'Desire Of Aggrieved Woman To Not Pursue Sexual Harassment Case Must Be Respected': Calcutta High Court Stalls Proceedings Against University Professor

The Calcutta High Court on Tuesday observed that if a woman refuses to press sexual harassment charges and gives it in writing to the members of the Internal Complaints Committee (ICC), the her decision must be respected. In the instant case, the petitioner who is professor in the University of Burdwan had moved the High Court challenging the order of debarment levelled against him for allegedly sexually harassing a university student.

Justice Amrita Sinha noted that no formal complaint of sexual harassment had been made by the alleged victim to the concerned authorities and thus opined,

"There is no evidence from the student that she intends to proceed with the matter. On the contrary, she prefers a quite burial to the entire incident. There is no reason why the desire and intention of the lady student will not be taken into consideration while dealing with the matter"

The concerned student had made a written communication to the members of ICC categorically stating that she does not wish to make any formal or written complaint about the alleged incident of sexual harassment. She has also indicated in her email that her parents were also not willing to lodge a formal complaint in connection with the incident which allegedly took place.

Taking cognisance of her express denial to press charges, the Court opined,

"Had the student been really aggrieved with the action of the petitioner then she ought to have taken steps in proper time to protest the same. On the contrary, it appears that there was no intention of the lady ever, to fight for her rights. Law provides enough scope and facility to an aggrieved woman to file a complaint either personally or through persons authorised by her. She sat tight over the matter for nearly two years and thereafter the alleged incident was brought to the forefront by third parties, who neither had personal knowledge of the incident nor were witnesses to the incident. Reliance was placed on audio clippings, veracity of which have not been tested. It may be that the lady was threatened or intimidated not to proceed further in the matter. It is possible that the student was not advised and guided properly. But where the lady herself puts forth in writing that neither she nor her parents intend to proceed with the matter, then the desire of the lady has to be respected."

In the instant case, by an order dated September 9, 2020 the Registrar of the University had notified the petitioner that he has been debarred from all examinations and academic activities pursuant to the resolution of the Executive Council on September 8, 2020. Thereafter, the petitioner had submitted an application before the University recalling the order of debarment.

The Registrar vide a letter dated September 26, 2020 had intimated the petitioner that the Executive Council had refused to withdraw the order of debarment. Being aggrieved by the same, the petitioner had filed the instant petition seeking a recall of the order of debarment and praying for an order of injunction restraining the concerned authority from proceeding with the inquiry.

The petitioner had argued before the Court that there had been no formal complaint lodged by the student against him in terms of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act) and thus the initiation of proceedings against him was 'bad ab initio'. He had further contended that the alleged victim had graduated from the University way back in the year 2018 and that allegations of sexual harassment had surfaced in the year 2020- long after the period of limitation prescribed under the Act.

After a perusal of the rival submissions, the Court noted that the report of the ICC reveals that the proceedings under the Act had been initiated by relying on certain emails and audio clips submitted by various organisations and students' union. Emails had been forwarded to the ICC by the Akhil Bharatiya Vidyarthi Parishad, BU and the Head, Department of English and Culture Studies. Furthermore, an audip clip had been submitted to the ICC by the Bardhaman Viswavidyalaya Chhatra Samsad.

Expressing concern about the veracity of these documents, the Court opined,

"There is no complaint from the student. The aforesaid documents i.e the email and audio clip were never re-checked or verified to test its genuineness"

The Court also referred to Section 9 of the Act which stipulates that it is mandatory for an aggrieved woman to make a complaint in writing alleging sexual harassment within a period of 3 months from the date of the alleged incident and only thereafter can the ICC be constituted. However, the time period may be extended for a further period of 3 months pursuant to the discretion of the Court. If the aggrieved woman is unable to make a complaint on account of any form of infirmity, any other person so prescribed can lodge a complaint on her behalf, the Court further noted.

"It appears from the said Act and the corresponding Rules that a complaint either from the aggrieved person or on behalf of the aggrieved person is a sine-quanon for the purpose of initiating any proceeding under the said Act", the Court reiterated.

Emphasising on the importance of the period of limitation prescribed under the Act, the Court noted that such a time limit is important so as to 'check stale allegation being levelled against persons with a view to harass them.' Further, it also helps in ensuring that there is no tampering of the evidence or intimidation of witnesses, the Court added.

"The student has passed out from the University in the year 2018, but for strange reasons, no complaint was lodged either by the student or any competent person on her behalf within the time as specified in the said Act and the corresponding Rules. After lapse of about two years the incident surfaced, that too, at the behest of some organization/ students' union. Neither the students' union nor any of its members have obtained consent from the concerned student prior to proceeding with the matter. The complainants do not have any personal knowledge of the alleged incident. It appears that, for reasons best known to them, the Union became extra vigilant and re-opened the case, when practically the alleged incident died a natural death. The same has caused disrepute to not only the petitioner but also to the University and the student concerned", the Court opined further.

Justice Sinha further noted that the university had initiated disciplinary proceedings against the petitioner 'without application of mind' by relying solely on the recommendation of the ICC.

"The University ought to have formed an independent opinion by checking the corresponding law as to whether it was permissible for initiating proceeding in such a situation", the Court remarked.

It was further observed that the allegations against the petitioner have 'criminal connotations' and thus without being convinced and satisfied with the documents, the University ought not to have initiated any proceeding against the petitioner.

The Court proceeded to observe that women of today ought to reap the benefit of the legislation and accordingly ensure that offenders are duly penalised. In this regard, the Court remarked,

"Non-reporting of incidents of sexual harassment is a matter of concern. Gone are the days when women had little option but to suffer tight-lipped the act of sexual harassment. After the promulgation of the Act, the legislature has provided a very strong and effective weapon in the hands of women. Modern day women ought to make use of the Act as and when necessary. Several organisations are actively supporting the cause and standing by the side of oppressed women so that they come forward to report incidents of sexual harassment. Till such acts are reported and the offenders brought to book, the purpose of the Act will remain unfulfilled. The object of such legislation will be frustrated and defeated. The offenders will get a free run. It is time that society starts taking women seriously and treat them with dignity, not out of fear of the law but out of respect. At the same time, they have to be aware that if there is any wrong step, law will not spare them".

Accordingly, the petition was disposed of by setting aside the rustication order of the University, however leave was granted to the University to proceed against the petitioner under the concerned service rules.

Case Title: Angshuman Kar v. State of West Bengal & Ors

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