submission of inquiry report of the Complaints Committee, in the
interest of justice, we cannot ignore the same.
33
12. In view of the foregoing discussions, we are of the
humble view that the view taken by the learned Single Judge is
not sustainable in the eye of law. Accordingly, the charges
framed against the appellant on 14.05.2003 and the show cause
notice of dismissal issued to the appellant on 24.04.2004 by the
Registrar of the University basing on the report submitted by the
Inquiring Officer to the Vice-Chancellor on 12.04.2004 stand
quashed.
The writ appeal is allowed. The impugned judgment
and order of the learned single Judge is hereby set aside.
The parties are directed to bear their own costs.
..........................
S.K. Sahoo, J.
S. Panda, J. I agree.
.........................
S. Panda, J.
Orissa High Court, Cuttack The 29th April 2020/Pravakar/Sisir