Gauhati High Court
The Tezpur University & Anr vs Dr. C S H N Murthy on 24 June, 2016
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
WA 195/2015
1. Tezpur University, Represented by its Vice-
Chancellor, Nampam, Tezpur, District-
Sonitpur, Assam.
2. The Registrar, Tezpur University, Nampam,
Tezpur, District- Sonitpur, Assam.
3. Sri D.N. Saikia, Inquiry Officer, IAS(Retd),
House No. 39, Sapta Swahid Path, Saru
Motoria, Dispur, Guwahati-781006, Assam.
..........Appellants
-Vs-
Dr. C.S.H.N. Murthy,
Professor,
Department of Mass Communication & Journalism,
Tezpur University,
Napam, Tezpur,
District- Sonitpur, Assam
.......Respondent.
For the appellant : Mr. N.C. Das, Sr. Advocate.
Mr. B. Choudhury, Adv.
Mr. A. Das, Adv.
For the respondent : Dr. C.S.H.N. Murthy (appearing in person).
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON'BLE MR. JUSTICE SUMAN SHYAM
Date of hearing : 09/06/2016
Date of Judgement : 24/06/2016
WA 195/2015 Page 1 of 30
JUDGEMENT AND ORDER (CAV)
Sum an Shyam , J,
1. The judgement and order dated 19/06/2015 passed in WP(C) No. 6558/2013, by means of which the learned Single Judge had interfered with the order of penalty dated 08/11/2013 removing the respondent from service, is under challenge in the present appeal.
2. Heard Mr. N.C. Das, learned senior counsel assisted by Mr. B Choudhury, learned counsel appearing for the appellants. Also heard Prof. CSHN Murthy, the respondent appearing in person.
3. At the outset we wish to put on record the fact that considering the complex nature of the issues involved in this proceeding, this Court had offered the services of a Lawyer to the respondent since he was earlier represented by an Amicus Curiae in the proceeding before the learned Single Judge. However, the said offer of this Court had been declined by the respondent stating that he would prefer to argue the case himself.
4. The facts of the case, briefly stated, are as follows :-
(i) The respondent was initially appointed as an Associate Professor in the Department of Mass Communication and Journalism (MCJ) of Tezpur University vide order dated 21/10/2009. Thereafter, the respondent was promoted as the Head of Department (HoD) of the MCJ.
(ii) On 25/05/2013, a student of 4th Semester of the department of MCJ, viz. Ms. Daisy Kalita had lodged a written complaint before the Chairperson of the Sexual Harassment Cell of the University, complaining that the respondent had made an implicit proposal to her WA 195/2015 Page 2 of 30 offering to give good grade and help her in her dissertation, which seemed to be sexual in nature. A request was, therefore, made to probe into the matter and take necessary action immediately.
(iii) Thereafter, on 27/05/2013, Daisy Kalita had addressed another complaint to the Chairperson of the Sexual Harassment Cell of the University giving a detail account of the incident that took place involving the respondent. On 27/05/2013 itself, 3 (three) other students of PGDMMC Department of the MCJ, viz. Smt. Reema Kundu, Smt. Anusua Chatterjee and Smt. Supriya Ghosh had also addressed a similar complaint by e-mail to Ms. Joya Chakraborty, Assistant Professor, Department of MCJ, making allegations of sexual harassment against Professor CHSN Murthy i.e. the respondent.
(iv) On receipt of the said complaint, an emergent meeting of the Complaint Committee on Sexual Harassment (herein after referred to as "CCSH") was convened on the very next day i.e. 28/05/2013 wherein as many as 5 (five) members, besides 3 (three) "neutral" invitees were present. The committee examined the witnesses present including the complainant i.e. Ms. Daisy Kalita, the respondent and the other witnesses. On the basis of their testimony as well as the materials available on record, the "CCSH" had arrived at a conclusion that the respondent was guilty of committing sexual harassment to the lady student Daisy kalita. Accordingly, the "CCSH" had made the recommendation that the respondent be terminated from service with immediate effect.WA 195/2015 Page 3 of 30
(v) Based on the recommendation dated 28/05/2013, the appellant No. 2 had issued an order dated 31/05/2013 initiating a disciplinary proceeding against the respondent in respect of the aforesaid charge of misconduct brought against him and in the mean time he was placed under suspension with effect from 01/06/2013. On 18/06/2013, a statement containing the allegation of misconduct was served upon the respondent asking him to submit his written statement of defence within 10(ten) days of receipt of the communication. The notice dated 18/06/2013 not only indicated the documents and the witnesses that would be relied upon by the authorities for establishing the charge against the respondent but had also indicated the action that was proposed to be taken against him which was imposition of the major penalty of removal from service.
(vi) The reply dated 04/07/2013 submitted by the respondent not having been found to be satisfactory, an enquiry proceeding was initiated against him by appointing the appellant No. 3 as the Inquiry Officer. During the enquiry proceeding, a number of witnesses had been examined and the respondent was afforded opportunity of cross examining those witnesses. On an analysis of the materials on record, the Enquiry Officer was of the opinion that the charge brought against the respondent had been proved and, therefore, recommended disciplinary action against him.
(vii) Although, a copy of the Enquiry Report dated 11/09/2013 was furnished to the respondent giving him opportunity of make a representation against the same, yet, the respondent did not prefer any WA 195/2015 Page 4 of 30 such representation but on the contrary demanded that a fresh enquiry be conducted into the charge since according to the respondent, he was denied a fair opportunity of defending his case by the Inquiry Officer.
(viii) Since the respondent did not make any representation against the Enquiry Report 11/09/2013 and considering the fact that conducting a fresh enquiry on the same set of charges was not permissible under the University Rules, the appellant no. 1 had issued the order dated 08/11/2013 removing the respondent from the service of the University with immediate effect.
(ix) Aggrieved by the order dated 08/11/2013, the respondent as writ petitioner had approached this Court by filing WP(C) No. 6558/2013 which was allowed by the learned Single Judge by the impugned judgement and order dated 19/06/2015.
5. Mr. Das, learned senior counsel appearing for the appellants submits that a bare perusal of the materials available on record would go to show that the proceedings before "CCSH" as well as the Inquiry Officer Shri D.N. Saikia, IAS (Retd) were conducted in the total compliance of the requirement of the Rules and after giving all possible opportunities to the respondent to defend his case. Both the "CCSH" as well as the Inquiry Officer had recorded categorical findings based on evidence on record holding that the respondent was guilty of the charge of sexual harassment brought against him. As such, the learned Single Judge was not justified in sitting over appeal in respect of such findings and recording a contrary conclusion on a re-appreciation of the materials on record.
WA 195/2015 Page 5 of 30
6. By referring to the decisions of the Supreme Court in the case of State Bank of India and others Vs, R am esh Dinkar Punde reported in (2006) 7 SCC 212 as well as R egional M anager UP SR TC Etaw ah and others Vs. Hoti Lal and another reported in (2003) 3 SCC 605 , the learned senior counsel for the appellants submits that the scope of judicial review in case of misconduct and imposition of penalty under the Service Law jurisprudence is very limited in as much as the Court is only required to see whether the penalty imposed is on the basis of a fair enquiry wherein the charges had been established based on proper evidence . Relying upon another decision of the Supreme Court rendered in the case of Bank of India and others Vs. T. Jogram reported in AIR 2007 SC 2793 , the learned senior counsel submits that law is well settled that in the matter of disciplinary proceeding, the judicial review is not against the decision but the decision making process. According to him, in view of the decision of the Supreme Court in the case of M edha K otow al Lele and others Vs. Union of India reported in (2013) 1 SCC 297 , there was no need for the University to go for another enquiry and the report of the "CCSH" dated 28/05/2013 itself was sufficient to impose the penalty upon the respondent. But since the University was not aware of the said decision of the Supreme Court at that point of time, hence, the subsequent Enquiry was initiated. Therefore, submits Mr. Das, there was no flaw in the process adopted by the appellant University in issuing the order of penalty.
7. Resisting the arguments made by the learned counsel appearing for the appellants, Prof. CSHN Murthy has strenuously argued that the WA 195/2015 Page 6 of 30 alleged complaint of sexual harassment made against him was vague and the same was nothing but a conspiracy hatched by some of his rivals in the University who wanted to ensure his downfall because they were zealous of his rapid career advancement. Prof. Murthy has further stated that his credentials as a Professor of International repute had never been doubted by anybody and even the students of the MCJ department had given excellent reviews for the semester Autumn/Spring 2012, which would go to show that the students were highly satisfied with his performance and conduct as a Lecturer. While denying the allegation made against him Mr. Murthy submits that on the basis of such vague and un-substantiated allegations of sexual harassment, the University authorities could not have imposed a major penalty of removal from service upon him.
8. The respondent has also questioned the validity of the enquiry proceedings by stating that the statement of allegation did not contain any specific charge as a result of which his interest has been immensely prejudiced. The respondent has further contended that the decision of the authorities to go for a second enquiry by appointing Shri D.N. Saikia, IAS (retd) after all the evidence and the defence case was made known to the complainant was in flagrant violation of the Principles of Natural Justice and the order of penalty having been based on such enquiry, was liable to be quashed and asset aside on such count alone.
9. Referring to the decision of the Inquiry Officer to call for and examine additional witnesses on his own and that too without furnishing their names along with the statement of allegation, Prof. Murthy submits WA 195/2015 Page 7 of 30 that the same constitutes a serious irregularity in the conduct of the enquiry proceeding having a vitiating affect on the entire proceeding. The further complaint of the respondent is that the Inquiry Officer did not correctly record the statement of the witnesses during the cross examination conducted by the respondent nor was the authentic copy of cross-examination furnished to him as a result of which he has suffered serious prejudice . Referring to the aforesaid illegalities, the respondent has stated that the enquiry proceedings have been conducted in violation of the CCS(CCA) Rules and the Government circulars issued from time to time regulating the manner in which such proceedings are required to be conducted.Such being the position, the order of penalty dated 08/11/2013, according to Mr Murthy, was unsustainable in law and hence, had been rightly interfered with by the learned Single Judge. In support of his aforesaid arguments, Prof. Murthy as relied upon the following decisions :-
(i) (2013) 1 SCC 297 (Medha Kotwal Lelel & Ors Vs. Union of India);
(ii) (2006) DLT 346 (Sandeep Khurana Vs. Delhi Transco Ltd.
& Ors) (Delhi High Court);
(iii) Central Administrative Tribunal, Delhi judgement dated 15.07.2014 in TA No. 120/2013 (Dr. S.K. Ds Vs. Union of India and others);
(iv) (1970) 3 SCC 548 (Surat Chandra Chakraborty Vs. State of W.B)
(v) (1971) 2 SCC 102 (K.R. Deb Vs. CCE );
(vi) AIR 1958 Raj 38 (Dwarkachand Vs. State of Rajasthan);
(vii) Supreme Court judgement in A.L. Kalra Vs. The Project & Equipments ;
WA 195/2015 Page 8 of 30
(viii) Supreme Court judgement in Union of India & Ors. Dipak Mali;
(ix) Supreme Court judgement in G.N. Nayak Vs. Goa University;
(x) Supreme Court judgement in A.K. Kripak & Ors Vs. UOI & Ors;
(xi) Supreme Court judgement in Deepali Gundu Surawase V. Kranti Junior Adhyapak & Ors.
10. We have given our anxious consideration to the submissions made by and on behalf of the rival parties and have also meticulously examined the materials available on record. Considering the sensitive nature of issues involved in this case, we deem it appropriate to quote the complaint made by Ms. Daisy Kalita and the other students before the Sexual harassment Cell of the University. On 25/05/2013, the following complaint was made by Ms. Daisy Kalita "To The Sexual Harassment Cell, Tezpur University.
Date - 25th May, 2013 Sub :- Complaint against Harassment.
Respected Ma'am, This is to inform you that I am a student of Mass Communication and Journalism, 4th Semester, I would like to make a complaint against the HOD, Dr. CSHN Murthy, for his implicit proposal towards me for the sake of grade and the completion of my dissertation, which seemed to be sexual in nature. I, hereby, request you to strictly probe into the matter and take necessary actions immediately.
WA 195/2015 Page 9 of 30 Yours faithfully, Daisy Kalita MCM 11026."
11. Thereafter, on 27/05/2013, Daisy Kalita had filed an additional complaint supplying in details, the facts and particulars on which the complaint dated 25/05/2013 was based. The complaint dated 27/05/2013 gives graphic description of the entire incident, the depictions whereof, makes extremely disturbing reading. The complaint dated 27/05/2013 is,therefore, quoted here under :-
"To the Chairperson, Sexual Harassment Cell, Tezpur University.
27.05.13 Mr. P.J. Daimari, asst. Professor, Dept of MCJ, was my designed guide for my final semester dissertation. However, when I submitted my report to sir on 24th May in the evening around 5 pm, sir refused to sign my report due to my irregularity in consulting him and directed me to seek the signature of the H.O.D., Professor C.S.H.N. Murthy on my report.
Accordingly, I approached Prof. Murthy with the report in his room as he does not sit in his designated HoD's room. Prof. Murthy went through the report and pointed out minor flaws in the report. After going through the entire report he agreed to sign on it and said that I should meet him at his home to correct the same. When I did not give any clear answer to his invitation he commented that the entire male faculty in the department sign the dissertations of their female students because they offer them 'something'. He specifically mentioned that two of my classmates Ananya and Bhanita are among the ones who had got work done by offering 'something' to their guides Dr. Uttam Kr. Pegu and P.J. Daimari respectively. He WA 195/2015 Page 10 of 30 then asked me what he will get from me if he signs on my dissertation report. When I said that I did not understand what he was indicating he said that this is the reason why I was facing this situation today and was unable to get my work done. He referred to some other research student who also did not understand the hint and hence was unable to get the research completed. During this time the dept. Office assistant Dipali Ba and my class mate Tinam had entered the room for short period of time and left immediately.
However when I did not give any answer to his proposal, he called me to his side of the table and made me sit on a chair next to him on his right side. He then again asked me to give him the details of my work. This time he found many more serious problems with my work and said that he will help me correct those only on the condition that I work on correcting the report with him at his home. At this time my classmate Bhanita called me on my mobile and told me that Jimmy sir was calling me. At the same time someone else also knocked on the door and Prof. Murthy stood up from his chair. Thinking that he was wanting to leave and that the space was very constricted, I also stood up from my place trying to make way of him. At this he held me by my waist and made me sit back on my chair and went out of the room. I also left the room after him and went to Jimmy sir's room.
I pleaded with him again to sign on my research dissertation and expressed my discomfort in working with the HoD. I told him "Murthy sir e mok ghoroloi matise, moy noaru, moy noaru" But he took the matter lightly and referred me back to HoD. By this time Prof. Murthy reached Jimmy sir's room. Both of them together scolded me and said that I was a confused girl. Prof. Murthy then enquired with him about who will take responsibility of my research. Jimmy sir replied that he will not have anything to do with my research and asked Prof. Murthy to do whatever he wants. While WA 195/2015 Page 11 of 30 coming out of the room Prof. Murthy asked me whether I was coming with him to his room or not. I was not willing to go to his room again and tried to climb down the stairs ahead of him and go out of the dept. But he again called me downstairs and asked me whether or not I was coming to his room. I was afraid that something very bad will happen to me academically and as it was my last few days in the department I somehow wanted to finish my research and be done with it. So, even though unwilling, I went to his room.
He then scolded me and said that it was cunning of me to run between him and Jimmy sir. He called me a "drama queen". He said that my heart was with Jimmy sir, and that is why I was going back to him again and again. He said that if I want a good grade, then I must go to his home. He again emphasised that all male faculty get something from their female research scholars. I said that I am not getting his point and wanted to leave. He asked my age and insisted that at the age of 23 I am a matured woman, so I should not pretend that I did not understand what he meant. He said that Reetamoni used to wear revealing dresses and expose in front of him trying to seduce him. But he did not get seduced. He said that "All girls think that I am impotent and so they run after other faculty like Uttam and Jimmy." He said that North East girls are very 'easily available and they have a lot of freedom to do whatever they want. They are not like Andhra girls who do not have so much freedom' and none of the girls in the class are 'pure'.
He then referred to a text message which had accidently been sent from my phone to him a few days back on 5th May at 12:04 pm. The message read "EgfXXX". He asked me the meaning of the message. I told him again that the message was sent accidentally as Madhusmita had made a call to him from my phone and I had kept the phone in my pocket without locking it so the message must have been accidentally typed and sent to the last called number. He said the message had a meaning. I denied. He then went to the white WA 195/2015 Page 12 of 30 board and wrote the meaning of the message as interpreted by him as "Easy to get fucked". I became uncomfortable in the situation and wanted to leave the room. I told him that I had not come here to do all these and wanted to leave. He said that he will give me marginal marks. If I wanted more marks then I must come to his home. I refused totally. He then asked me to give the report on Monday and he will sign on it. I said I am going and I have not come here to hear all these and started to open the door. He stopped me and asked my final answer yes or not. I said No and left.
I went out of the room and was sitting on the stairs of the dept when he again came to me asked where I would go now. I said I will go to the audio lab and then to Hostel. I came to the first floor and met Few of my friends there (Tinam, Shshmita, Manali, Tanaz) and told them that Prof. Murthy was scolding me for my research. I called Nabanita and was in the bathroom with her crying. He again came looking for me and inquired about me with Tinam, Sushmita, Manali, Tanaz. He then called me on my phone and asked me where I was. I said audio lab. He said he looked for me there and did not find me. When I said I was in bathroom he asked me to come to the Shopping complex to meet him. I came out of bathroom and again informed my friend Tinam about all that happened with me since evening. I went to complex.
In the shopping complex he was trying to act very normal as if nothing has happened and asked me not to get tensed. He also mentioned that VC sir had given some circular about marks and he will help me get good marks by telling the external if I did not mention about the incident to anybody.
Next day he kept on calling me again and again on my phone. When I did not answer his calls he kept on calling my friends Bhavna, Medha, Joya enquiring about my phone number and my location.WA 195/2015 Page 13 of 30
I have undergone extreme mental trauma and humiliation at the hands of my HoD. I have given above a detailed account of the incident of sexual harassment that happened with me on 24th May 2013 by Prof CSHN Murthy and urge upon you to initiate probe and appropriate action."
12. Besides the above, three students of PGDMMC had also made the following complaint through e-mail addressed to the Assistant Professor of the Department :-
"We have been witness to multiple occasions of sexually perverted comments by our HoD. Prof. CSHN Murthy since the first semester. We have been ignoring this for many times now considering him to be a senior faculty. But in the view of sexual harassment of one of our classmates, we are afraid that our silence has only been interpreted as our weakness. We would want to hereby enlist various incidents that have happened in the department with Prof. Murthy. 1 st sem ester Introduction to com m unication class
a) He talked about anal sex in front of the class and described vividly the details of a sexual encounter. The phrase "MITHA MITHA"
experience mentioned by him is still resonates in our minds. In no way it was related to the context of the topic being taught in the class.
b) In fact intermittent comments and discussion about sex related topics happened in the class on several occasions, which in any way was not part of the course content, for example, comment such as "KARENA KAPOOR IS A NATIONAL PROSTITUTE" was witnessed by the students present in the class.
3 rd sem ester (No class w th Dr. CHSN M urthy)
a) He called Madhusmita to his house to study with him for NET exam and he told her to keep it confidential as she was matured girl, WA 195/2015 Page 14 of 30 that if other would witness they would misinterpret it. She, however, did not go.
b) In the beginning of the semester, when Bhanita Devi went to his room to submit an assignment for conversion of I grade awarded to her in a particular course in the second semester, he started talking about Rita Moni Das, his ex-scholar. He said that he helped her to publish so many papers in international journals, still she betrayed him. Now she is in a relationship with the Dean, HSS and that he has seen her with him in his car several times. He said that earlier she also was in a relationship with Uttam Sir. He also mentioned to her that Perosh Sir & Kapou Maam, Uttam Sir & Rita Moni often go out together on night outs and exchange partners for an hour.
4 th sem ester (no clas w ith Dr. CHSN M urthy)
a) In the 4th semester, Madhusmita was called to his cabin , and he told her that her behaviour had changed from the first semester and that according to him, Madhusmita has list the PURITY and the INNOCENCE of being a village girl. He then asked her, a question "WHAT DO YOU THINK ABOUT ME, AS YOU HAVE HEARD ABOUT MY CONTROVERSY WITH RITA MONI?" and thus he started clarifying his relationship with Rita Moni. He said that "WE DIDN'T HAVE ANY PHYSICAL RELATIONSHIP THOUGH WE STAYED TOGETHER FOR 15 DAYS LIKE A FAMILY."
b) Not only Madhusmita, but he also used to call few other girls students from the 4th semester - Bhanita and Medha and discuss about Rita Moni and cry. It is highly contentious that the Rita Moni case was discussed only with the girl students by him.
c) He mentioned to one of the PGDMMC students that Miss Nandarani Choudhury is having relationship with A. Nagraj.
d) He mentioned to one of the girl students that many girl students have relationship with the male faculties of the department. It should be noted that he mostly chooses to calls the girls students for any kind of conversation in his cabin and asks them to close the door behind. WA 195/2015 Page 15 of 30
e) Incidentally, even after becoming the HOD, he sits in his personal cabin instead of the HOD's cabin.
f) The day after the department roof collapsed, around 10.30 in the morning, when Urshita and Madhusmita reached the department, Prof. Murthy was standing at the department entrance. He told them to meet him in his cabin in 5 minutes. When they went his scholar Oinam da was in his room. Prof. Murthy sent him out to get a bottle of water. Oinam came back with the water and as he left, Prof. Murthy asked him to close the door behind. Then he informed the girls that an all women committee will visit the department on 13th to probe into a complaint made by the students of the department to the university. He enquired if they knew about the complaint and who gave the complaint. He asked if there were any issues of sexual harassment. He told them that he has already spoken to the second semester students and that they gave him assurance that they were united in their support to him and will not speak against the department. He asked the girls also to do the same.
g) On 13th May, before the arrival of the enquiry committee, he spoke to a number of students in the visitor's room of the department and tried to convince them not to make any negative comment about the department to the committee.
h) On 25/03/13 Prof C S H N Murthy sent an sms to Medha Aich (4th semester) "Medha so many time umet me alone later one being regarding I grade. Did u find me asking favours of any kind? Neha marks were corrected by my persuasion. Let Neha tell if I asked favour. I am one who is fighting alone against this. I found some lapse on the girls side. Not all but some. This resulted in some girls not agreeing getting victimized. I am sensitizing every girl that came crying. I asked also about a message which she sent. She fumbled and said it was accidental. I told that such messages are cause of this culture 2 day. This effort to make her know the problem twisted again."
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13. The "CCSH" of the appellant No. 1 University, which had met on 28/05/2013, had examined a number of witnesses including Ms. Daisy Kalita, Prof. CSHN Murthy besides the students and teachers of the Department. The complainant Daisy kalita had appeared before the "CCSH" and reiterated the entire incident narrated in her complaint including the exact date and time of the incident when Prof. Murthy had made the offending remark/proposal to her. The version of Daisy kalita was corroborated not only by the student representatives but also Mr Peroz Jimmy Daimary, who was the supervisor of the complainant in the department. The witnesses had also corroborated the version given by Smt. Reema Kundu, Smt. Anusua Chatterjee and Smt. Supriya Ghosh.
14. In the report dated 28/05/2013, the "CCSH" had noted that from the testimony of the complainant, it was evident that the incident complained of by Ms. Daisy Kalita had taken place on 24/05/2013 where- after the initial complaint was filed by her on the very next day i.e. 25/05/2013. In the said report it has also been mentioned that although the respondent was not informed about the contents of the complaint made by Ms. Daisy Kalita, yet, he had come prepared before the Committee and gave a detailed picture of his view points armed with all kind of replies.
15. That apart, the report dated 28/05/2013 also records the admission on the part of the respondent that he had in fact made a call to Daisy Kalita to find out if she was in the bathroom. The respondent had also admitted before the "CCSH" that he had made allegations WA 195/2015 Page 17 of 30 against his colleagues Uttam Pegu, Anbarson, Joya, Rita Moni Das, Balalakhendar and others because he had seen them going in one car in his own eyes.
16. What would be pertinent to note herein that the respondent did not make any serious attempt to deny the allegations made by Daisy Kalita before the "CCSH" despite having the opportunity to do so. Save and except replying in the negative to a query made by the committee as to whether he had made any sexual advance to Ms Daisy Kalita, the respondent has not denied the facts and circumstances narrated in the complaint but had made an attempt to justify his conduct by referring to the conduct of his departmental colleagues. The respondent also could not give any satisfactory reply when confronted by the Committee about several of his offensive conduct. He had not even denied the allegation of having asked Daisy Kalita to meet him at his residence or having met Daisy in his chamber on 24/05/2013.
17. On an examination of the proceedings recorded by the "CCSH" on 28/05/2013, what is evident is that the allegation of an offer being made by the respondent to Daisy Kalita to give her higher grade in her dissertation if she met him in his residence remained uncontroverted. What would be significant to note herein that not only have the witnesses corroborated the version of the complainant but as many as 31 (thirty one) student of the department had also signed and forwarded the complaint of sexual harassment made by Daisy Kalita against Prof. Murthy.
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18. On the basis of the materials available on record the "CCSH" was of the opinion that the complaint made by Ms. Daisy Kalita was a genuine one and that the charge of sexual harassment made against the respondent stood established. As such, in the Report dated 28/05/2013, as many as 7 (seven) recommendations were made by the "CCSH" which are quoted herein below :-
"i) Ms. Daisy Kalita's case and her appeal for justice was genuine. During the 4 hour interrogation the facts that came before the committee showed the 'aggrieved' as genuinely shattered and shocked by the misbehaviour of the HOD.
ii) The complaint committee observed that students are not safe with an individual like Prof. Murthy who is obsessed with 'sex'. From interaction with the 'aggrieved' and the content of the mail sent by the PGDMMC students, also aggrieved, and interaction with the student representatives it was evident that on a regular basis the 'respondent' Prof. Murthy has made 'sexual innuendos' and 'sexual advances' and 'physical contact' with the girl students and research scholars.
iii) His manipulative nature is evident in the manner in which he intimidates and confuses all his students. This is evident how he makes the students give their suggestions for a 'good working' environment of the department. Then he sends these suggestions to the university authority requesting to constitute an 'all female' faculty 'Inquiry Committee' to investigate the problems the students are facing with some of the department faculties. At the same time he instructs the students not to say anything adverse to the 'Inquiry Committee' as the prestige and the future of the department is at stake. He also spreads the rumour that some students have made allegation of sexual harassment against some teacher of the department. So when the 'Inquiry Committee' visits the department on 13.05.2013 the WA 195/2015 Page 19 of 30 students are wary and confused and deny any such allegation was made and there is no problem in the department. From this it is evident that he not only manipulated the department students but also the university authority and made the 'Inquiry"
a farce.
iv) Prof. Murthy is in the habit of making / discussing matters in the classroom which are unbecoming of a teacher and detrimental to a healthy academic environment by telling 'fictitious' stories of other faculty's / person's 'private life'. This reflects his perverted bent of mind.
v) Prof. Murthy proves to be an habitual 'liar' as is evident from his deciphering of the coded text message EGFCXXs as 'Easy fucks' which the students said was not true. Secondly his vile allegations against his colleagues within and outside the department. When asked for evidence he could not provide any concrete proof to put before the committee.
vi) In general he has no respect for women, particularly those of North East India as is evident from Ms. Daisy's grievance letter as well as from his conduct during the inquiry.
vii) His past record indicates that he is an individual not fit to be in an academic institution.
Viii)There is a case against him. In 1995 he was dismissed from his job because of his abusive behaviour towards young children, students and women."
19. From a perusal of the pleadings contained in the writ petition, it is apparent that the respondent had not assailed the report dated 28/05/2013 submitted by the "CCSH" nor has he alleged that the said proceedings were concluded by denying proper opportunity to the respondent to defend his case. In the above context, it would be pertinent to mention herein that although one Sunil Kumar Dutta, Dean, SSH was a member of the Complaint Committee, yet, the said person had WA 195/2015 Page 20 of 30 recused himself from the proceeding of the Committee held on 28/05/2013 on account of the fact that Prof. S.K. Dutta had also made a similar nature of complaint against the respondent.
20. On examination of the Report dated 28/05/2013, we find that there was overwhelming material available before the "CCSH" so as to permit it to record a finding of guilt on the part of the respondent as regard the allegation of sexual harassment. The "CCSH" had complied with all the norms of fairness in conducting the probe. As a matter of fact, record reveals that after the report dated 28/05/2013 was submitted by the "CCSH' the respondent had submitted his resignation, which however was not accepted by the University. From the above, it can be safely assumed that even the respondent had accepted the recommendations made by the "CCSH".
21. From a perusal of the documents on record we also find that the members of "CCSH" present were all Professors of the University and are persons of high repute. There is no allegation of malafide against the individual members of the committee. It is true that the complaint filed on 25/05/2013 i.e. the very next day of the incident did not contain full particulars as regards the date and time of the incident, but the complainant had subsequently given all the details including the date and time of the incident and such version of the complainant remained consistent all through out. It must be borne in mind that having suffered harassment of sexual nature at the hand of her HoD, the complainant was in a state of shock and dismay as had also been recorded by the Inquiry Officer. Under such circumstances the complainant could not have WA 195/2015 Page 21 of 30 been expected to be in a composed state of mind so as to pen down every minute details of the entire incident on the very next day of the incident.
22. Although the learned Single Judge had taken exception of the alacrity with which the "CCSH" had submitted the report on 28/05/2013 based on complaint received on 27/05/2013 thereby doubting the bonafide of the University authority, but from record we do not find any valid ground to question the bonafide of the exercise conducted by the "CCSH". It must be remembered that the Enquiry conducted by the "CCSH" is in the nature of fact finding Inquiry. In these matters, it is desirable that the enquiry should be undertaken and concluded by the Committee without undue delay. The standard of proof is preponderance of probability and there is no need to establish the charge of sexual harassment beyond reasonable doubt as in a criminal proceeding. All that is necessary is that the Enquiry must be conducted in a fair and transparent manner and in due compliance of the principles of natural justice, after giving full opportunity to the delinquent to defend his case.
23. In the case of Vishaka v State of R ajasthan , (1997) 6SCC 241, the Supreme Court had laid down certain guidelines to be followed for protection of women from sexual harassment at work places. Following the guidelines laid down by the Supreme Court, the Central Government had amended the provisions of Central Civil Service (Conduct) Rules, 1964 by inserting Rule 3-C, which is quoted here-in- below :-
" 3-C. Prohibition of sexual harassment of working women. -WA 195/2015 Page 22 of 30
(1) No Government servant shall indulge in any act of sexual harassment of any woman at her work place. (2) Every Government servant who is in-charge of a work place shall take appropriate steps to prevent sexual harassment to any woman at such work place.
Explanation. - For the purpose of this rule, "sexual harassment"
includes such unwelcome sexually determined behaviour, whether directly or otherwise, as -
(i) physical contact and advances;
(ii) demand or request for sexual favours;
(iii) sexually coloured remarks;
(iv) showing any pornography; or
(i) any other unwelcome physical, verbal, non verbal conduct of a sexual nature. "
24. A perusal of the Rules would go to show that physical contacts and advances; demand or request of sexual favours and sexually coloured remarks would constitute sexual harassment. In the present case, the allegation against the respondent is quite clear and unambiguous and it is that Prof. Murthy had asked for sexual favour from Daisy kalita by calling her to his home for giving her "good grade" in the dissertation. It has also been alleged by Daisy kalita that in the incident that took place on 24/05/2013 in the office chamber of the respondent, he had held the complainant by her waist. The said allegations stood established in the proceeding conducted by the "CCSH". The respondent was therefore, guilty of misconduct and was liable for disciplinary action by his employer. We, therefore, do not find any cogent reasons to WA 195/2015 Page 23 of 30 disagree with the findings and recommendation of the "CCSH" made in its report dated 28/05/2013.
25. Coming to the next question raised by the respondent regarding the validity of the subsequent Enquiry, we find from the record that the Learned Single Judge had allowed the Writ Petition primarily finding fault with the manner in which the subsequent enquiry was conducted. Taking note of the grievances expressed by the respondent in the writ petition, the learned Single Judge had found that the enquiry conducted on the basis of show cause notice dated 18/06/2013 was bad in law primarily on account of 4 (four) reasons, viz, (i) the enquiry was conducted on the basis of some vague allegations and after-thought complaint which were fully embellishment, (ii) the respondent was never given an opportunity to authenticate the statements of the witnesses examined by the enquiry committee and thereby conducted the proceedings in contravention with the established procedures contained in D.G., P & T letter No. 6/66/60- Disc dated 14/04/1961 and Para 92, P & T Manual Vol-III, (iii) the decision to subject the respondent to second departmental enquiry on the same set of facts and evidence had caused serious prejudice to the respondent inasmuch as he had disclosed his defence in the first enquiry, and (iv) the Enquiry Officer had taken into account the complaint filed by the students of MCJ 4th Semester dated 25/05/2013 and 27/05/2013 as well as the complaint of PG Diploma Students (PGDMMC) although such complaint did not even specify the date and time of the alleged incident of sexual harassment in the class room. The Single Judge had also noted that the complaint made by the 4th semester students of PGDMMC was WA 195/2015 Page 24 of 30 apparently related to the academic years 2011-12 and was therefore, more than one year old.
26. By referring to the decision of the Supreme Court rendered in the case of Surat Chandra Chakraborty Vs. State of W .B, reported in (1970) 3 SCC 548 as well as the decision rendered in the case of Anil Gilurkar Vs. Bilaspur R aipur K shetriya Gram in Bank reported in (2011) 14 SCC 379, the learned Single Judge had held that since no definite charges had been framed against the respondent, hence his interest had suffered serious prejudice in the matter.
27. By relying upon the decision of the Supreme Court in the case of Vijay Shankar Pandey Vs. Union of India reported in (2014) 10 SCC 589 as well as constitution bench decision of the Supreme Court in the case of K . R . Deb Vs. CCE reported in (1971) 2 SCC 102, the learned Single Judge had further held that the appellants had committed manifest illegality in conducting the second enquiry despite having the report of the "CCSH" thereby resorting to a de-novo enquiry which was not permissible in the eye of law, more particularly, since the amended provisions of Rule 14 (2) of CCS (CCA) Rules clearly provided that the report of the Complaint Committee was to be treated as an inquiry report for taking action against the delinquent.
28. A scrutiny of the record shows that the show cause notice dated 18/06/2013 contained a statement of allegation spelling out in clear terms, the allegation levelled against respondent. The said allegation, in essence, was one and the same that was enquired into by the "CCSH" and having understood the implications thereof, the respondent had also WA 195/2015 Page 25 of 30 submitted his written statement of defence. The respondent had not taken the plea before the Inquiry Officer that he was unable to comprehend the charge brought about against him. During the course of the proceeding, the respondent was permitted to submit additional written statement on 23-08-2013. The respondent was allowed to examine and cross-examine the witnesses. As a matter of fact, full procedural safe guard was provided to the respondent during the Inquiry Proceeding.
29. Although the learned Single Judge was of the view that the complaint was vague since it did not disclose the date and time of the incident, yet, we find from the record that not only had the complainant mentioned the date and time of the incident but even the witnesses had corroborated her version. The version of the complainant Daisy Kalita had remained consistent all along and her testimony could not be impeached by the respondent during her cross-examination.
30. The respondent has taken a plea that authentic copies of the cross examination was not furnished to him as a result of which he was prevented from defending his case due to non-availability of complete evidence, but he has not been able to point out as to what evidence was withheld from him by the Inquiry Officer and in what manner.
31. The further plea of the respondent is that the Inquiry Officer had on his own called for additional witnesses even though their names were not included in original list of witnesses. The respondent has not denied that he was allowed opportunity to cross examine all the witnesses. That apart, a perusal of the Enquiry Report goes to show that the charge of WA 195/2015 Page 26 of 30 sexual harassment stood established on the basis of the evidence tendered by the listed witnesses, who had been cross-examined by the respondent. Prof. Murthy could not show as to in what manner his interest had been prejudiced on account of examination of the additional witness by the Inquiry Officer. Even if the testimonies of the additional witnesses are discarded then also the charge against the respondent would stand established based on the materials on record.
32. In the case of Vijay Shankar Pandey (Supra) , the disciplinary authority had abandoned the enquiry already undertaken and resorted to appointment of a fresh Enquiry Proceeding which is not the present case. Again, in the case of K .R.Deb (Supra) , the de-novo enquiry was ordered by the disciplinary authority since the first enquiry had exonerated the delinquent by holding the charges as not proved. The aforementioned two decisions of the Supreme Court, therefore, in our opinion have no application in the facts and circumstances of the case.
33. In a desperate attempt to convince this court that usage of slang language and taboo expressions in the class room was not only permissible but was also necessary for imparting effecting education to the students since the same was the demand of his discipline of teaching, Prof. Murthy had used a few "expressions" before us, which need not be quoted in this judgement. Having heard Mr. Murthy and the logic furnished by him, we are of the view that not to speak of a University class room, such uncouth "expressions" used by him are totally unfit for being used in a civilized society, more particularly in presence of ladies. WA 195/2015 Page 27 of 30 Using of such uncouth slangs in our view, cannot be of any purpose save and except reflecting a pervert bent of mind of the speaker.
34. It is seen from the record that the student and teachers of the MCJ department had supported the complaint of sexual harassment made against the respondent virtually calling him as a habitual offender. On a pointed query made by this Court, Prof. Murthy could not give a convincing reply as to why the lady students of the department would make such serious allegation of sexual harassment against him if he was actually an innocent person.
35. By the amendment carried out in Rule 14(2) of the CCS(CCA) Rules, a proviso had been inserted in the year 2004, which reads as under :-
"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 or 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 harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules."
36. In the case of M edha K otow al Lele (Supra) the Hon'ble Supreme Court had held that the report of the Complaint Committee on Sexual Harassment can be treated as a finding of guilt of a delinquent for the purpose of imposing penalty. It is, therefore, evident that it was WA 195/2015 Page 28 of 30 permissible for the appellant University to take appropriate action against the respondent treating report of the "CCSH" dated 28/05/2013 as the inquiry report and the subsequent enquiry proceeding by appointing Sri D.N.Saikia as an Inquiry Officer was un-necessary. However, we find that the Inquiry Officer had conducted the proceeding in a fair manner , giving full opportunity to the respondent and the findings reflected in the Report dated 11/09/2013 are also recorded on the basis of cogent evidence on record. Therefore, viewed from any angle, the impugned order of penalty dated 8/11/2013 does not suffer from any infirmity.
37. The statute No. 44 of the Statute, Ordinance and Regulations framed by the Tezpur University contains clause No. 11.6 defining the code of conduct of the teachers of the Universities which makes gross moral misconduct also misconduct under the said Rules. Section 28(4) of the second schedule of the Tezpur University Act, 1993 provides that reasonable opportunity of show cause should be provided to every employee against whom action was proposed to be taken. Section 28(4) is quoted herein below for ready reference:-
"(4) No teacher, member of the academic staff or other employee shall be removed under clause (2) or clause (3) unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."
38. As has been mentioned above, the University authority had observed all the procedural requirement before issuing the impugned order of penalty dated 8/11/2013. The enquiry report dated 28/05/2013 furnished by the "CCSH" was sufficient to impose the penalty upon the WA 195/2015 Page 29 of 30 respondent and the said proceeding has been conducted in substantive compliance of the requirement of the CCS(CCA) Rule. We, therefore, respectfully disagree with the findings and conclusions recorded by the learned Single Judge recorded in the judgement and order dated 19/06/2015 wherein it was held that the enquiry proceeding stood vitiated due to violation of the procedural norms having an invalidating effect on the order of penalty.
39. In the result, this appeal must succeed and is hereby allowed. The impugned judgement and order dated 19/06/2015 stands set aside. Consequently, the writ petition filed by the respondent would stand dismissed.
There would be no order as to costs.
JUDGE CHIEF JUSTICE
Sukhamay
WA 195/2015 Page 30 of 30