IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI WRIT PETITION No.56994/2018 (S – DE) BETWEEN:
Professor Giridhar Madras s/o Mr V Mohan Aged about 51 years r/a No.516, V Block Skyline City, Nagarbhavi Bengaluru – 560 012. .. Petitioner (By Sri Aditya Sondhi, Sr.Counsel for Sri Karan Joseph, Advocate) AND:
1. The Indian Institute of Science CV Raman Road Bengaluru – 560 012 Represented by its Chairman.
2. TheInternal Committee against Sexual Harassment The Indian Institute of Science C V Raman Road Bengaluru – 560 012 Represented by its Chairperson.
3. Ms.NJ Father’s name not known to the petitioner Aged about 30 years R/a IISc Hostel CV Raman Road Bengaluru-560 012. .. Respondents (By Sri S S Ramdas, Sr.Counsel for R1, Sri K Anandarama, Advocate for R2, Sri Abhilash Raju, Advocate for R3) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 17.10.2018 at Annexure-R issued by respondent No.1, quash the impugned inquiry report dated 28.2.2018 at Annexure-N issued by respondent No.2, quash the impugned findings report dated 8.2.2018 at Annexure-L issued by respondent No.2 and direct respondent No.1 to take action against its Director for violation of Section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
This writ petition having been heard and reserved on 17.7.2019 and coming on for pronouncement of judgment this day, P.B.BAJANTHRI J., made the following:
ORDER In the instant writ petition, the petitioner has prayed the following reliefs:
A. Issue a writ or certiorari or any other appropriate writ, order or direction quashing the impugned order dated 17.10.2018 at Annexure-R issued by respondent No.1;
B. Issue a writ of certiorari or any other appropriate writ, order of direction quashing the impugned inquiry report dated 28.02.2018 at Annexure-N issued by respondent No.2;
C. Issue a writ of certiorari or any other appropriate writ, order of direction quashing the impugned findings report dated 08.02.2018 at Annexure-L issued by the respondent No.2;
D. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent No.1 to take action against its Director for violation of Section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013;
E. Issue any other such appropriate writ, order or directions as this Hon’ble Court deems fit including the grant of exemplary costs in the interest of justice and equity.
2. (a) The 1st respondent – The Indian Institute of Science (for short the `IISc’) constituted under the scheme called `scheme’ for the administration and management of the properties and funds of the Indian Institute of Science, Bengaluru’, which is in vogue with effect from 22.5.1967. Paragraph-2 relates to definition (m) “regulations” means the regulations framed pursuant to Clause 21 of the Scheme and (n) “Byelaws” means the byelaws framed pursuant to Clause 22 of the Scheme. Paragraph-4 relates to authorities. Relevant authorities for the present case are (c) Council and (i) such other authorities as may be declared by the regulations to be the authorities of the institute.
(b) Schedule 1 consists of Regulations framed pursuant to Clause 21 of the Scheme. Regulation No.1 deals with definitions. Relevant definitions for the present case are:
(a) “Scheme” means the scheme for the administrative and management of properties and funds of the Institute;
(b) “Byelaws” means byelaws framed by the Council pursuant to Clause 22 of the Scheme;
(e) “Authorities” means authorities of the Institute defined in Clause 4 of the Scheme;
(g) “Council” means the council of the Institute under Clause 9.1 of the Scheme;
(c) Byelaws framed pursuant to Clause 22 of the Scheme. Byelaw No.1 deals with definitions. Clause 3 relates to Council. Clause 11 relates to classification of members of the staff like Group A, B and C. Clause 12 relates to appointments. Clause 12.2 deals with the category of post and quorum amongst other posts, Professor- Quorum – 4 members (including atleast one external expert). Clause 21 relates to Conduct Rules and Clause 21.1 relates to The Central Civil Services (Conduct) Rules, 1964 as amended from time to time shall apply mutatis mutandis to both the Teaching and non-Teaching Staff of the Institute. The Disciplinary Authority, Appellate Authority and Reviewing Authority have been identified in the form of tabular column. Government or Union – xxxx (1) Council – For major penalties in respect of Teaching and Group `A’ non-Teaching Staff appointed by the Council. However, charge sheet may be issued by the Director under his/her own signature, conduct enquiry himself/herself or appoint Inquiring Authority and forward the report of the Inquiring Authority to the Council for decision on penalty.
(d) IISc have adopted the Central Civil Service (Conduct) Rules, 1964 (for short Rules, 1964) and Central Civil Service Classification (Control and Appeal) Rules, 1965 (for short Rules, 1965).
(e) The other statutory provisions which are relevant are as follows:-
(i) The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short referred as Act, 2013).
(ii) The Sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Rules, 2013 (for short referred as Rules, 2013).
(iii) Indian Institute of Science Rules for Internal Committee, 2017 (for short referred as Rules, 2017).
3. Petitioner was appointed as Assistant Professor at IISc and thereafter he has earned promotion to the post of Professor of Chemical Engineering at IISc. Respondent No.3 was a student and petitioner was a Guide to respondent No.3. Respondent No.3 had certain grouse against the petitioner relating to alleged sexual harassment while associated with the petitioner in the profession. Therefore, she had given oral complaint on 10.11.2016. On 12.11.2016 complaint was recorded in writing by the SHCC. During the period from 24.11.2016 to 12.12.2016 SHCC proceeded to hold a preliminary investigation. Thereafter on 7.12.2016 notice was issued to the petitioner while not revealing the identity of respondent No.3. Petitioner submitted his explanation/reply to the notice issued by SHCC on 19.12.2016. In this backdrop, on 23.12.2016, written complaint was filed before the SHCC by respondent No.3. SHCC met with petitioner and orally requested him to provide another response. Even at this stage, complainant identity was not made known to the petitioner on 11.1.2017. Petitioner had submitted his explanation pursuant to the aforesaid meeting with SHCC on 13.1.2017. At this juncture, complainant requested the Committee not to proceed further with the enquiry on 20.1.2017. When things stood thus, complainant – respondent No.3 filed a complaint with SHCC stating that she was being ignored by the petitioner and not meeting for work related matters. For the first time, petitioner was made known identity of the complainant – respondent No.3 after nearly about 140 days on receipt of first complaint dated 12.11.2016/ subsequent complaint dated: 23.12.2016 was made known on 20.4.2017. There was certain defect in constituting SHCC and it was reconstituted as ICASH and inquiry was proceeded. The Committee proceeded to hold an inquiry and submitted inquiry report while recommending to take action against petitioner on 28.2.2018. The ICASH recorded testimonies of 32 witnesses and documents. A communication was made to the petitioner along with inquiry report seeking explanation of the petitioner on 02.05.2018 and 14.09.2018 respectively. Petitioner requested for voluntary retirement. In this backdrop, petitioner was retired compulsorily as a measure of penalty while extending 75% of admissible pension on 17.10.2018.
4. Learned counsel for the petitioner submitted that in terms of Byelaw Nos.21 and 22 which stipulate application of Rules 1964 and 1965, wherein the Disciplinary Authority in respect of the petitioner – Group `A’ Officer is Council, IISc and chargesheet could be issued by the Director, IISc.
a) xxxxxx b) In terms of OM No.11013/2/14 Estt (A.III) “5.(iii) Committee will as far as practicable follow the procedures prescribed in CCS (CCA) Rules, 1965 for conduct of the inquiry.”
“5.(iv) If any complaint is received directly by the Committee, the same shall be referred to the appropriate disciplinary authority and the Committee shall enquire into the complaint on the complaint being referred to it by the disciplinary authority.”
c) OM No.11013/7/2016 Estt (A.III):
“2. As far as practicable the inquiry in such cases should be completed within 1 month and in no case should it take more than 90 days as per the limit prescribed under the Act”
d) In terms of Rule 7.2 of Rules for Internal Committee, IISc also states that complaint is to be communicated within a period of 7 days and the same is violated in the present case.
Under OM dated 22.12.2016 Inquiry Report recommending action against the petitioner was beyond the mandatory 90 days period prescribed by the Act, 2013, which provides for such action and it is violated.
5. Committee and disciplinary authority have not complied the aforesaid issue.
6. Audio clip containing conversation held between the complainant and witness No.1 on 30.11.2016 was submitted on 08.10.2017 and no other documents were presented in the inquiry. Further, the first and second statements of witness No.1 are contradictory to each other. The complainant – respondent No.3 has not produced any material evidence against the petitioner like phone records or transcript of whatsapp messages in order to corroborate her allegations against the petitioner.
7. The 1st respondent before imposing punishment of compulsory retirement, he has not issued show cause notice duly proposing punishment.
8. Learned counsel for the petitioner vehemently contended that respondent No.1 from inception have not adhered to Rule 14 of Rules, 1965. Learned counsel for the petitioner pointed out certain discrepancies in respect of statement of witnesses, which are at page 434 of paper book – volume (2), pages – 441, 435, 436, 438, 442, 430, 368, 392 and 395.
7.1 It is further contended that Clause 2.1(n) – “Byelaws” means the Bye-laws framed pursuant to Clause 22 of the Scheme.
7.2 Byelaw 21 – Central Civil Services (Conduct) Rules, 1964 to apply mutatis mutandis to Teaching and non-Teaching Staff.
7.3 Byelaw 22 – Central Civil Services (Classification, Control and Appeal) Rules, 1965 to apply mutatis mutandis to Teaching and non-Teaching Staff. Byelaw No.22.1(3) Disciplinary Authority for Teaching Staff, Council, chargesheet is permitted to be issued by the Director.
9. The afore mentioned clauses have not been adhered. There is no provision under Rules, 1965 waiver of such procedure for imposing major penalty or impracticability of holding inquiry by the Disciplinary Authority and reasons have not been recorded for waiver of procedure laid down under Rules, 1965. On the otherhand, on receipt of complaint of respondent No.3, it was bounden duty of the Committee to forward the complaint to the Disciplinary Authority for taking further action in terms of para 5 (iv), OM No.11013/2/11 Estt (A-III). It was further contended that when the respondent No. 1 imposed penalty of compulsory retirement under Rules 1965, Rule 14 mandates for holding domestic enquiry before imposing any of the penalties under Rule (v) to (ix) (major penalties) of Rule 11 of Rules, 1965. The procedure is laid down under Rule 14 of Rules, 1965 for imposing major penalties. None of the provisions have been followed. The initial stage is framing of charges and conclusion is issuance of second show cause notice seeking explanation on inquiry report and passing final order. That apart, there is no over-riding effect on CCA Rules, 1965 under the Act, 2013, Rules 2013 and ICASH Rules, 2017. No doubt, under the Conduct Rules, 1964, Rule 3-C relates to sexual harassment, but only provision for imposing one of the major penalty is Rule 14 of Rules, 1965. Respondents have not complied these mandatory provisions.
10. In support of the aforesaid contentions on behalf of the petitioner, learned counsel for the petitioner relied on the following statutory provisions, OMs and decisions.
“OM No.11013/7/2016 Estt (A.III): “2. As far as practicable the inquiry in such cases should be completed within 1 month and in no case should it take more than 90 days as per the limit prescribed under the Act”
“Under OM dated 22.12.2016 Inquiry Report recommending action against the petitioner was beyond the mandatory 90 days period prescribed by the Act, 2013, which provides for such action and it is violated.
Medha Kotwal v. Union of India (2013) 1 SCC 311:
“2. (…) Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka case (1997) 6 SCC 241: 1997 SCC (Cri) 932), SCC at p. 253, will be deemed to be an inquiry authority for the purposes of Central Civil Services (Conduct) Rules, 1964 (hereinafter called the CCS Rules) and the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the Rules.”
O.M. No.11013/2/2014 Estt (A.III) dated 27.11.2014:
“5.(iii) Committee will as far as practicable follow the procedures prescribed in CCS (CCA) Rules, 1965 for conduct of the inquiry.”
“5.(iv) If any complaint is received directly by the Committee, the same shall be referred to the appropriate disciplinary authority and the Committee shall enquire into the complaint on the complaint being referred to it by the disciplinary authority.”
Further, that Committee cannot recommend Major Penalty.
“6. In addition, the Committee will have the powers to recommend to the employer.
a) to transfer the aggrieved woman or the charged officer to any other workplace; or b) to grant leave to the aggrieved woman up to a period of three months (The leave granted to the aggrieved woman under this second shall be in addition to the leave she would be otherwise entitled to) c) to grant such other relief to the aggrieved woman as may be prescribed; or d) to deduct from the salary or wages of the charges officer such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs. Any amount outstanding at the time of cessation of the services of the charged officer due to retirement, death or otherwise may be received from the terminal benefits payable to the officer or his heirs. Such compensation will not amount to penalty under Rule 11 of CCS (CCA) Rules in terms of the Explanation (ix) to Rule 11 inserted vide Notification of even Number dated 19.11.2014”.
11. Tejinder Kaur v. Union of India , W.P No.5928/2016 (2018) 1 CLR 660 – High Court of Delhi, Single Judge.
“16. Concededly, the complaints of sexual harassment and disciplinary proceedings pursuant thereto have to be conducted in the manner as specified under the CCS(CCA) Rules, 1965.
17. The opening sentence of Rule 14(2) of the CCS (CCA) Rules, 1965 makes it clear that an inquiry would commence only when the Disciplinary Authority is of the opinion that there are grounds to enquire into the matter. Thus, if the Disciplinary Authority is of the opinion that no inquiry is warranted, the question of referring the matter to the ICC for inquiry would not arise.
20. It is apparent from the above that ICC has a dual role. It has to act as an investigation agency in the first stage and as an Inquiring Authority, if the Disciplinary Authority is of the opinion that disciplinary proceedings be initiated against the officer accused. However, it is also necessary to bear in mind that the above steps are only to serve as a guide and does not replace the statutory provisions of the Act or the CCS(CCA) Rules, 1965.”
12. Tejinder Kaur v. Union of India, LPA No.72/2018 – High Court of Delhi, Division Bench.
“Affirms the judgment of the Singe Judge in Tejinder Kaur v. Union of India WP No.5928/2016, (2018) 1 CLR 660.”
13. Sandeep Khurana v. Delhi Transco Ltd (2006) ILR 2 Delhi 1313, MANU/DE/3751/2006 – High Court of Dehi, Single Judge.
“16. The procedure for imposing the major penalty of removal from service is given in Rule 14 of CCS (CCA) Rules (…) 17. Admittedly this procedure has not been followed. The charges were not framed nor was any memorandum prepared in support of each article of charge. (…) Thus, the entire procedure given in Rule 4 of CCS (CCA) Rules has been given a complete go by.
27. More importantly neither the Departmental Complaint Committee nor the State Complaint Committee ever followed the procedure prescribed by Rule 14 of CCS(CCA) Rules. (…)It is then contended that the procedure of Rule 14 was followed in spirit and, therefore, the petitioner can have no grievance to the procedure having been bypassed.
28. These submissions of the respondents are not at all acceptable. Respondent No.1 has totally ignored the Rules. (…) There was no occasion for the petitioner to seek any assistance of a co-worker during the inquiry because no one looked upon the proceedings as if they were proceedings for imposing the major penalty.
30. When the rules are amended to say that the Complaint Committee as envisaged in the Vishaka’s case (supra) would be deemed to be Inquiry Authority for the purpose of CCS (CCA) Rules it is imperative that the Complaint Committee proceeds according to CCS Rules and in the manner in which an Inquiry Authority conducts its proceedings under the said Rules. The Supreme Court never meant that the Complaint Committees which were to function as Inquiry Authority under the CCS(CCA) Rules could return a finding of guilt against a Government servant without ever adopting the procedure of Rule 14 ibid, i.e., giving him a charge-sheet, a memorandum of delineating the allegations on which the charges are framed along with other articles like list of witnesses and the documents relied upon and then proceeding in the manner prescribed under Rule 14 of ibid. The responsibility of the Complaint Committee, by virtue of the judgment in Medha Kotwal Lele (supra) case, has immensely increased as it is now no more a fact finding Committee. It has been converted into an Inquiring Authority and, therefore, has to follow the procedure prescribed by Rule 14. The action taken cannot be supported on the plea that although Rules are ignored the principles of natural justice has been follows.”
14. Learned counsel for the petitioner submitted that in identical matter, the IISc complied issuance of notice for proposing penalty in the case of one Sri Sanna Durgappa, whereas the petitioner has been discriminated in not adhering to the afore mentioned procedure under Rules, 1965.
15. Learned counsel for the petitioner relied on the deposition of witness No.1 dated 24.11.2016 and 10.10.2017 – document No.12. The following decisions were cited on behalf of respondent No.1 – IISc:
1. Union of India and others –vs- Mohd.Ramzan Khan (AIR 1991 SC 471).
2. Managing Director, ECIL, Hyderabad and others- vs. B.Karunakar and others reported in (1993) 4 SCC 727 (paras-5, 24, 25).
(3) S P Mehta –vs- Union of India and others reported in (1994) Supplementary (2) SCC 467 (para-4) (4) Hira Nath Mishra and others –vs- The Principal, Rajendra Medical College, Ranchi and another reported in (1973) 1 SCC 805 (paras – 12 & 13) (5) The Chairman, Board of Mining Examination and Chief Inspector of Mines and another reported in 1977 SC 965 (para 13) (6) Ashok Kumar Singh –vs- University of Delhi (2017 SCC online Delhi 9935 – paras 14 & 25) (7) Avinash Nagra Vs. Navodaya Vidyala Samiti and other reported in (1997) 2 SCC 534 – paras (8) Apparel Export Promotion Council vs. A.K.Chopra reported in AIR 1999 SC 625 – paras – 28 to 30.
16. Learned counsel for the respondents has taken through the Act, 2013 provisions like: Section 2 – definition of employee, employer, sexual harassment, work place, Section 9 – complaint of sexual harassment, Section 10 – conciliation (it is not attracted in the present petition), Section 11- Inquiry into complaint, Section 12 – action during pendency of inquiry (respondent No.3 was transferred to some other Guide), Section 13 – Inquiry Report (3)(i) and Section 14(2).
17. It was pointed out Rule 9 of Rules, 2013. He has also relied on the Scheme, Byelaws, Rules, 2017 of IISc. It was further contended that under Rules, 1964, Rule 3-C relates to sexual harassment, sub-Rule 2 of Rule 14 and proviso of CCA Rules, 1965 have been fully complied. In support of these contentions, learned counsel for the respondents relied on Medha Kotwal v. Union of India (supra) – para -2. In terms of Section 29 of the Act, IISc framed Rules, 2017 on the lines of UGC Regulations. It was relied on OM dated 3.8.2009 – paras -9 and 10 relating to frequently asked the question, which has been followed in the present case. IISc has complied substantially the aforesaid provisions including issuance of second show cause notice along with inquiry report – final report and sought petitioner’s explanation.
18. Learned counsel for the respondents – IISc submitted that Rule 15 of Rules, 1965 provides that action on the inquiry report has been taken into consideration with reference to complaint itself is a charge memo. Sub-Rule 4 of Rule 7 of Rules, 2013 relates to principle of natural justice which was provided to the petitioner.
19. The contention of the petitioner is that the petitioner has been discriminated in not issuing show cause on par with one Sri Sanna Durgappa. Such issuance of show cause notice to Sri Sanna Durgappa was legally incorrect. Therefore, the petitioner is not entitled to similar procedure. Inotherwords, illegality cannot be perpetuated. On this issue, he relied on (2011) 14 SCC 187 in the case of State of West Bengal and others –vs- Debasish Mukherjee and others (para 26). Further he relied on the case of Thippeswamy (para-2). Thus petitioner has not made out any ground to interfere with penalty order.
20. Learned counsel for respondent No.2 submitted that on 2.6.2017, Committee was reconstituted. There were no averments against the 2nd respondent – Committee in respect of violation of Sections 16 and 17 of the Act, 2013 (paras – 42 to 44 to the petition). Annexure- L dated 08.02.2018 relating to findings report of the 2nd respondent is a well considered report. There were no discrepancies so as to any interference by this Court. Elaborately summarized and analyzed relating to the controversy/allegations against the petitioner by the 3rd respondent which are corroborated by audio CD containing conversation between respondent No.3 and witness No.1 and other evidences, which were adduced by the other witnesses. Witness No.1 has adduced evidence by giving statement dated 24.11.2016 and second statement dated 8.11.2017. On 10.2.2017 witness No.1 remained hostile. Witness No.13 – Krishna was an interested witness. Therefore his evidence is not relevant. In view of these facts and circumstances, there is substantial compliance in the proceedings. Hence, no interference is called for. In support of the aforementioned contentions, learned counsel for the 2nd respondent relied on the following decision:
21. In the case of Sri Pankaj Kumar –vs- Union of India & ors. in WP (C) No.408/2013 (DD 14.2.2017), copy of online has been produced, wherein the High Court of Tripura held at paras-36, 45, 50, 52:
“36. The Apex Court in catena of decisions observed that the Courts/Tribunals would deal with the cases relating to woman in a realistic manner and not allow the offender to escape on account of procedural technicalities or insignificant lacunas in the evidence and materials as otherwise the offender would receive encouragement and the victims would be totally discouraged by the offender going unpunished. The Apex Court further observed that the Court and Tribunals are expected to be sensitive in the cases involving offences against women.
45. A careful reading of the above provision makes it abundantly clear that in a case of sexual harassment, the Complaint Committee was to follow the procedure of the CCS CCA Rules as far as practicable if separate procedure has not been prescribed for the Complaint Committee. According to the respondents the Director General of CRPF issued a standing order No.4/2004 dated 16.08.2004 (Annexure-A series to the additional counter affidavit) dated 16.08.2016 and that standing order prescribes the procedure to be followed by the Complaint Committee. The standing order No.4/2004 was amended vide amendment order dated 14.07.2005 and it has been prescribed in the said amendment order that in the preliminary hearing Chairperson should serve gist of the complaint to the alleged officer in the form of Article of charge and he should be formally asked whether he pleads guilty or not based on the complaint. Another amendment was brought on 25.05.2006 to the said standing order No.4/2004 wherein it was prescribed that in the preliminary hearing the Chairperson may serve copy of the complaint to the alleged officer in lieu of Article of charge and he should be formally asked whether he pleads guilty or not based on the complaint. As per that provision the copy of the complaints were served to the petitioner by the Complaint Committee on the date of preliminary hearing. The records of the disciplinary proceeding which is placed before this Court shows that the complaints filed by respondent No.4 were supplied to the petitioner asking him to submit his written statement by a letter dated 03.03.2010 and accordingly, the petitioner submitted his detailed reply on 25.03.2010. It is, therefore, evident that the copies of the complaint were supplied to the petitioner and there is no allegation that the copies of the complaints were not supplied to him. On 26.032010 the petitioner was questioned by the Complaint Committee on the charge and copy of his written statement was supplied to the respondent No.4. It is, therefore, evident that no separate and identical charge was framed but the copies of the complaints made by the respondent No.4 were supplied to the petitioner.
50. No doubt, as contained in Article 311(2) of the Constitution specific charges to be framed in respect of the allegation against a person of civil service. Rule 14(4) prescribes that Article of charges, memorandum of imputations are to be prepared by the Disciplinary Authority and to be supplied to the charges officer with list of witnesses and the list of documents. But in a case of sexual harassment of woman in workplace the law has been clearly spelt out by the Apex Court and pursuant to the proviso to sub-Rule (2) of Rule 14 while the department has framed their own standing order to enquire into the cases of sexual harassment, I am of the considered opinion that there is no illegality for not formulating separate and identical charges specially in the case where the copies of the complaints were supplied to the petitioner according to the standing order. This argument, therefore, merits no consideration.
52. Learned counsel, Mr.Lodh also referred the same decision and submitted that the Complaint Committee was supposed to follow the separate procedure substantially and as far as practicable should follow the procedure prescribed in Rule 14 of CCS CCA Rules. The expression ‘as for as practicable’ means practicable, feasible, possible, performable. It means not interfering with the ratio prescribed under any Rule which fulfills the interest of administration, but flexible provision clothing government with powers to meet special situations where the normal process of the government resolution cannot flow smooth.”
22. Learned counsel for the 3rd respondent vehemently contended that respondent No.3 had given complaint on 23.12.2016. On 20th January, 2017, she had requested not to pursue the inquiry. On her request, the Committee has not invoked Section 10 of the Act, 2013 so as to say that the complaint dated 23.12.2016 is closed. Therefore, one of the contention of the petitioner that the first complaint dated 23.12.2016 was closed on account of respondent No.3’s request dated 20th January, 2017 and the same do not sustain due to non-compliance of procedure under Section 10 of the Act, 2013. It was also pointed out that the statements of petitioner before the Committee i.e. before commencing inquiry proceedings. The letter was quite confessional and apologetic and the petitioner has explicitly stated in the letter that he will refrain himself from doing any of his illicit incident, whereas she has retained her right to pursue the matter to the extent that in an event that the petitioner undertaking or breached or there is repeat of any of the incident. She was allowed to approach the Committee, which in turn take up the matter at priority, can initiate an inquiry. Thus it is only a continuation of proceedings in terms of complaint dated 23.12.2016 read with letter dated 29.3.2017. The Complaint Committee have examined the allegations leveled against the petitioner, which were proved before the Inquiry Committee and it was corroborated by audio clip containing conversation between respondent No.3 and witness No.1 and other oral evidences. Petitioner has been provided an opportunity including natural justice in the proceedings. Hence, petitioner has not made out a case so as to interfere with the impugned order. None other contentions were urged.
23. Heard the learned counsel for the parties.
24. Matter relates to sexual harassment will amount to misconduct. Sexual harassment will include any action or gesture, which directly or indirectly aims or as the tendency to outright modesty of a female employee and falls under general concept of definition of sexual harassment. Attempt to molest will be within mischief of misconduct. The evidence of victim, if it, inspires confidence can be relied upon. Supreme Court referred to the guidelines in Vishaka –vs- state of Rajasthan reported in (1997) 6 SCC 241, wherein it has enunciated the relevance and implication of sexual harassment in departmental proceedings as well as scope of extent of judicial review powers in respect of punishment in such cases.
25. In this backdrop, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a legislative act in India that seeks to protect women from sexual harassment at the place of work. Today’s world is accustomed to the term sexual harassment Sexual harassment can be identified as a behaviour. It can in general terms be defined as a unwelcome behaviour of a sexual nature.
Sexual harassment at a work place is a universal term in the world, whether it be a developed nation or developing nation or under developed nation. Atrocities and cruelty against woman is common everywhere. It is a problem giving negative effect of both men and women. It is seen to be happening more with women gender as they are considered to be the most vulnerable section of society in these days. Therefore, there is serious problem in the workplace and it has become one of those issues that receive lot of negative attention. Sexual harassment include it many things.
1) Actual or attempted to rape or sexual assault;
2) Unwarranted deliberate touching, leaning staff cornering or pinching;
3) Unwarranted sexual teasing, jokes remarks, or question;
4) Blistering at somewhere;
5) Kissing sounds, howling smacking lips;
6) Touching an employee, clothing, hair or body;
7) Touching or raping oneself sexual around another person.
26. Indian constitution at sexual harassment.- Sexual harassment clearly violates fundamental rights of a woman to equity under Article 14(2) and Article 15(3), her right to life under Article 21(4) and her right to practice any profession and carry on any occupation, trade or business, which includes a right to safe environment free from sexual harassment.
27. In the present case, respondent No.3 approaches IISc Committee and gave a oral complaint. Based on oral complaint, Committee called the petitioner while apprising allegations against him without disclosing identity of respondent No.3, for which, petitioner had submitted his explanation. Further respondent No.3 had filed a complaint on, 23.12.2016. Once again, petitioner was called for submission of his explanation. After receipt of petitioner’s explanation, respondent No.3 requested the Committee to not to pursue the enquiry. Thereafter, petitioner was not co-operating with respondent No.3 in respect of academic issues. Consequently, respondent No.3 pursued the Enquiry Committee to proceed with enquiry in terms of complaint dated 23.12.2016 initially, there was an error in constitution of Committee and it was rectified. Thus, enquiry was held while examining 32 witnesses and documents. Inquiry Committee come to the conclusion that allegations levelled against petitioner were proved and recommended for terminating the services of the petitioner. Disciplinary Authority proceeded to impose penalty of compulsory retirement while granting 75% of pension.
28. Learned counsel for petitioner contended that in terms of Byelaws 21 and 22, IISc have adopted Rules, 1964 and 1965. In respect of Group-A officers, Disciplinary Authority would be council. Committee has not complied with O.M. No.11013/2/2014 Estt (A.III) dated 27.4.2014 and O.M. No.11013/7/2016 Estt (A.III) dated 22.12.2016, which relates to in not following the procedure prescribed in Rules, 1965 for conduct of inquiry. Committee should have referred the complaint to the Disciplinary Authority before taking further steps. Inquiry should have been completed within one month and in no case, it should completed within 90 days. Complaint should have been communicated to the petitioner within a period of seven days in terms of Rule 7.2 of Rules for internal Committee, IISc. Submission of inquiry report is beyond mandatory period of 90 days in terms of Act, 2013. Rule 14(2) of Rules, 1965 has not been complied. The alleged allegations of sexual harassment against the petitioner amounts to misconduct. If any misconduct committed by an employee/officer of IISc, Disciplinary Authority is required to be adhered Rules, 1964 read with Rules, 1965. Disciplinary Authority should have initiated inquiry by framing charges and further proceedings and further Inquiry Committee should have appointed as Inquiry authority. The other procedures for imposing major penalty should have been adopted. In the present case, admittedly charge memo have not been framed and further procedure for imposing major penalty under Rules, 1964 read with Rules, 1965. In the present case, one of major penalty imposed on the petitioner is compulsory retirement. These mandatory requirements by the Committee and other competent persons have not complied with the statutory provisions. Therefore, from the inception, there are lapses/lacunas in commencing inquiry. Supreme Court time and again held that if a statute prescribes particular thing, it has to be done in that manner only and it has to be carried out. Therefore, Disciplinary Authority should have resorted to Rule-3-C of Rules, 1964 and Rule 14(2) of Rules, 1965. Rule 14(2) of Rules, 1965 reads as under:
“3-C. Prohibition of sexual harassment of working women.-(1) No Government servant shall indulge in any act of sexual harassment of any women 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 women at such work place.
Explanation.- For the purpose of this rule, “sexual harassment” includes such unwelcome sexually determined behaviour, whether directly or otherwise, as-
(a) physical contact and advances;
(b) demand or request for sexual favours;
(c) sexually coloured remarks.
(d) showing any poinography; or (e) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.”
“14(2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof:
[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 harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules”] Explanation 1.- Where the Disciplinary Authority itself holds the inquiry, any reference in sub-rule (7) to sub-rule(20) and in sub-rule (22) to the inquiring authority shall be construed as a reference to the Disciplinary Authority.
Explanation 2. – Where the Disciplinary Authority appoints a retired Government servant as inquiring authority, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) shall include such authority.”
29. Disciplinary Authority can exercise power of imposing one of the major penalty only in the event of following the procedure under Rule 14 of Rules, 1965. Admittedly, no such procedure has been followed. Therefore, imposition of penalty of compulsory retirement extending 75% pension to the petitioner is contrary to Rule 14(2) of Rules, 1965. On these legal issues from the inception till imposition of penalty of compulsory retirement extending 75% pension are liable to be set aside.
30. Respondents vehemently contended that in the case of sexual harassment/misconduct of an employee or officer of IISc, one need not follow the Rule 14(2) of Rules, 1965 and for the reason that Act, 2013 and Rules, 2017, IISc governed the field. Therefore, one need not adhere to Rule 14(2) of Rules, 1965. If such a contention is apprised then the question would be whether Disciplinary Authority can impose one of the major penalty of compulsory retirement. Disciplinary Authority is empowered to impose one of the major penalty only after resorting to Rule 14(2) of Rules, 1965. Respondents have not apprised this Court as to over- riding effect in respect of Rules, 1964 read with Rules, 1965. Moreover, Rules, 2017 framed by IISc is contrary to Section 29 of the Act, 2013 Section 29 empowers the government to frame Rules, whereas in the present case Rules, 2017 issued by IISc is in the absence of any source of power. That apart, Rules, 2017 of IISc has no over-riding effect on Rules, 1964 read with Rules, 1965 since there is no amendment to Bye-laws. In Bye-laws, IISc have adopted Rules, 1964 and Rules 1965. That apart proviso to Rules 14(2) Mandate Inquiry Committee to hold inquiry under these Rules means Rules, 1965.
31. Learned counsel for the petitioner submitted that audio clip contending conversation held between respondent No.3/complainant and witness No.1 on 30th November, 2016, which was submitted on 8.10.2017. No other documents were presented in the inquiry, whereas witness No.1 contradicted between first and second statement. Respondent No.3 has not produced any material evidence against petitioner like phone records, whatsapp messages in order to corroborate her allegations against petitioner, whereas respondents submitted that sufficient evidence material have been taken into considered by the Committee in order to prove the allegations levelled against the petitioner. Such allegations were corroborated by material as well as depositions made by the witnesses. Therefore, no interference is called for. Scope of judicial review on merits is limited in view of decision of the Supreme Court in the case of Union of India –vs- P Gunashekharan reported in AIR 2015 SC 545. In the said case, the following principles have been laid down:
“13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No.I was accpeted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusion in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.”
Petitioner’s contention relating to interference on merit of the case that it is a case of no evidence and it cannot be gone into by this Court unless and until there were perverse evidence. Petitioner has not pointed out that evidence taken by the Committee were perverse. On the other hand, he has pointed out that present case can be interfered in terms of Clause (b) the enquiry is held according to the procedure prescribed in that behalf: i.e., Rules, 1965 or not?
32. Learned counsel for the petitioner contended that before imposition of penalty of compulsory retirement, there should have been notice for proposal of a particular punishment. The 1st respondent has not issued such notice, whereas in the case of Sri Sanna Durgappa, such procedure has been adopted. Respondents countered that there is no such provision for issuance of show case notice relating to proposal of imposing penalty. If respondent No.1 had given such opportunity to Sri Sanna Durgappa, it is only an illegality. Such illegality cannot be extended to the petitioner. Petitioner has also not pointed out under Rules, 1965, Disciplinary Authority before imposing penalty, show cause notice should have been issued relating to proposed imposition of penalty. In the absence of any statutory provision, petitioner has not made out a ground. On the contrary sub-Rule (6) of Rule 15 of Rules, 1965 prohibits like “it shall not necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed”.
33. Learned counsel for the petitioner pointed out certain discrepancies in respect of statements of witnesses, which are at page Nos.434, 441, 435, 436, 438, 442, 440, 368, 392 and 395 (volume – 2 of paper book), which are not perverse.
34. Learned counsel for the petitioner submitted that for waiver of procedure for imposing major penalty, no reasons have been recorded. If there is an impracticability of adopting procedure for imposing major penalty, Disciplinary Authority should have recorded the reasons. Such a position is not in the present case. Inquiry has been held, only thing it should have been adhered to the provisions for imposition of major penalty under Rule 14(2) of Rules, 1965. ICC as soon as on receipt of complaint of respondent No.3, it should have referred to Disciplinary Authority. Disciplinary Authority should have taken appropriate steps to initiate inquiry under Rule 14(2) of Rules, 1965 and by framing Articles of charges, statement of imputation, list of documents and list of witnesses while appointing Committee as Inquiry Authority. Such a procedure has not been adopted. Disciplinary Authority should have taken a decision if there is an impracticability of holding inquiry or framing charges while exercising power under Rule 19 - Special procedure in certain cases in respect of Rules, 1965. Therefore, in the absence of waiver of procedure under Rule-19 read with Rule 14 of Rules, 1965 by a speaking order or recording reasons of Disciplinary Authority, side tracking Rule 14(2) of Rules, 1965 is a contrary to the aforesaid provisions.
35. Petitioner relied on the following decisions:
1) Medha Kotwal v. Union of India (para-2) reported in (2013) 1 SCC 311.
2) Tejinder Kaur v. Union of India (paras – 16,17 and 20). It was affirmed by the Division Bench in LPA No.72/2018.
3) Sandeep Khurana v. Delhi Transco Ltd. (paras – 16, 17, 27, 28 and 30) cited supra.
4) Union of India v. S K Das (WP No.453/2015, MANU/DE/2866/2016) High Court of Delhi, DB 5) Debjani Sengupta v. The Institute of Cost Accountants of India (WP No.4806/2019 – High Court Calcutta).
6) State Bank of India v. Ranjit Kumar Chakraborty (2018) 12 SCC 807.
7) P K Khanna v. State Bank of India (CWP No.1782/1998) – High Court of Punjab and Haryana.
8) A.Daili (Dr. v. Jawararlal Nehru University (WP No.8222/2003) – High Court of Delhi.
9) Gurnam Singh v. Union of India (CWP No.14324/2015) – High Court of Punjab and Haryana (DB) 36. Petitioner’s contention that there is violation of Sections 16 and 17 of the Act, 2013, respondents No.1 and 2 have denied that they have gone to the Press, whereas reading of news items, it is evident that both Director and Committee have given statements. Both Director and Committee have not approached the author of news items contending that they have not issued any statement to press. Therefore, prima facie it is evident that both the Director and respondent No.2/Committee have committed error in giving statement to the Press and violated the aforesaid provisions. In this regard competent authority is directed to take action in accordance with law.
37. Learned counsel for respondents supported the procedure of inquiry and imposition of penalty by the Disciplinary Authority. It is vehemently contended that there was serious allegations levelled against petitioner and he deserves for such punishment having regard to the evidence adduced before the Inquiry Committee. Proviso to 2 of Rule 14 of Rules, 1965 has been complied. If there is any minor discrepancy in not following the procedure, it does not vitiate procedure adopted by the IISc and Disciplinary Authority. Supreme Court time and again examined holding of inquiry in the case of sexual harassment, in this regard respondent No.1 cited following decisions numbering 17.
1. Vishaka and others –vs- State of Rajasthan and others (AIR 1997 SC 3011).
2. Medha Kotwal Lele and others –vs- Union of India and others (2013) I SC 311.
3. Avinash Mishra –vs- Union of India WP (C) No.821/2014 (DD 30.9.2014) passed by the Delhi High Court.
4. Aureliano Fernandes and ors. –vs- State of Goa and ors. (MANU/MH/0377/2012).
5. State Bank of India & ors. –vs- Mohammad Badraddin (CA No.5604/2019) (DD 16.7.2019) passed by the Supreme Court of India.
6. Union of India and others –vs- Mohd.Ramzan Khan (AIR 1991 SC 471) 7. Managing Director, ECIL, Hyderabad and others – vs- B Karunakar and others ((1993) 4 SC 727).
8. S P Mehta –vs- Union of India and others (1994 Supp (2) SCC 467).
9. The Chairman, Board of Mining Examination and Chief Inspector of Mines and another –vs- Ramjee (AIR 1977 SC 965).
10. Hira Nath Mishra and others –vs- The Principal, Rajendra Medical College, Ranchi and another ((1973) 1 SC 805).
11. Ashok Kumar Singh –vs- University of Delhi & ors. (2017 SCC Online Del 9935).
12. Apparel Export Promotion Council –vs- A K Chopra (AIR 1999 SC 625).
13. S Thippeswamy –vs- Managalore University reported in MANU/KA/1014/2011.
14. Avinash Nagra –vs- Navodaya Vidyalaya Samiti and others ((1997) 2 SC 534) 15. State of West Bengal and others –vs- Debasish Mukherjee and others ((2011) 14 SC 187).
16. State Bank of Patiala and others –vs- S K Sharma (1996 (3) SCC 364).
17. Anand Bazaar Patrika –vs- its Workmen (AIR 1964 SC 339) 38. The aforesaid citations are not relating to interpretation of Rule 14(2) of Rules, 1965. Except in Aureliano’s case wherein Rules, 1965 not interpreted appropriately as to hold enquiry when proviso mandates committee to follow Rules, 1965, whereas decision in the cases of Tejinder Kaur and Sandeep Khurana are directly on the point whether Rules, 1965 is required to be complied or not. Therefore, the cited decisions do not assist the respondents’ case. At this stage, it is to be noted that Supreme Court in the case of Nair Service Society –vs- T Beermastan reported in (2009) 5 SCC 545, para-48 of the judgment reads thus:
“48. Several decisions have been cited before us by the respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field. Reservation provisions are enabling provisions, and different State Governments can have different methods of reservation. There is no challenge to the Rules, and what is challenged is in the matter of application alone. In our opinion the communal rotation has to be applied taking 20 vacancies as a block.”
39. In view of the afore mentioned decisions and other decisions, the Supreme Court held that if a statute empower a particular things is to be done by the Authority, it shall be done only in that manner.
“………Judicial review of administrative action by De-Smith, wolf and Jowell (5th edition) which is as follows:
“The rule against delegation.
A discretionary power must, in general, be exercised only by the authority to which it has been committed. It is a well known principle of law when a power has been confided to a person in circumstances indicating that trust is a being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another”.
Administrative law, by H.R. Wade and C.F. FORSYTH (9th edition), chapter- 10 as follows:
“Inalienable discretionary power;
An element which is essential to the lawful exercise by the authority upon whom it is conferred and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. Normally courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees are delegate. However, expressed authorised by the authority endowed with the power”.
Hon’ble Supreme Court in the following cases held as under:
“(a) In the case of Dhanajaya Reddy vs. State of Karnataka reported in (2001) 4 SCC 9, in para No.23 held as under:-
“23. It is a settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all. This Court in State of U.P. v. Singhara Singh, AIR 1964 SC 358 (AIR p. 361, para 8) held:-
“A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down.”
(b) Supreme Court in the case of Director General, ESI and another vs. T. Abdul Razak reported in (1996) 4 SCC 708 in para no.14 held as under:-
“14. The law is well settled that in accordance with the maxim delegates non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless subdelegation of the power is authorised by express words or necessary implication.”
(c) Supreme Court in the case of Chairman-cum-Managing Director, Coal India Limited and others vs. Ananta Saha and others, reported in (2011) 5 Supreme Court Cases, 142, in para nos. 32 and 33 held as under:-
“32. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim sublato fundamento cadit opus is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.
33. In Badrinath v. Govt. of Tamil Nadu & Ors., AIR 2000 SC 3243, this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasijudicial proceedings is equally applicable to administrative orders.”
(d) Supreme Court in the case of M.P. Wakf Board vs. Subhan Shah (Dead) by LRs and another, reported in (2006) 10 Supreme Court Cases 696, in para nos. 27 to 29 read as under:-
“27. The Wakf Act is a self-contained code. Section 32 of the 1995 Act provides for powers and functions of the Board. Sub-section (2) of Section 32 of the 1995 Act enumerates the functions of the Board without prejudice to the generality of the power contained in sub-section (1) thereof. Clauses (d) and (e) of sub-section (2) of Section 32 of the 1995 Act read as under:
"32. (2)(d) to settle schemes of management for a wakf:
Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard;
(e) to direct-
(i) the utilisation of the surplus income of a wakf consistent with the objects of a wakf;
(ii) in what manner the income of a wakf, the objects of which are not evident from any written instrument, shall be utilized;
(iii) in any case where any object of wakf has ceased to exist or has become incapable of achievement, that so much of the income of the wakf as was previously applied to that object shall be applied to any other object, which shall be similar, or nearly similar or to the original object or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the Muslim community:
Provided that no direction shall be given under this clause without giving the parties affected an opportunity of being heard.
Explanation-For the purposes of this clause, the powers of the Board shall be exercised – (i) in the case of a Sunni wakf, by the Sunni members of the Board only; and (ii) in the case of a Shia wakf, by the Shia members of the Board only:
Provided that where having regard to the number of the Sunni or Shia members in the Board and other circumstances, it appears to the Board that the power should not be exercised by such members only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members of the Board for exercising its powers under this clause;"
28. The Tribunal had been constituted for the purposes mentioned in Section 83 of the 1995 Act. It is an adjudicatory body. Its decision is final and binding but then it could not usurp the jurisdiction of the Board. Our attention has not been drawn to any provision which empowers the Tribunal to frame a scheme. In absence of any power vested in the Tribunal, the Tribunal ought to have left the said function to the Board which is statutorily empowered therefor. Where a statute creates different authorities to exercise their respective functions thereunder, each of such authority must exercise the functions within the four corners of the statute.
29. It is trite that when a procedure has been laid down the authority must act strictly in terms thereof. (See Taylor V Taylor, (1875) 1 Ch D 426 : 45 LJ Ch 373).”
(e) Supreme Court in the case of Sidhartha Sarawgi Vs. Board of Trustees for the Port of Kolkata and others reported in (2014) 16 SCC 248, in para nos. 4, 9 and 10 held as under:-
“4. There is a subtle distinction between delegation of legislative powers and delegation of nonlegislative/administrative powers. As far as delegation of power to legislate is concerned, the law is well settled: the said power cannot be sub- delegated. The legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and formally enacting that policy into a binding rule of conduct. Subordinate legislation which is generally in the realm of rules and regulations dealing with the procedure on implementation of plenary legislation is generally a task entrusted to a specified authority. Since the legislature need not spend its time for working out the details on implementation of the law, it has thought it fit to entrust the said task to an agency. That agency cannot entrust such task to its subordinates; it would be a breach of the confidence reposed on the delegate.
9. The Constitution confers power and imposes duty on the legislature to make laws and the said functions cannot be delegated by the legislature to the executive. The legislature is constitutionally required to keep in its own hands the essential legislative functions which consist of the determination of legislative policy and its formulation as a binding rule of conduct. After the performance of the essential legislative function by the legislature and laying the guiding policy, the legislature may delegate to the executive or administrative authority, any ancillary or subordinate powers that are necessary for giving effect to the policy and purposes of the enactment. In construing the scope and extent of delegated power, the difference between the essential and nonessential functions of the delegate should also be borne in mind. While there cannot be sub delegation of any essential functions, in order to achieve the intended object of the delegation, the non-essential functions can be sub- delegated to be performed under the authority and supervision of the delegate.
10. Sometimes, in the plenary legislation itself, the lawmakers may provide for such sub-delegation. That is what we see under Sections 21 and 34 of the Major Port Trusts Act, 1963, which we shall be discussing in more detail at a later part of this judgment.”
(f) Supreme Court in the case of Captain Sube Singh and others vs. Lt. Governor of Delhi and others, reported in (2004) 6 Supreme Court Cases, 440, in para no. 29 held as under:-
“29. In CIT vs. Anjum M.H. Ghaswala, (2002) 1 SCC 633, a Constitution Bench of this Court reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajay Reddy vs. State of Karnataka, (2001) 4 SCC 9). The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1) (d) read with sub-clause (i) thereof.”
(underline emphasized) If a statute prescribed particular manner, it should be carried out only in that manner only. In the present case, respondents have not apprised that relevant provisions like Rule, 14 of Rules, 1965 and other provisions under the Act, 2013 and Rules, 2013 have been taken into consideration by the Inquiry Committee and Disciplinary Authority for the purpose of holding inquiry and imposing major penalty of compulsory retirement. Therefore, the cited decisions on behalf of the respondents have no application.
40. Over all the following statutory provisions should have been taken note of and dealt accordingly:
a) Section 9 of Act, 2013 relates to complaint.
b) Section 11 of Act, 2013 relates to inquiry into complaint (with reference to provision of Service Rules applicable stated so in the aforesaid Sections) c) Section 12 of Act, 2013 relates to action during pendency of inquiry, which has been complied while allotting respondent No.3 to some other Guide.
d) Section 13 of Act, 2013 relates to inquiry report forwarding to employer, if it is proved – recommendation (3)(i)?
e) Section 16 of Act, 2013 relates to violation by the Committee.
f) Section 17 of Act, 2013 relates to violation by the Committee.
g) Section 29 of Act, 2013 relates to violation by the Committee.
(i) Rule 7 of Rules, 2013 (2) & (4) have not been complied.
(ii) Charges levelled against petitioner proved and it was recommended to employer, which is in accordance with provisions.
(a) Rule 3-C of CCS (Conduct) Rules, 1964 has not been properly dealt by the Authorities.
(b) Rule 11 of Rules, 1965 - penalties (c) Rules 14(2) of CCS Rules, 1965 have not been complied.
(d) Rules 2017 of IISc, is contrary to Section 29 of the Act, 2013 to frame Rules, Competent Authority is only the Government.
41. Even though respondent No.1 has adopted UGC Regulations, Competent Authority to frame IISc Rules for ICC, 2017 is only by the Government under Section 29 of Act, 2013. These contentions are on the legal issues. Under the judicial review, if there is any violation of any statutory provisions, the Court can interfere (Gunasekaran’s case)- Para 13 (b).
42. Accordingly, petitioner has made out a case to interfere with the impugned order in not following statutory provisions from the stage of receipt of complaint and not forwarding to Disciplinary Authority. Inquiry Committee has committed serious errors in not adhering to the procedures under Rules, 1965 as mandated under proviso to Rule 14 (2) of Rules, 1965. It is to be noted that copy of the complaint was not furnished timely i.e., within 7 days and other procedures including submission of report within 90 days. In not forwarding complaint to Disciplinary Authority, no doubt, Committee would be deemed to be Inquiry Authority, but statute mandates procedure to be followed viz; Rules, 1965. Similarly Disciplinary Authority on receipt of inquiry report should have treated as preliminary report and proceeded to initiate inquiry under Rule 14 of Rules, 1965. Thus due to lapses on the part of Inquiry Committee and Disciplinary Authority, whole proceedings are vitiated till imposition of penalty. Accordingly, the impugned order dated 17.10.2018 at Annexure-R issued by respondent No.1, the impugned inquiry report dated 28.2.2018 at Annexure-N issued by respondent No.2 and the impugned findings report dated 8.2.2018 at Annexure-L issued by respondent No.2 are liable be set aside.
43. Learned counsel for petitioner relied on Medha Kotwal –vs- Union of India (para-2) (supra), Disciplinary Authority will act on the re port of IISc Committee in accordance with Rules, means: Rule 3 of Rules, 1964 read with Rules, 1965 have not been complied. Supreme Court has taken note of that there is non-compliance of the aforesaid provision.
44. OM dated 27.11.2014 requires as and when complaint is received by the Committee, it has to be placed before the Disciplinary Authority and Committee cannot recommend major penalty – Rules 5.(iii) and 6.
45. In the case Tejinder Kaur –vs- Union of India, it relates to complaints of Rules, 1965 (paras – 16, 17 and 20). It was further affirmed by the Division Bench at paras – 9 and 12. It is held that complaints to Rules, 1965 is required.
46. In the case of Sandeep Khurana –vs- Delhi Transco Ltd.(paras-16 and 17) relate to requirement of complaints to Rules, 1965 (paras – 27, 28 and 30) relating to in not following Rules, 1965.
47. In the case of Union of India -vs- S K Das in WP No.453/2015 (DB) (paras-19, 26 and 27).
48. In the case of Debjani Sengupta –vs- The Institute of Cost Accounts of India at para – 22, Supreme Court reiterated preliminary report and consequently disciplinary Rules require to be followed.
49. In the case of State Bank of Inida –vs- Ranjit Kumar Chakraborty (para-3) and P K Khanna –vs- State Bank of India (CWP No.1782/1998 (para – 6), these two decisions are relating to violation of principles of natural justice. Even to the extent that if Rule is silent in that event principal of natural justice will bring to action. These two decisions do not assist the petitioner.
50. In view of the decision rendered in CA No.5604/2019 (SBI –vs- Mohd. Badruddin, Supreme Court that it is mandatory to issue notice of proposed punishment (DD 16.7.2019).
51. IISc. Policy on Prevention and Prohibition of Sexual Harassment at Workplace, 2017(Clause 16(iii) and Rule 11.1 have not been complied.
52. Petitioner’s admission – apology before commencing of inquiry is not an admission in view of decision of learned Single Judge in the case of A.Daili (Dr.) v. Jawaharlal Nehru University (WP No.8222/2003), wherein it is held that it is not an admission.
53. In the case of Gurnam Singh –vs- Union of India (CWP No.14324/20150 High Court of Punjab and Harayana, (para-14), scope of Articles 226 and 227 of the Constitution in respect of disciplinary proceedings has been considered while referring to P Gunasekaran’s case. Under what circumstances under Articles 226 and 227 of the Constitution, in disciplinary proceedings, the Court can interfere.
54. Failure to communicate complaint within time limit stipulated under Rule 7(2) of Rules, 2013 (within 7 days) and UGC Regulation No.8.1 of Regulations, 2015, ICC was required to communicate the complaint within a period of seven days. Respondents have not complied the mandatory procedure.
55. In terms of Section11(4) of Act, 2013 read with OM dated 27.11.2014 (para-2) mandates that inquiry to be completed within 90 days. In the present case, there is non-compliance to the aforesaid provision.
56. In the case of Pankaj Kumar (WP No.408/2013) cited on behalf of respondent No.2, the same is pending consideration before the Division Bench.
57. Learned counsel for respondent No.1 relied on Medha Kotwal Lele and others –vs- Union of India and others (para-2), Supreme Court held that Complaints Committee deemed to be in Inquiry Authority for the purpose of Rules 1964.
58. In the case of Avinash Mishra –vs- Union of India (WP (C) No.821/2014 (DD 30.9.2014), Disciplinary Authority had an option to initiate proceedings under Rule14 of Rules, 1965 for imposing major penalty read with Rule 3 of Conduct Rules, 1964.
59. In the case of Aureliano Fernandes and ors – vs- State of Goa and Ors., in this case, Rule 3 of Rules, 1964 and Rules 14(2) and 11 of Rules, 1965 have not been complied.
60. Learned counsel for respondent No.1 relied on the following decisions that the issuance of notice of proposed punishment is not a mandatory.
a) CA No.5604/2019 in the case of State Bank of India & ors. –vs- Mohammad Badraddin (DD 16.7.2019);
b) Union of India and others –vs- Mohd. Ramzan Khan reported in AIR 1991 sc 471 (para No.15);
c) Managing Director, ECIL, Hyderabad and others – s- B Karunakar and others reported in (1993) 4 SC 727 (para Nos.25 and 28).
d) S P Mehta –vs- Union of Inida and others reported in 1994 Supp (2) SCC 467 (para No.4).
e) The Chairman, Board of Mining Examination and Chief Inspector of Mines and another reported in AIR 1977 SC 965 (para No.13).
f) Sub-rule (b) of Rules 15 of Rules, 1965.
These decisions support the contentions of respondent No.1 that show cause notice proposing penalty is not mandatory. Therefore, petitioner’s contention that he had not been provided show cause notice of proposed penalty before imposing penalty of compulsory retirement is hereby rejected.
g) Hira Nath Mishra and others –vs- The Principal, Rajendra Medical College, Ranchi and another reported in (1973) 1 SC 805 (para No.12).
h) In LPA No.305/2017 in the case of Ashok Kumar Singh –vs- University of Delhi reported in 2017 SCC online Del 9935 (para-14).
60. Issue in the present case is relating to identity of witnesses need not be revealed, whereas legal issues have not been considered. Hence, it is not relevant. Similarly in the case of Apparel Export Promotion Council –vs- A K Chopra reported in AIR 1999 SC 625 (para Nos.28 and 29).
61. In the case of S Thippeswamy –vs- Mangalore University reported in MANU/KA/1014/2011 (para Nos.11, 25 and 26).
62. Office Memorandum dated 3.8.2009 with reference to Vishaka’s case (guidelines) (para Nos.6, 8 and 12).
63. Aforementioned decisions and OM have no relevancy for the present case since relevant provision like Rules, 1964 and Rules, 1965, Act, 2013, Rules, 2013, Rules, 2017 and various office memorandums issued subsequent to the latest judgments.
64. In the case of State of West Bengal and others –vs- Debasish Mukherjee and others reported in (2011) 14 SC 187 (para No.26) relates to illegality need not to extent to similarly situated persons. If issuance of show cause notice proposing to impose penalty on par with one Sri Sanna Durgappa. It is true, illegality need not be perpetuated. In the present case, Rule, 2017 provide for issuance of show cause notice, whereas sub-rule (6) of Rule 15 of Rules, 1965 prohibits.
65. State Bank of Patiala and others –vs- S K Sharma reported in 1996(3) SCC 364 (para No.33) relates to scope of judicial review. In the matter of disciplinary proceedings, scope of judicial review has been dealt elaborately in the case of P Gunasekaran referred in Gurnam Singh –vs- Union of India.
66. In the case of Anand Bazaar Patrika –vs- Its Workmen reported in AIR 1964 SC 339 (para No.12) do not assist the respondent’s case.
67. OM dated 13.2.1998 relates to Vishaka’s case and in subsequent OMs dated 7.8.2009 and 2.2.2009 reiterated frequently asked questions format. OM dated 7.8.2009 stipulates inquiry as far as practicable in accordance with the procedure laid down in these Rules while referring to Rule 3C of Rules, 1964. The aforesaid OMs do not assist the respondents for the reason that petitioner’s misconduct is required to be examined while imposing major penalty only under Rules, 1965 in particularly, Rule 14 and Rule 11 of Rules, 1965 read with Rule 3-C of Rules, 1964. In the present case, no charge sheet and consequential procedure have not been followed in terms of Rule 14. Therefore, cited OMs do not assist respondent No.2.
68. In the case of Syed T.A Naqshbandi & ors. – vs- State of Jammu and Kashmir reported in (2003) 9 SCC 592, wherein the Supreme Court held that the conditions of service of members of any public service are governed by Statutory Rules or orders and so long as such Rules or orders continue, they cannot yield to any policy decisions taken even to amend or modify them.
In the instant case, due to lack/ignorant of procedure prescribed under Rules 1964, Rules 1965, Act 2013, Rules 2014, ICC Rules 2017 and various official memorandums issued by the Government of India from time to time, due to which, ICC Committee and Disciplinary Authority have committed error in not following stipulated provisions in the aforesaid Act, Rules and official memorandums. Consequently, from the inception in not furnishing copy of the complaint, the relevant provisions/procedures have not been followed. Thus, petitioner is entitled to relief only on the legal issues. Therefore, it is necessary to have refresher training programme to such of those Committee Members as well as Disciplinary Authority. In this regard, Government of India/Disciplinary Authority/Experts like a trained persons should conduct programme to apprise how to conduct inquiry in a sexual harassment case. In this regard, Department of Personnel & Training is requested to make necessary arrangement for refresher training programme to the Members of Committee and Disciplinary Authorities so as to avoid any procedural/violation statutory rules in conducting inquiry and punishing concerned government servant/ employee/student and other staff of the department/organization/institution. Copy of this order shall be communicated to the Secretary to1 Department of Personnel & Training and Law Department of Government of India, through Registry.
RESULT As a upshot of the above analysis, both on factual and legal feature of the matter.
(i) The findings report dated: 08.02.2018 at Annexure-L issued by the respondent No.2, the inquiry report dated: 28.02.2018 at Annexure-N issued by respondent No.2 and the order dated: 17.10.2018 at Annexure-R issued by respondent No.1 are set aside.
(ii) Concerned authority is hereby directed to take appropriate action against Committee Members and Director in accordance with law for violating Sections 16 & 17 of Act, 2013, after providing ample opportunity to them. Such proceedings shall be completed within a period of four months from the date of receipt of this order.
Accordingly, writ petition stands allowed.
Rule is made absolute in the above terms. There shall be no order as to costs.
Pending IAs, if any, do not survive and stand disposed of.
Sd/- JUDGE Bkm.