IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ WRIT PETITION NOs. 38269-270 OF 2014 BETWEEN 1. NATIONAL INSTITUTE OF MENTAL HEALTH & NEURO SCIENCES, HOSUR ROAD, BENGALURU – 560 029, REPRESENTED BY ITS DIRECTOR.
2. GOVERNING BODY, NATIONAL INSTITUTE OF MENTAL HEALTH & NEURO SCIENCES, HOSUR ROAD, BENGALURU – 560 029, REPRESENTED BY ITS DIRECTOR.
..PETITIONERS (BY Sri.P.S.RAJAGOPAL, SENIOR COUNSEL FOR Sri.PUTTEGOWDA.K, ADV.) AND:
Dr. JOHN JOHNSON AGED ABOUT 61 YEARS, NO.58, I FLOOR, SAPTAGIRI NILAYA, 10TH MAIN ROAD, 14TH CROSS ROAD, WILSON GARDEN, BENGALURU – 560 030.
..RESPONDENT (BY Sri.K.B.MURALIDHAR, ADV. FOR C/R) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 1.7.2014 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH, BENGALURU IN TRANSFERRED APPLICATION NO. 162 OF 2012 AND REVIEW APPLICATION NO.9 OF 2014 VIDE ANNEXURE-L, AS THE SAID ORDER IS CONTRARY TO SETTLED LAW, ARBITRARY, OPPRESSIVE, WITHOUT JURISDICTION, CONTRARY TO PRINCIPLES OF NATURAL JUSTICE, CONTRARY TO THE CONSTITUTIONAL ETHOS AND VALUES.
THESE WRIT PETITIONS COMING ON FOR FINAL HEARING, THIS DAY, RAVI MALIMATH. J., PASSED THE FOLLOWING:
O R D E R Aggrieved by the order passed by the Tribunal dated 01.07.2014 passed on Transfer Application No.162/2012 allowing the application, the respondents No.1 and 2 therein have filed this petition.
2. The case of the petitioners is that seven girl students of the first year M.Phil., course complained to the Director of the petitioner-Institute that the respondent has been subjecting them to derogatory remarks, misbehavior, sexual remarks, etc. Based on the same, the petitioner issued a show cause notice to him. In the interregnum, one more complaint was received by them from six girl students. The respondent submitted his reply admitting the incident, but justifying his action saying that he admonished the students, etc. The matter was referred to the Complaints’ Committee. The Complaints’ Committee after conducting an enquiry as per law held that the charges are true. A second show cause notice was issued. In pursuance to the same, the Institute decided to hold an enquiry as contemplated by CCS (CCA) Rules, 1965. Articles of Charges were issued to him. He submitted his statement. On considering the evidence and the material on record, a report was submitted holding that the charges have been proved. A second show cause notice was issued. Respondent filed his reply.
3. On considering the same, he was imposed with the penalty of removal from service while treating the period of suspension as not spent on duty. Aggrieved by the same, an appeal was preferred by him, which was rejected. Thereafter, he filed W.P.No.13707 of 2008 questioning the said order. Subsequently, the writ petition was transferred to the Central Administrative Tribunal for consideration. During the course of hearing of the said Application, certain observations were made by the Tribunal. In order to set-aside those observations, a Review Application was filed. The review was not taken up for consideration. However, the Application was taken up for consideration along with the main matter and by the impugned order, the same was rejected. Consequently, the review application was also dismissed. Questioning the same, the present petitions are filed.
4. Sri.P.S.Rajagopal, the learned Senior counsel appearing for the petitioners’ counsel submits that the impugned order is bad in law and liable to be set-aside. That the tribunal has not considered any of the pleas that were submitted before it. Grave irreparable injury has been caused by the order of the Tribunal. That four cases have been taken up for consideration by the Tribunal without the consent of the parties. That the Tribunal has stated in its order that it has consulted various persons before passing the order. The petitioner-Institute was not aware of any of these matters. That even though the four cases were heard by four different Benches, a common order appears to have been passed by the Tribunal. There is no consideration on the merits of the case by the Tribunal in an appropriate manner. Therefore, notwithstanding the merits of the petitions, the manner and the procedure adopted by the Tribunal leaves much to be desired. The pleas of the petitioner have not been considered in a manner known to law. Hence, he pleads that the petitions be allowed, by setting aside the impugned order.
5. On the other hand, learned counsel for the respondent disputes the same.
6. Heard learned counsels.
7. The impugned order starts with a poem by Theodore Dreiser. We are not concerned with it, nor should the Tribunal be. While hearing the matter, the Tribunal holds that there are four cases involving sexual harassment. Even though each one of the cases have been heard by different Benches, they are disposed off together by a common order. We fail to understand as to how the Tribunal could pass such an order on four different cases in one single matter. The cause title would indicate that the matter refers to only one petitioner with one case and does not indicate reference to the other four cases and as to whether the said order stands applicable to the other cases or not.
8. In deciding the case, various observations and opinions have been made by the Tribunal, which has nothing to do on the case on hand. The Tribunal is expected to consider the contentions, record its findings and then come to a conclusion on the same. It has not done so.
9. Learned counsel for the petitioner-Institution submits that there are certain factual errors which have been stated by the Tribunal. With reference to paragraph 13 of the order, the Tribunal has stated that both sides agree that the applicant had directed the complainant to wear her dupatta properly. It is vehemently submitted herein, that no such concession was made before the Tribunal. Therefore, what has been stated therein is incorrect. Nextly, it is stated from paragraph 14 onwards that the Tribunal has got into consultation with eminent people, some of whom have no objection to being quoted and some who do not want to be quoted. Accordingly, they met Smt.Pramila Nesargi, Senior Advocate and former Chairperson of the Womens’ Commission and obtained her views. They also sought the opinion of Smt.Manjula, an experienced journalist and sought her opinion too. They have also stated that there are various discussions with several people who wanted to remain anonymous. That they are people at a high level in the judiciary and legislature. Many of them are women. We are shocked as to how the Bench could go and meet people who are not concerned with it and record their opinion and make it a part of the Judgment. It is unacceptable. A Judge is expected to hear the matter and thereafter record his reasons to accept or to reject the contentions. He is not expected to go out of the court hall, consult people, obtain their opinion and thereafter write the Judgment. This ground itself is sufficient to set-aside the impugned order.
10. The Bench has gone further at paragraph 14 of its order regarding “unseen issues”. When the seen issues are not even considered by the Tribunal, the Tribunal leaps forward and tries to decide issues which are unseen. It is unacceptable.
11. A reading of the order would indicate that virtually no justice is delivered through the order. It would rather look like a thesis on the subject and not a Judgment. There is just a veiled reference to the facts of the case of the petitioner-Institute and a conclusion that the Tribunal arrives at in paragraph 58 and 63 of the order. We do not think that it is a right assessment of the case or an appropriate conclusion arrived at by the Tribunal. We find that each of the explanations and reasons given by the Tribunal are more averse than what is written in the previous pages. In paragraph 68 of the order, the Tribunal comes to the conclusion that Sections 4 and 7 of the Sexual Harassment Act No.14/2013 is unconstitutional, so also Section114(a) of the Amendment Act of the Evidence Act and holds that these provisions are unconstitutional and therefore, leaves it to the Government to look into it afresh. It is unacceptable.
12. It is further to be seen that based on certain remarks made by the court in its order dated 25.11.2013, Review Application was filed in R.A. No.9/2014. Rather than considering it, the same was being adjourned from time to time and the Review Application has been dismissed along with this application. This too, we find an infraction of the well established procedures and hence, calls for interference.
13. Keeping these observations of the Tribunal in mind and the manner and the methodology adopted by it in writing the Judgment, we have no hesitation to hold that the impugned order is unsustainable. A grave miscarriage of justice is caused by this order. Rather than the Tribunal answering the plea of the parties, it has ventured into issues which are not even contested before it. It has written an order, which cannot be considered as a judicial order in any circumstances. Reference is being made to various material, which are not germane to the case. Discussions with people outside the court are impermissible. Therefore, we find it inevitable to set-aside the order.
14. We are appalled by the manner in which the Tribunal has written its Judgment. Even the basic procedural principles have not been followed. Unnecessarily, irrelevant aspects are referred to by the Tribunal.
15. Keeping in mind the manner in which the order has been written, we are also of the view that no purpose would be served if the matter is remanded to the same Bench which passed the impugned order. Justice could be ensured if the matter is considered by a Bench other than the Bench which passed the impugned order. Hence, for these reasons, it would not be necessary to go into the merits of the claims as set up by each one of the parties for the first time by this Court.
For the aforesaid reasons, the petitions are allowed. The order dated 01.07.2014 passed by the Central Administrative Tribunal on Transfer Application No.162/2012 and Review Application No.9/2014 are quashed. The matter is remanded to the Tribunal for a consideration of the matter afresh, in accordance with law.
The matter shall be heard by any other Bench, other than the Bench that passed the impugned orders herein.
Sd/- Sd/-
JUDGE JUDGE ln.