Before Starting Enquiry, ICC Can Try To Settle POSH Act Case: Madhya Pradesh HC Allows NIT Asst Prof's Plea Against Dismissal From Service

While allowing an NIT Bhopal Assistant Professor's plea against dismissal from service who was accused of sexual harassment, the Jabalpur bench of the Madhya Pradesh High Court said that the Internal Complaints Committee can, before starting the departmental enquiry, try to "settle" the case by referring the matter to conciliation.

In doing so, the court mentioned the importance of complying with Section 10 of the The Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act (POSH) which prescribes that the Internal Committee or a Local Committee before initiating any enquiry in the matter may try to settle the dispute by referring the matter for conciliation and thereafter enquiry shall be conducted as per Section 11 of the Act.

Section 11 says that the Committee is under obligation to make an attempt to settle the matter by way of conciliation and if it fails then only then matter has to be enquired into as per Service Rules. The court found that both these provisions had been violated.

With respect to non compliance of Section 10 and 11 of POSH Act in the matter, Justice Sanjay Dwivedi in its order said, "Section 10 of the Act, 2013 provides as to in what manner complaint made by the aggrieved woman has to be dealt with. Section 10 prescribes that the Internal Committee or a Local Committee before initiating any enquiry in the matter may try to settle the dispute by referring the matter for conciliation and thereafter enquiry shall be conducted as per Section 11 of the Act, 2013The language used in the aforesaid provision makes it clear that the Committee is under obligation to make an attempt to settle the matter by way of conciliation and if it fails then only the matter has to be enquired into as per Service Rules. There is a complete violation of the provision of Sections 10 and 11 of the Act, 2013".

Meanwhile terming the department enquiry carried out in the matter as an "eyewash", the court found that nothing was produced to ascertain whether the statement of complainants was recorded during the course of enquiry or not, nor was an opportunity to cross-examine them was given, rendering the procedure adopted by the respondents contrary to law. It said:

“It is clear that no procedure was followed by the respondents as provided under Rule 14 of Rules of 1965…the enquiry is nothing but an eye wash because the same was conducted without following any procedure which had to be mandatorily followed. The witnesses did not physically appear before the Enquiry Officer and no opportunity to cross-examine those witnesses is given to the delinquent, despite that, their statements taken otherwise, such an enquiry is no enquiry in the eyes of law and it is in clear violation of principles of natural justice…from the very inception respondents have not followed any valid procedure for conducting the enquiry or the requirement of provisions of the Act of 2013.”

Background

The petitioner was working as Assistant Professor in the Department of Materials and Metallurgical Engineering of Maulana Azad National Institute of Technology Bhopal. As per the petitioner, the Respondent No.3, who is the senior most faculty in the Institution had some personal issues with the petitioner and had conspired against the petitioner to get false complaints filed against him. The petitioner was dismissed from service by way of punishment passed in a departmental enquiry. He then moved a writ petition challenging the termination order on the ground of procedural lapses in conducting enquiry and violation of principles of natural justice.

Petitioner's Arguments

The counsel for petitioner asserted that instead of referring the matter to the Internal Complaint Committee (ICC), it was referred to respondent No.4 who was Respondent No. 3's female friend who was not an ICC member. It was contended that this in turn disclosed to her about the petitioner's conduct is a violation Section 16 POSH Act.

Moreover, respondent No.4 along with some female students met Respondent No. 5, the then ICC Chairman to convince her about the complaints made against the petitioner which was clearly against the provisions of the POSH Act as per which the complaint should be made at least before minimum three Members Committee. It is also alleged that constitution of ICC was not as per the requirement of the POSH Act or as per the “University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015; but despite that, disciplinary action was proposed against the petitioner.

In violation of the provisions of the Act and Rules of 2013, the respondents No.3 to 5 made complaints to the Committee of the Institution and requested an enquiry about the conduct of the petitioner relating to sexual harassment of female students. Thereafter, a notice was issued to the petitioner by the respondent No.5 asking him to attend the meeting of ICC on the same day. Although, petitioner had submitted reply to the ICC but they needed the reply in a specific format within four hours. Since the petitioner was very busy, he was not able to file the reply in such a short time. Although, when it was submitted, the Respondent No. 5, did not accept it and passed an ex parte order. Thus, it is contended that the said report was prepared in complete violation of provisions of the Act and Rules of 2013 and also in violation of principles of natural justice.

The counsel further submitted that as per Section 11 of POSH Act, the allegations made in the complaints are required to be investigated and enquired about as per the provisions of Service Rules applicable to the Respondent-Institution i.e. Central Civil Services (Conduct) Rules, 1964 and also Central Civil Services (Classification, Control & Appeal) Rules, 1965.

Although petitioner made a request to the respondent No.2 i.e. Director of the Institution for revocation of his order of suspension, but that request was turned down. The Complaints' Committee established in each University or Department is authorized to be the Enquiring Authority appointed by the Disciplinary Authority and if there is no specific procedure, then the said Committee is bound to conduct the enquiry in accordance with the procedure laid down in Rule 14 of the 1965 Rules. Thus, there has been a complete violation of procedure prescribed while conducting enquiry against the petitioner. Neither any evidence was adduced nor any opportunity was granted to him to cross examine the witnesses.

Respondents' Arguments

The counsel for respondents argued that the present petition was barred by Section 29 of the National Institute of Technology Act, 2007 which provides that any dispute arising out of a contract between an Institute and any of its employees shall, at the request of the employee concerned or at the instance of the Institute be referred to a Tribunal of Arbitration.

It further provides that the decision of the Tribunal shall be final and shall not be questioned in any Court but instead of doing so, the petitioner has directly approached the high court in a writ petition. Further, the High Court cannot act as an appellate authority and cannot reassess the evidence in a matter of domestic enquiry since the scope of interest by the court is not available, therefore the petition is not maintainable.

The respondents asserted that the enquiry had been conducted in accordance with the procedure prescribed. They stated that statement of witnesses clearly demonstrate that the charges levelled against the petitioner are found proved and therefore punishment imposed against the petitioner cannot be said to be excessive.

Findings

Responding to the contention of maintainability of the writ petition, the court said that alternative remedy could have been availed by the petitioner but under the existing circumstances when enquiry and punishment made were in clear violation of principles of natural justice, then alternative remedy is not a remedy which was to be followed mandatorily prior to approaching the Court. Therefore, Section 29 of the Act of 2007 does not preclude the petitioner from availing remedy available under Article 226 of the Constitution of India.

It said, "...it is clear that it is the choice of the employee to avail the forum of Arbitration, but it does not mean that in every dispute between the employee and the Institute, such a remedy of Arbitration has to be availed. If this Court find substance in the submission so advanced by counsel for the petitioner in respect of violation of principles of natural justice, then it will consider whether petition is maintainable or not, but so far as Section 29 of the Act, 2007 is concerned, I am of the opinion, it does not preclude the petitioner from availing remedy available under Article 226 of the Constitution of India because it is the choice of an employee to refer a dispute to the Arbitration Tribunal, if he/she so desires and as is clear from the record that the petitioner being an employee has not made any request to refer the dispute to the Arbitration Tribunal and under such circumstances, it would not come in his way to file a petition under Article 226 of the Constitution of India".

Further, the court mentioned that Section 9 of the POSH Act clearly provides that the complaint should be made within a period of three months from the date of last instance that too by the aggrieved woman. However, in the present case the complaint was made beyond the period of three months from the date of the incident.

The court further observed that even after directing the respondents to produce the order-sheets of enquiry, they failed to show as to how and when opportunity was provided to the petitioner to cross-examine the complainants. Nothing was produced to ascertain whether the statement of complainants was recorded during the course of enquiry or not. Therefore, in absence of any statement of witnesses or an opportunity to cross-examine them, the procedure adopted by the respondents is contrary to law. Thus, the court concluded that the respondents have not followed the principles of natural justice to ascertain that the charges levelled against the petitioner are found proved.

“The manner in which the enquiry was conducted and the procedure adopted by the respondents are unacceptable and contrary to law. Only on the basis of complaint made and reply submitted by the respondents, the finding given by the Enquiry Committee cannot be given a seal of approval to prove the charges levelled against the delinquent.”, the Court said.

Thus, the present petition was allowed.

Case Title: Dr. Kali Charna Sabat Vs. U.O.I. Through National Institute Of Technology & Others

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