The prayer in the writ petition is for a writ of Mandamus, directing the Respondent No.1 to conduct de-nova enquiry on the charges found vide charge memo dated 16.05.2012, issued against the petitioner.
2.The case of the petitioner is that the petitioner joined on 18.10.1989, in the first respondent university, in the cadre of Senior Lecturer in the Department of Chemistry. Thereafter, he was promoted as Reader in 1993 and further promoted to the post of Professor in the year 2001. The petitioner had become Head of the Department of Chemistry on 14.10.2009. While so, the first respondent has issued a communication to the petitioner on 23.04.2012 informing him to appear before the ?Grievance Redressal Cell for the Sexual Harassment against Women?, for clarification, regarding the harassment complaints received by the Chairperson of the Cell on 26.04.2012. Accordingly, the petitioner had attended the enquiry and based on which a report was prepared by the Committee and was placed before the Syndicate for consideration and thereafter, pursuant to the Syndicate Resolution of the University, an order of suspension dated 29.04.2012, was issued by the Convenor of the Committee, by which the petitioner was placed under suspension. Thereafter, the first respondent had also issued a charge memo dated 16.05.2012, with 5 articles of charges. The petitioner has given his representation dated 22.05.2012, seeking for a copy of the vital documents relied on by the University for framing the charges. In response to the petitioner's request, it was communicated by the 1st respondent University on 06.06.2012 stating that documents in Serial Nos.1 to 4 have to be perused at the office of the first respondent and documents in Serial Nos.5 to 15 were sent along with the said communication. Thereafter, on 08.06.2012, the petitioner was permitted to peruse the documents in serial Nos.2 and 3 and the rest of the documents in Serial Nos.1 and 4 were not shown to him. Therefore, the petitioner made further representation dated 16.05.2012. The petitioner also given a request on 08.06.2012, requesting the 2nd respondent to provide copy of some more documents such as details of syndicate members, photostat copy of the applications for the post of Project Assistant for the project under Dr.K.Swarnalatha and the Photostat copy of the minutes of the selection committee for the selection of the Project Assistant. The said request was not considered. Thereafter, the petitioner made another representation dated 13.06.2012, requesting permission to peruse the left out documents. Thereafter, he was informed that he can peruse those documents on 15.06.2012 during office hours. Accordingly, the petitioner had perused those documents on 15.06.2012. Again the petitioner had requested the first respondent on 18.06.2012 to peruse further documents and also he requested 15 days time for perusal of the documents and submit his explanation. However, without giving chance for the perusal of the further documents, the first respondent has asked the petitioner to appear before the Enquiry Committee. The said enquiry notice was served on the petitioner on 19.06.2012. Hence, the petitioner submitted a representation dated 20.06.2012, to provide 10 days time to attend the enquiry and also asked for the list of witnesses. However, the Enquiry Committee commenced the examination of witnesses on 19.06.2012 and 20.06.2012 before receiving the explanation of the petitioner. Thereafter, vide communication dated 22.06.2012, the second respondent intimated that the petitioner can attend the enquiry on 26.06.2012. Thereafter, the petitioner had submitted a detailed explanation, to the charge memorandum, on 25.06.2012. He had requested the second respondent to hold the enquiry outside the University Campus and it was rejected by saying that it would be held on 09.07.2012 within the University Campus. Again on 01.08.2012 the petitioner had sent another representation and again on 06.09.2012 the petitioner had given yet another representation praying for reconstitution of Enquiry Committee by including a male member and for a de-nova enquiry on the charge-memo dated 16.05.2012. Since the Enquiry Committee, according to the petitioner, constituted by the respondent University in consisting only female members and there is no male member, the said constitution itself is against the law laid down by the Hon'ble Apex Court in Vishaka & others V. State of Rajasthan & others reported in 1997 (7) SC 323 and therefore the Committee has to be reconstituted by including a male member. Since the request has not been accepted and the Enquiry Committee has proceeded with the enquiry and in fact seems to have completed the same, the petitioner has approached this Court for de-nova enquiry as prayed herein.
3.Heard both sides.
4.The learned counsel appearing for the petitioner at the outset would state that, on two major grounds, the petitioner seeks for the present relief of conducting de-nota enquiry against the petitioner pursuant to the charges framed against him, dated 16.05.2012. According to him, the very constitution of the present Enquiry Committee is against the law laid down in Vishaka case (cited supra) as it is specifically stated therein that the Enquiry Committee should be headed by a woman and not less than half of its members are women. The respondent University has constituted the Enquiry Committee headed by a woman and other two members are also women and therefore, there is no single male member is included. Hence, it is against the dictum laid down by the Hon'ble Apex Court in Vishaka case (cited supra). Therefore, the entire proceedings conducted by the Enquiry Committee is vitiated and on that ground alone the interference of this Court is required and de-nova enquiry is to be ordered.
5.The learned counsel for the petitioner would submit also that when specific request having been made on behalf of the petitioner that further important documents, which are left out, has to be perused and having perused the same the petitioner required further time of 15 days to reply, without giving an opportunity for perusal of documents and without giving further time to give reply to the charge memo, the enquiry proceedings was proceeded as if the petitioner has perused all the documents and replied to the charge memo on 19.06.2012 itself and on that date, even without the presence of the petitioner, the evidence were recorded by the Enquiry Committee from the complainants and only thereafter on 20.06.2012, the petitioner had attended the enquiry and still he had requested to give further time to reply and the same had not been given. In fact further enquiry was fixed to be held on 26.06.2012. Therefore, having no other go, the petitioner has given his reply on 25.06.2012. Even before the explanation of the petitioner reached the Enquiry Committee, the Enquiry Committee commenced the enquiry and without taking note of the contents made in the explanation, the Enquiry Committee proceeded with the enquiry and therefore, the petitioner repeatedly requested the Enquiry Committee to start the enquiry afresh from the initial stage as the examination of witnesses should be only in the presence of delinquent i.e., the petitioner and behind his back any evidence is recorded, the copies of the evidence has to be given to the petitioner, which is also not given. When these factors were brought to the notice of the Enquiry Committee, it has not considered the same, and in fact they have proceeded with the enquiry without following the procedure to be followed before proceeding with the enquiry and also not given due opportunity to the delinquent even at the time of recording the evidence, presumably against the petitioner, from the alleged complainants and therefore, the entire enquiry conducted by the Committee is vitiated and therefore there is every justification on the part of the petitioner to seek for de-nova enquiry.
6.The learned counsel appearing for the petitioner also would contend that if de-nova enquiry is conducted no prejudice would be caused to the respondent or the alleged complainants. The learned counsel appearing for the petitioner would further submit that in the meanwhile the petitioner has attained the age of superannuation and retired from service on 09.02.2015 and therefore, once the petitioner had attained the age of superannuation and retired, the maximum punishment of removal from service cannot be inflicted on the petitioner. In this regard, the learned counsel appearing for the petitioner would rely upon the decision of the Hon'ble Apex Court reported in (2013) 6 SCC 515 in the matter of Anant R. Kulkarni v. Y.P.Education Society and others. Paragraph No.24 of the said judgment relied on by the learned counsel appearing for the petitioner reads as follows:
?24.Thus, it is evident from the above, that the relevant rules governing the service conditions of an employee are the determining factors as to whether and in what manner the domestic enquiry can be held against an employee who stood retired after reaching the age of superannuation. Generally, if the enquiry has been initiated while the delinquent employee was in service, it would continue even after his retirement, but nature of punishment would change. The punishment of dismissal/removal from service would not be imposed.?
The learned counsel appearing for the petitioner also would rely upon another judgment reported in (2007) 1 SCC 663 in the matter of Jaswant Singh Gill v. Bharat Coking Coal Ltd., for the very same proposition. Therefore, the learned counsel for the petitioner would contend that the prayer sought for herein for de-nova enquiry may be allowed in the interest of justice.
7.Per contra, the learned Standing Counsel appearing for the 1st respondent University would submit that complaints were received from 22 girl students of the Department of Chemistry as well as one of the faculty member i.e., the third respondent herein against the petitioner for sexual harassment. Pursuant to such complaints, since an enquiry was conducted by constituting a Committee, the petitioner was placed under suspension with effect from 27.04.2012. Pursuant to the orders of the Convenor of the Committee dated 16.06.2012, the Enquiry Committee was constituted with the following members:
1.Dr.R.Kala, Associate Professor, Manonmaniam Sundaranar University, Tirunelveli. .. Convenor
2.The Regional Joint Director of Collegiate Education, Tirunelveli Region. .. Member
3.Dr.S.Pachainayagi, Principal, A.P.C. Mahalaxmi College, Thoothukudi. .. Member A charge memo dated 16.05.2012, was issued to the petitioner. Since he requested for copy of documents, 11 out of 15 documents had been provided to him. With regard to the remaining four documents he was permitted to peruse the same. In order to protect the dignity of the girl students and woman staff member, copy of the statements given by the complainants were not given to the petitioner. However, he was permitted to peruse those documents and after perusing the same, he was directed to furnish the reply to the charge memo. Thereafter, the Committee had decided to conduct enquiry on 19.06.2012 and 20.06.2012 at the University Campus. Accordingly, the petitioner and other witnesses were informed. Since the Regional Joint Director being one of the member of the Committee could not participate in the enquiry due to his unavoidable administrative reasons, he has deputed her nominee and she joined along with other Committee Members and accordingly, the enquiry was conducted. During enquiry, the petitioner had produced four defence witnesses and also he had chosen to cross-examine seven witnesses, which includes the girl students, who gave complaints against the petitioner. Such particulars were given to the petitioner. The enquiry was conducted stage by stage on various dates i.e., 19.06.2012, 20.06.2012, 26.06.2012, 09.07.2012, 31.07.2012 and 22.08.2012. The progress of the enquiry has been systematically made after giving all reasonable opportunities to the petitioner, including permitting him to produce his witnesses and also permitted to cross-examine the complainant's witnesses as chosen by the petitioner. After conducting very detailed enquiry, which in fact not necessary to deal with the case of this nature, ultimately, a report has been given by the Enquiry Committee and according to the conclusion reached by the Committee the charges 1 to 5 alleged against the delinquent Professor, i.e., against the petitioner herein, stand proved. Therefore, the Committee concluded its finding on 29.08.2012. After receipt of this report and before the same is supplied to the petitioner, seeking his further explanation, the petitioner has approached this Court by filling the present Writ Petition on 05.12.2012, where this Court by interim order dated 05.12.2012, injuncted the respondents herein from proceeding further. The enquiry was concluded on 29.08.2012 itself and a report to that effect has been filed by the Enquiry Committee to the authorities of the respondent University and since by that time the interim order has been passed as stated supra, no further proceedings has been made by the respondents.
8.The learned Standing Counsel appearing for the 1st respondent would submit that in so far as the first ground raised by the petitioner is concerned the import of the Vishaka case (cited supra) is not the one as sought to the interpreted by the petitioner. In this regard the learned counsel appearing for the respondent would rely upon the relevant portion of the said decision (cited supra), which reads thus:
?7. Complaints Committee:
The complainant mechanism, referred to in (6) above, should be adequate to provide where necessary, a Complaints Committee, a special counsellor of other support service including the maintenance of confidentiality.
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 must make an annual report of the Government department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.?
From the reading of the aforesaid paragraph of the said judgment, it becomes clear that the Complaints Committee must be headed by a woman and also not less than half of the members should be women. Nowhere in the said order it is mandated that the Committee should not consists of only women members. In other words, the minimum requirement of women is not less than 50%. It should be headed by the woman and it does not mean that if the Committee headed by women consisting of women members alone, it is against the dictum of the said decision of the Hon'le Apex Court. Therefore, the said contention of the petitioner that the very Constitution of the Committee headed by a women and two other members nominated to the committee are also women members and therefore, it is violation of law, laid down in Vishaka case (cited supra), is totally without basis and therefore, the same cannot be countenanced.
9.The learned counsel for the first respondent also submitted that the enquiry was conducted in atleast five sittings. Except on 19.06.2012, in all the hearing dates the delinquent/petitioner appeared and every time progress has been shown systematically by giving reasonable opportunity to the petitioner and therefore, there cannot be any hue and cry on the part of the petitioner that enquiry was not conducted in proper manner and no opportunity was given to the petitioner on those days, which is in violation of the principles of natural justice.
10.The learned counsel for the first respondent, in fact, has made an alternative submission that cases of this nature need not be heard by Departmental Enquiry as in the case of other disciplinary proceedings. A mere summary proceedings is enough to safely arrive at a conclusion as to whether a sexual harassment has been taken place, as alleged by the complainants, and mere circumstances to reach a conclusion against erring employee/official is enough and based on which punishment can be inflicted on the erring person. In order to substantiate his contention, the learned counsel appearing for the petitioner would rely upon the judgment of the Hon'ble Apex Court reported in 1973 II LLJ 111 in the matter of Hira Nath Misra v. Principal, Rajendra Medical College, Ranchi and another. The learned counsel would heavily rely upon paragraph 8, 11 and 12 of the said judgment and the relevant portions of the said paragraphs are reproduced herein:
?8.The High Court was plainly right in holding that principles of natural justice are not inflexible and may differ in different circumstances. This Court has pointed out in Union of India v. P.K.Roy, (1968) 2 S.C.R. 186 at page 202, that the doctrine of natural justice cannot be imprisoned within the strait jacket of a rigid formula and its application depends upon several factors. In the present case the complaint made to the principal related to an extremely serious matter as it involved not merely internal discipline but the safety of the girl students living in the hostel under the guardianship of the college authorities. These authorities were in loco parentis to all the students, male and female, who were living in the hostels and the responsibility towards the young girl students was greater because their guardians had entrusted them to their care by putting them in the hostels attached to the college. The authorities could not possibly dismiss the matter as of small consequence because if they did, they would have encouraged the male student rowdies to increase their questionable activities which should not only have brought a bad name to the college but would have compelled the parents of the girl students to withdraw them from the hostel and, perhaps, even stop their further education. The principal was, therefore, under an obligation to make a suitable enquiry and punish the miscreants.
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11. ... The Committee on a careful consideration of the material before them came to the conclusion that the three appellants and Upendra had taken part in the night raid on the girls hostel. The report was confidentially sent to the principal. The very reasons for which the girls were not examined in the presence of the appellants prevailed on the authorities not to give a copy of the report to them. It would have been unwise to do so. Taking all the circumstances into account it is not possible to say that rules of natural justice had not been followed.
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12.Rules of natural justice cannot remain the same applying to all conditions. We know of statues in India like the Goonda Acts which permit evidence being collect behind the back of the goonda and the goonda being merely asked to represent against the main charges arising out of the evidence collected. Care is taken to see that the witnesses who gave statements would not be identified. In such cases there is no question of the witnesses being called and the goonda being given an opportunity to cross- examine the witnesses. The reason is obvious. No witness will come forward to give evidence in the presence of the goonda. However, unsavoury the procedure may appear to a judicial mind, these are facts of life which are to be faced. The girls who were molested that night would not have come forward to give evidence in any regular enquiry and if a strict enquiry like the one conducted in a Court of law were to be imposed in such matters, the girls would have had to go under the constant fear of molestation by the male students who were capable of such indecencies. Under the circumstances the course followed by the Principal was a wise one. The committee whose integrity could not be impeached, collected and sifted the evidence given by the girls. Thereafter the students definitely named by the girls were informed about the complaint against them and the charge. They were given an opportunity to state their case. We do not think that the facts and circumstances of this case require anything more to be done.?
11.In order to further substantiate the said contention, the learned Standing Counsel for the first respondent would also rely upon the Division Bench judgment of this Court reported in (2008) 5 MLJ 261 in the matter of Chairman, Navodaya Vidhalaya Samiti v. Dr.T.Murugesan and others, wherein the ratio decidendi is that when the teacher who is a member of the noble teaching profession is alleged with immoral behaviours with one of his girl student, the question arose for consideration was whether he is entitled to a full-fledged enquiry as demanded by him or a summary enquiry is sufficient, and it was answered that even a smell is enough to come to a conclusion. In the said Division Bench judgment this Court passed the order after having taken note of the import of Vishaka case (cited supra) and subsequent clarificatory order by the Hon'ble Apex Court in this regard, where it has been specially stated that the Complaints Committee as envisaged by the Supreme Court in its judgment Vishaka case (cited supra) shall be deemed to be an Enquiry authority for the purposes of Central Civil Services (Conduct) Rules 1964. Thereafter, the disciplinary authority will act on the report in accordance with the Rules. Therefore, even the very enquiry conducted by the Complaints Committee and its report itself can be treated as valid enquiry and punishment can be inflicted on the erring person. In view of the said decision of the Hon'ble Apex Court as well as this Court, the learned Standing Counsel for the first respondent would submit that mere summary proceedings is enough to safely conclude against the erring official when specific allegation is made against him on sexual harassment by women members at working place and educational institution. Here, in this case more than summary enquiry a detailed and fair enquiry has been conducted and therefore, there cannot be any further enquiry or de-nova enquiry as has been sought for by him in the present writ petition and therefore, the learned Standing Counsel appearing for the first respondent submitted that the writ petition is liable to rejected.
12.This Court has considered the rival submissions of the learned counsel appearing for the respective parties.
13.As has been rightly contended by the learned Standing Counsel for the first respondent, the Constitution of Committee pursuant to the direction by the Hon'ble Apex Court in Vishaka case (supra) only requires that it must be headed by a women and atleast not less than 50% committee members be women and therefore, there is no ground in saying that the Committee now constituted by the first respondent to conduct enquiry against the petitioner is headed by a woman and other two members are also women and therefore, it is actually more than 50% as required in Vishaka case (supra), is totally against the spirit of the said judgment. The minimum requirement has been spelt, but there is no maximum limit for the participation of the women members in the said judgment. Therefore, the first ground is liable to be rejected and accordingly it is rejected.
14.Insofar as the other ground raised by the learned counsel appearing for the petitioner that no opportunity was given to him in violation of the principles of natural justice, particularly within the meaning that the enquiry has been concluded in a hurry burry manner and examination of witnesses were taken place in his absence and even before the explanation submitted by the petitioner reached the enquiry Committee they proceeded with the enquiry and for all the reasons the entire enquiry is vitiated and the same has to be redone as de-nova enquiry is concerned, this Court has directed the first respondent to produce the enquiry report and pursuant to the said direction the learned Standing Counsel for the respondent has produced the enquiry report, submitted by the Enquiry Committee dated 29.08.2012. On a perusal of the said report, which is in detail and exhaustive wherein it is found that complaints have been received from 22 girl students of the Department of Chemistry where the petitioner is working as a Professor and also a women faculty member, who is the third respondent herein. The complaint against the petitioner by the girl students as well as the third respondent is sexual harassment. The petitioner has been furnished with 11 out of 15 documents relied by the Committee. Even the remaining documents were permitted to be perused by the petitioner. A date was fixed for enquiry on 19.06.2012. Since the petitioner has not turned out, again all the persons including the petitioner were directed to come on next date i.e. 20.06.2012. The petitioner did not turn up but through e-mail dated 20.06.2012 he sought for further time. Since already enough time had been given to the petitioner, the enquiry committee had fixed further enquiry as 26.06.2012 and on that date the petitioner was directed to appear. Thereafter, on 25.06.2012, the petitioner had submitted his explanation. Therefore, further enquiry was continued from 26.06.2012. The petitioner did participate in the enquiry. In fact the petitioner on the next day of enquiry i.e., on 09.07.2012 had produced four defence witnesses, out of the four, three were Associate Professors and one was a Professor. After having completed the examination of the defence witnesses the petitioner has requested for cross-examination of the complainant side witnesses and out of the total number of witnesses available, the petitioner had chosen seven persons to be cross-examined and by letter dated 27.07.2012 of the registrar of the first respondent, all the witnesses chosen and named, were called for cross-examination by the delinquent i.e., the petitioner on 31.07.2012. On 31.07.2012 cross-examination has been conducted by the petitioner. Thereafter, further enquiry was conducted on 22.08.2012. After having completed these enquiries in all these days, the Enquiry Committee proceeded to examine and considered the participation of the complainants as well as the witnesses and the explanation and defence evidence given on behalf of the petitioner. All the five charges have been dealt with separately one by one and against each of the charge the explanation given by the petitioner has been considered and finding to each of the explanation of the petitioner, has been given by the Committee. Ultimately the committee in its conclusion has concluded that all the five charges framed against the petitioner have been proved. The said conclusion arrived by the Committee has been recorded in the enquiry report and the same was submitted to the respondent University.
15.Thereafter, based on the Committee's Report, before further proceedings is taken by the respondent university seeking further explanation from the petitioner as stated above, the petitioner approached this Court and in view of the interim order passed by this Court, the matter stands as it is and no progress has been made subsequent to filing of the enquiry report. If we look into the veracity of the complainants' depositions, chronological events as well as nature of each of the witnesses, who are none other than the girl students under the petitioner, in the Department of Chemistry, would go to show that the enquiry has been conducted by the Committee in a more appropriate manner. Even though the said judgment cited by the respondent counsel would clearly envisage a principle that when complaints are made by woman folk in the working spot administrative or educational institution, mere summary procedure is enough to have a safe conclusion against the guilt of the erring person, in the present case a full-fledged enquiry has been conducted and enough opportunity has been given to the petitioner at each of the stage.
16.Even then if the petitioner had any grievance in their conducting the enquiry itself, at the stage he found indeference, which is detrimental to the defence of the petitioner, the same could have been agitated by him. The chronological events as has been recorded in the enquiry report shows that at each and every stage the petitioner has tried to thwart the enquiry proceedings and whatever requests he has made reasonably has been accepted. For instance 11 out of 14 documents were given to him. Remaining four documents, he was permitted to peruse. He was permitted to place defence witnesses. He was permitted to cross-examine the complainants and for each of the charges, explanation was called for and such explanation was specially dealt with and considered after completing the procedural formalities. Therefore, this Court finds absolutely no force in the said contention raised by the petitioner that the enquiry has not been conducted in the manner known to law and therefore it requires de-nova enquiry. Accordingly, this Court is of the considered view that the said request as well as the contention of the petitioner through his counsel are liable to be rejected and accordingly it is rejected.
17.In view of the aforesaid discussions and factual matrix, the petitioner has not made out a case for interference by this Court and he has not made out a case to grant the prayer, he has sought for. Hence, the prayer he sought for is rejected and accordingly the Writ Petition is liable to be dismissed.
18.Resultantly, the Writ Petition is dismissed. However, since the enquiry was completed and the enquiry has also been completed and at that stage, since the disciplinary proceedings of the first respondent University has been injuncted by this Court, now, it is hereby directed that the respondent University/Disciplinary authority shall give a copy of the enquiry report to the petitioner, within a period of two weeks from the date of receipt of a copy of this order and thereafter, the petitioner's explanation can be sought for within a period of two weeks therefrom and on receipt of such explanation from the petitioner, it is open to the disciplinary authority to consider the explanation and decide the same regarding the further course of action to be taken.
No costs. Interim injunction granted in M.P.(MD) No.1 of 2012 is vacated and the said petition is also dismissed. No costs..