Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: July 11, 2017
Judgment delivered on: July 31, 2017
+ W.P.(C) 3705/2002
PROF. S.P. NARANG
..... Petitioner
Through: Mr. R.K. Saini, Ms. Minal Sehgal
and Mr. Varun Nagrath, Advs.
Versus
UNIVESITY OF DELHI
..... Respondent
Through: Mr. Amit Bansal and Ms. Seema
Dolo, Advs.
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
J U D G M E N T
V. KAMESWAR RAO, J
1. The present petition has been filed by the petitioner challenging the order dated
th
4 March, 2002 passed by the Executive Council of the respondent University whereby
he has been disengaged from the services of the University.
2. Some of the facts are, the petitioner was appointed as Lecturer in Sanskrit in the
Department of Post-graduate (Evening Studies, University of Delhi) on October 10,
1970, and thereafter as the Head of the Department in July, 1996. It is the case of the
petitioner and also contended by Mr. R.K. Saini, learned counsel for the petitioner that
as a Head of the Department, the petitioner was required to supervise the research work
and performance of Research Scientists under the Research Fellow Scheme of the
University Grants Commission. Two Research Scientists came under his supervision.
W.P.(C) No. 3705/2002 Page 1 of 14
Mr. Saini states that the said Scientists were not amenable to discipline. They started
making complaints to the higher authorities and other forums. They never maintained
leave and other records properly during the petitioner’s sabbatical leave for visit to
USA. The petitioner’s signatures were forged by these Scientists in connivance with the
Head of the Department and Clerks. The said Scientists instead of mending their ways
were bent upon creating trouble to the petitioner and wanted to get rid of him and in this
regard they invented a method of taking revenge against the petitioner under the garb of
sexual harassment. In November, 1997, they managed a pseudonyms complaint
purported to have been written by one Dr. D.K. Pal wherein the allegations of sexual
harassment were leveled against the petitioner. The petitioner submitted his observation
on the said complaint. It is his submission that they also made a complaint to the Vice
Chancellor, Pro-Vice-Chancellor and National Commission for Women in regard to
their alleged harassment by the petitioner which was subsequently given the colour of
sexual harassment. Mr. Saini states that an Enquiry Committee was constituted by the
Vice-Chancellor to investigate the allegations of sexual harassment. However, the
petitioner was not informed about the constitution of the same. That apart, he states that
no chargesheet was issued to the petitioner nor his explanation was called for. Further,
neither the list of witnesses nor list of documents were provided to the petitioner despite
repeated requests by him. He states that the Committee constituted by the Vice-
Chancellor was performing the dual role of a Judge and a Prosecutor. In substance, it is
the submission of Mr. Saini by drawing my attention to Ordinance 11 (6) that the
procedure which has been laid down for conducting enquiry has been violated. The
W.P.(C) No. 3705/2002 Page 2 of 14
petitioner had asked the Enquiry Committee time again about the charges against him;
the procedure to be followed by the Committee during enquiry; cross-examination of
the witnesses by him; documents required by him for his defence; statement of the
witnesses. Mr. Saini’s submission is that the petitioner was informed by the Committee
that there is no scope of cross-examination either of the complainants or of the
witnesses. He was not allowed to be present when the prosecution witnesses gave their
statements and deposed before the said Committee. That apart it is his submission that
the Executive Council has also without giving him a copy of the report of the Enquiry
Committee had considered the same and passed the impugned order. That apart the
impugned order is an unreasoned order. In other words, the submission of Mr. Saini is
that the impugned order has been passed in flagrant violation of the principles of natural
justice which resulted in the petitioner getting disengaged prematurely, which has put a
stigma on the character of the petitioner. In this regard, he also states that the Supreme
Court in its landmark judgment of Vishaka & Ors. v. State of Rajasthan & Ors., 1997
(6) SCC 241 has nowhere held that enquiry should not be conducted or that no
procedure should be followed by the Committee; i.e., the Committee should not follow
the principles of natural justice. He has drawn my attention to the Enquiry Committee
report to contend that the conclusion therein is perverse and the Committee on its own
concluded that the complaints made by the two Researchers did not explicitly name the
harassment as sexual harassment, as they wanted to use decent words in their
complaints. In other words, it is his submission that the said Researchers had improved
their case while giving statements before the Committee which otherwise they had not
W.P.(C) No. 3705/2002 Page 3 of 14
pleaded in their complaints. He reiterates that these statements were never given to the
petitioner nor these statements were recorded during his presence apart from denying
the right of cross-examination. He relies upon the definition of “harassment” to
contend that every harassment need not be a sexual harassment. He, in this regard
relied upon the definition in the Black’s Law Dictionary to contend that sexual
harassment is a type of employment discrimination including sexual advances, request
for sexual favours and other verbal or physical conduct of a sexual nature, which have
not been alleged against the petitioner by the said Researchers in their complaints. He
would rely upon the judgment of this court in the case of Balvir Singh v. Union of
st
India and Ors. W.P.(C) 8321/2015 decided on 31 August, 2015 to contend that this
Court has held that even in case of sexual harassment, the enquiry has to be conducted
in good faith after giving fair opportunity to both the sides.
3. On other hand, Mr. Amit Bansal, learned counsel appearing for the respondent
would justify the impugned action. He states that all procedures have been followed as
per rules and principles of natural justice. According to him, the petitioner was duly
informed about the appointment of the Enquiry Committee to investigate the complaints
of sexual harassment against him which was in accordance with the judgment of the
Supreme Court in Visakha’s case (supra). The petitioner did not question the
constitution of the committee. The Committee had provided to the petitioner the copies
of the complaints made by the two Researchers, (Annexure P-3). He also states that the
allegations made in those complaints are the charges against the petitioner enquired by
the Enquiry Committee. According to him, during the course of the enquiry, the
W.P.(C) No. 3705/2002 Page 4 of 14
statements of both the complainants and the petitioner were recorded and tape recorded
statements of the complainants reduced to writing were made available to the petitioner.
rd th
He appeared before the Enquiry Committee on 23 May, 2001 and 25 May, 2001 and
made statements in defence which was also tape recorded. The tape recorded statement
was transcribed and sent to him for correction and his signatures. The Enquiry
Committee submitted its report to the Vice- Chancellor on December 3, 2001 wherein it
had found the petitioner guilty of administrative and sexual harassment of the two
Research Scientists. Since the Enquiry Committee clearly established the sexual nature
of harassment, the Executive Council came to an unanimous conclusion that the
services of the petitioner be disengaged on the ground of misconduct. He also states
since the services of the petitioner were terminated on the ground of misconduct, there
was no requirement for giving any notice or three month’s pay in lieu thereof. He states
a sympathetic view has been taken and the petitioner has been given his retirement
benefits. He would rely upon the following judgments, which are reported as:
1. (1999) 1 SCC 759, Apparel Export Promotion Council v.
A.K. Chopra.
2. (1996) 3 SCC 364 State Bank of Patiala and Ors. V. S.K.
Sharma
3. AIR 1973 SC 1260 Hira Nath Mishra and Ors. V. the
Principal, Rajendra Medical College, Ranchi and Anr.
He also placed before me the judgment of this Court reported as 2009 VI AD
(Delhi) 1 Bidyut Chakraborty (Prof.) V. Delhi University and Ors. to state this Court
has laid down the parameters and has interpreted the provisions of Ordinance 15 of the
W.P.(C) No. 3705/2002 Page 5 of 14
Delhi University Ordinance.
4. I may state here, Mr. Bansal, during his submissions did concede to the fact that
the cross-examination of the complainants by the petitioner was not allowed nor the
copy of the Enquiry Committee report was given to him. He also states that if this court
finally is of the view that principles of natural justice have been violated, then the
respondent be given an opportunity, by remanding the matter back to the Enquiry
Committee for fresh enquiry from the stage the infirmity has occurred. He also
concedes to the fact that the University has framed the rules in conformity with the
directions of the Supreme Court in Visakha’s case (supra) for conducting enquiry on
th
the allegations of sexual harassment only on 30 September, 2003. He also concedes to
the fact that when the enquiry was conducted by the Enquiry Committee, it is the
Ordinance 11(6) which was in place.
5. Having heard the learned counsel for the parties, it is a conceded position that
during the time when the enquiry was conducted by the Enquiry Committee, there were
no rules framed by the University for enquiring into the allegations of sexual
harassment. Ordinance 11 (6) and 11 (7) on which heavy reliance has been placed by
Mr. Saini stipulates as under:
“6. (1) Notwithstanding anything hereinbefore contained,
the Executive Council of the University shall be entitled
summarily to determine the engagement of the teacher on the
ground of misconduct in accordance with the provisions
hereinafter set forth.
(2) The Vice-Chancellor may, when he deems it necessary,
suspended the teacher on the ground of misconduct. When he
suspends the teacher, he shall report it to the next meeting of the
W.P.(C) No. 3705/2002 Page 6 of 14
Executive Council.
(3) The Executive Council shall investigate all matters
reported to it by the Vice-Chancellor about the misconduct of the
teacher whether he has been suspended or not. The Executive
Council may appoint a Committee for the purpose. The teacher
shall be notified in writing of the charges against him and shall
be given not less than three weeks’ time to submit his explanation
in writing.
The Executive Council or the Committee may hear the
teacher and take such evidence as it may consider necessary.
The Executive Council may determine the engagement of the
teacher where it deems that the misconduct of the teacher
deserves to be dealt within that manner, after it has considered
the explanation and the evidence, if any, and / or the report of
the Committee, if one has been appointed.
(4) Where the termination of the service on the ground of
misconduct is after suspension by the Vice-Chancellor as
aforesaid, the termination of service may be from the date of
suspension, if the Executive Council so directs.
7. The engagement under these provisions, shall not, save as
aforesaid be determined by the Executive Council except by a
resolution passed by a vote of not less than a two-thirds majority
of the members present at the meeting, provided that the two
thirds majority is not less than half the total number of members
of the Executive Council. The resolution shall state the reasons
for the termination. Before a resolution, under this clause is
passed the Executive Council shall give notice to the teacher of
the proposal to determine the engagement and not less than three
weeks’ time to make such representation as the teacher may like
to make. Every resolution terminating the service under this
clause shall be passed only after consideration of the
representation, if any, of the teacher. The teacher whose services
are terminated under this clause shall be given not less than
three months’ notice from the date on which he is notified of the
resolution of the termination of service or not less than three
months’ salary in lieu of notice.
Perusal of the provisions of Ordinance 11(6), which were in force on the date of
W.P.(C) No. 3705/2002 Page 7 of 14
Enquiry, does stipulate, a teacher shall be notified in writing of the charges against him.
No doubt, copies of the complaints made by the two Researchers, were given to the
petitioner but that would not take the place definite charges to be notified to a Teacher,
in view of the Rule position noted above. That apart, the submission of Mr. Saini that
the petitioner was not given the right of cross-examination is also appealing. That apart
non-supply of the copy of the report of the Enquiry Committee to enable the petitioner
make representation is also an infirmity which surely reflects the denial of reasonable
opportunity to the petitioner, which vitiate the conclusion of the Enquiry Committee and
the impugned order herein. In this regard, I may only point out the judgment of this
Court in the case of Balvir Singh (supra) wherein this Court in Para 19 has held as
under:
“19. In the cases of sexual harassment, in our view, while
conducting enquiry, no strait jacket formula can be applied and
what has to be kept in mind is that the enquiry is conducted in
good faith and after giving fair opportunity to both the sides as in
the facts of Hira Nath Mishra and Others (supra), a case which
relate to a girl of a hostel, the parameters to be applied for and
the safeguards would be completely different to a case, as the
present case, where the victim also belongs to a disciplined force
that is the Delhi Armed Police, Fourth Battalion.”
6. I may state here the reliance placed by Mr. Bansal on the judgment of the
Supreme Court in Hira Nath Mishra and Ors. (supra) has also been considered and
dealt with by the Division Bench of this Court in Balvir Singh (supra) by holding in
that case the requirement of principles of natural justice were fulfilled. The infirmities
as pointed out by Mr. Saini does not require a deeper analysis in view of the judgment
of this Court in the case of Bidyut Chakraborty (Supra), which according to me is
W.P.(C) No. 3705/2002 Page 8 of 14
conclusive. In the said case this court was concerned with the provisions of Ordinance
XV(D) which had been notified by the University by that time. This Court in Para 8 to
17 has held as under:
“8. Admittedly, annexures/appendices to the inquiry report were
not supplied to the petitioner, by the committee. Supplying copy
of the inquiry report, without supplying copies of all its
annexures/appendices does not serve the desired purposes and
does not fulfil the legal obligation of the Disciplinary Authority
in this regard. The annexures/appendices constitute an integral
part of the Enquiry Report and cannot be separated from it.
Supply of enquiry report without supplying all its annexures /
appendices would therefore amount to not supplying the copy of
the Enquiry Report itself.
9. Mere supply of the report is meaningless unless the delinquent
is given an opportunity to make representation against it and if
made, such a representation is considered by the Disciplinary
Authority before recording its findings. Had the Disciplinary
Authority given such an opportunity to the petitioner, he had a
right to represent that he was not guilty of the charges and that
the findings recorded against him were wrong. The object is to
enable the employee to satisfy the Disciplinary Authority that he
is innocent of the charges framed against him. (Emphasis
supplied)
10. It is true that Ordinance XV-D does not contain any
provision identical to sub rule (2) and (2-A) of Rule 15 of
CCS/CCA Rules, but, in keeping with the requirements of
principles of natural justice, this court has to necessarily read
such an obligation on the part of the Disciplinary Authority. If
such an obligation is not read into the Ordinance, it may be
liable to be struck down, being violative of the principles of
natural justice.
11. As held by Hon’ble Supreme Court in A.K.Kraipak & Others
Vs. UOI & Ors; AIR 1970 SC 150 ; through rules of natural
justice are not embodied rules, their aim is to secure justice and
prevent miscarriage of justice and therefore, there was no reason
why they should not be made applicable to administrative
proceedings. It was also noted that an unjust decision in an
administrative inquiry may have a far more reaching effect than
W.P.(C) No. 3705/2002 Page 9 of 14
a decision in a quasi judicial inquiry.
12. The findings recorded by the Enquiry Officer forms an
important material before the Disciplinary Authority which along
with the evidence recorded during the inquiry is taken into
consideration by it to come to its conclusion. In a given case the
Enquiry Officer may have recorded its findings without
considering the relevant evidence on record or by mis construing
it or the findings may not be supported by any evidence available
on record. The principles of natural justice, therefore, require
that the delinquent should get a fair opportunity to meet, explain
and controvert the findings recorded by the Enquiry Officer.
13. The Hon’ble Supreme Court in Managing Director, ECIL
Vs. B. Karunakar case; AIR 1994 SC 1074 inter alia observed
as under : “It is the negation of the tenets of justice and a denial
of fair opportunity to the employee to consider the findings
recorded by a third party like the Inquiry Officer without giving
the employee an opportunity to reply to it.”
………Both the dictates of the reasonable opportunity as
well as the principles of natural justice, therefore, require that
before the disciplinary authority comes to its own conclusions,
the delinquent employee should have an opportunity to reply to
the Inquiry Officer’s findings. The disciplinary authority is then
required to consider the evidence, the report of the Inquiry
Officer and the representation of the employee against it……..
……The employee’s right to receive the report is thus, a
part of the reasonable opportunity of defending himself in the
first stage of the inquiry. If this right is denied to him, he is in
effect denied the right to defend himself and to prove his
innocence in the disciplinary proceedings…...
…….Since the penalty is to be proposed after the Inquiry,
which inquiry in effect is to be carried out by the disciplinary
authority (the Inquiry Officer being only his delegate appointed
to hold the inquiry and to assist him), the employee’s reply to the
Inquiry Officer’s report and consideration of such reply by the
disciplinary authority also constitute an integral part of such
inquiry…….
Therefore right to make representation to the Disciplinary
Authority against the findings recorded by the Enquiry Officer is
an integral part of the opportunity to defend against the charges
and if such an opportunity is denied, it will amount to breach of
W.P.(C) No. 3705/2002 Page 10 of 14
principles of natural justice.
14. As noted earlier, no opportunity was given to the petitioner
for verbal cross examination of the complainant. A perusal of the
inquiry report shows that the committee informed the petitioner
that he could cross examine the complainant by giving written
questions to the committee. In our opinion, mere permission to
give written questions to the committee for cross examination of
the complainant does not fulfil the legal requirement on the part
of the Inquiring Authority, to give opportunity to the delinquent
to cross examine her. Cross examination by giving written
questions to the inquiring authority can never be as effective as
verbal cross examination and cannot be its proper substitute.
While putting questions to a witness the examiner does not know
what answer the witness would give to the questions put to
him/her. It is, therefore, not possible for him to formulate the
next question without taking into consideration the answer given
by the witness. The answer given by the witness to one question
may lead to further questions from the examiner on the same
line, in order to elicit truth from the witness and to impeach
his/her trustworthiness. Moreover, asking the petitioner to give
written questions for cross examination was confined in respect
of the complainant alone. No opportunity was given to the
petitioner even to give written questions for cross examination of
other witnesses examined by the committee. It was imperative on
the part of the Inquiring Authority to give opportunity to the
petitioner for her cross examination not only of the complainant
but also of the other witnesses examined by it. Denial of
opportunity to cross examine the complainant and other
witnesses examined by the committee constitutes gross violation
of principles of natural justice. (Emphasis supplied)
15. Rule 14 (16) of CCS/ CCA rules mandates the Disciplinary
Authority to ask the delinquent to state his defence which is to be
recorded unless it is a written statement. Clause 17 of this rule
requires the Inquiring Authority to then call upon the delinquent
to produce his evidence. He may, if he chooses so, examine
himself in his defence. In the present case, though at the time of
serving charge sheet upon the petitioner, the committee asked
him to give list of witnesses whom he wanted to be examined by
the committee, no such opportunity was given to him after the
committee had examined the complainant and other witnesses in
support of the complaint. The committee was required not only to
give an opportunity to the petitioner to produce his witnesses but
those witnesses were to be cross examined by the petitioner and
W.P.(C) No. 3705/2002 Page 11 of 14
not by the committee, though, it would have been open to the
committee to examine them after they had been examined by the
petitioner and had also been subjected to cross examination.
16. It is true that Ordinance XV-D which prescribes the
procedure for inquiry does not contain provisions identical to
Clause (16) & (17) of Rule 14 of CCS/CCA Rules. But, since the
Hon’ble Supreme Court has held in the case of Megha Kotwal
Lele and Ors. Vs. UOI and Ors (Supra) that the Complaints
committee envisaged by it in its judgement in Vishaka’s case will
be deemed to be an Inquiry Authority for the purposes of
CCS/CCA Rules, 1964 and the report of the complaints
committee shall be deemed to be an inquiry report under the CCS
rules. We feel, that it was obligatory on the part of the Apex
Committee, which inquired into the matter, to at least follow the
fundamental norms for conducting inquiry. If we do not read
such a requirement to be implicit in Ordinance XV-D, it may not
be possible for us to sustain the validity of the inquiry procedure
prescribed therein. The inquiry conducted without giving an
opportunity to the delinquent to cross examine the witnesses and
without giving him an opportunity to produce witnesses in his
defence, would not confirm to the basic principles of natural
justice and a procedure which does not contain even these
minimum safeguards for the delinquent cannot be said to be a
fair and reasonable procedure for conducting an inquiry.
17. For the reasons given in the preceding paragraphs, we are of
the view that the inquiry against the petitioner was conducted in
gross violation of the principles of natural justice as neither the
petitioner was given an opportunity to cross examine the
complainant and other witnesses nor was he asked to state his
defence and produce witnesses in his defence. The findings
recorded by the Apex Committee, therefore, got vitiated on this
account alone. Disciplinary action taken against the petitioner
on the basis of the findings recorded in an inquiry which was
conducted in gross violation of principles of natural justice
cannot be sustained. Yet, another reason why the disciplinary
action taken against the petitioner cannot be maintained is that
neither annexures /appendices to the inquiry report were
supplied to him nor was he given an opportunity to make
representation against the findings recorded by the Apex
Committee.(Emphasis supplied)
W.P.(C) No. 3705/2002 Page 12 of 14
7. The aforesaid judgment of this Court covers the issue(s) which has / have been
raised by Mr. Saini in this petition inasmuch as non-supply of enquiry report and denial
of opportunity to the petitioner for verbal cross-examination of the complainants. This
Court had set aside the enquiry conducted against the petitioner in that case. Similar
th
result must follow in this case also. The impugned order dated 4 March, 2002 is set
aside.
8. The question, now, would arise is whether in view of my conclusion above, the
matter needs to be remanded back to the enquiry committee for holding enquiry from
the stage the infirmity has occurred as was contended by Mr. Bansal. This plea of
Mr. Bansal was opposed by Mr. Saini stating that the proceedings relates back to the
year 2001; 16 years have elapsed thereafter; the petitioner is of 75 years of age and the
petition was filed by the petitioner only to remove the stigma attached because of the
impugned order; and he would not press for the monetary relief for two years, till his
normal superannuation which he may get if the impugned order is quashed; this Court
on a consideration of these submissions, is of the view noting the age of the petitioner,
who is said to be of 75 years, the Researchers also have equally aged, a remand for fresh
enquiry from the stage of framing of charges; allowing cross examination of the
witnesses would be an embarrassment for the parties at this stage of their life, that apart,
the process to complete the enquiry may take some time and if an order is passed
against the petitioner, the same can be subject matter of a challenge which may take
further time for a decision; it shall be appropriate, if the matter is put at rest, but with
W.P.(C) No. 3705/2002 Page 13 of 14
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limited relief to the petitioner. I accordingly set aside the impugned order dated 4
March, 2002 by holding that the petitioner who was 60 years of age at the relevant time
and would have retired at 62 years, shall not be entitled to any arrears for the period of
two years except that the two years shall be treated as period spent on duty and the
retiral benefits shall be computed afresh and arrears thereof shall be released to the
petitioner within three months from the date of receipt of the copy of this order without
any interest.
The petition stands disposed of. No costs.
CM. NO. 6355/2002 (for Stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
JULY 31, 2017
jg
W.P.(C) No. 3705/2002 Page 14 of 14