The Committee’s Understanding of its mandate 42-44 (d) Whirlwind Proceedings 44-47 (e) How did the Executive Council Falter? 2 – Goa University as a Temporary Lecturer in the Department of Political Science, in the year 1996. The said complaints were the starting point of an inquiry initiated by the Committee on receiving complaints by the Registrar of the respondent no. The appellant furnished a detailed reply to the Committee, running into fifty-three pages wherein he raised some preliminary objections to the inquiry being conducted by the Committee, alleged a well-organized conspiracy against him by some wayward students in connivance with the members of the faculty and refuted the contents of fourteen depositions of girl students forwarded to him by the Committee. On the same day, a corrigendum was issued by the Committee to the earlier letter informing him that the next date fixed for filing his reply should be read as “12 May, 2009” instead of “12 June, 2009” and the date for further deposition should be read as “14 May, 2009” instead of “12 June, 2009”.
Vide notice dated 14 May, 2009, the Committee directed the appellant to appear before it on 19 May, 2009 for recording his deposition and for submitting his written reply to the fresh deposition of the other complainant. In its letter dated 20 May, 2009, the Committee noted that though the appellant had failed to appear before it on 19 May, 2009 for recording his further deposition, he was being granted one last opportunity to present himself on 23 May, 2009, for completing his deposition and for cross-examining the witness including the complainants. However, his request was turned down by the Committee on the very same day and the appellant was directed to remain present on 23 May, 2009, failing which, he was informed that the Committee would proceed further with the inquiry.
The appellant submitted a detailed reply to the aforesaid Memorandum, running into twenty pages and also demanded several documents and information relating to the complaints of sexual harassment made against him, on the plea that they were relevant for submitting his written statement which was turned down by the Vice Chancellor of the respondent no. On 15 October, 2009 the EC appointed a former Judge of the Bombay High Court to conduct an inquiry into the charges framed against the appellant and he was informed that the Inquiry Officer will hold a preliminary inquiry into the charges framed against him on 9 November, 2009. Describing the decision taken by the EC on 14 June, 2009 of appointing an Inquiry Officer to inquire into the charges framed against the appellant as inadvertent, the Registrar informed the appellant that the disciplinary authority will decide the further course of action against him under the extant rules. After examining his reply, the disciplinary authority dismissed the appellant from service vide order dated 10 May, 2010. It was also held that the Committee was justified in discarding the medical certificates submitted by the appellant as he kept on making flimsy excuses to stay away from the enquiry proceedings. The main thrust of his arguments is that the dismissal order passed by the Disciplinary Authority and upheld by the Appellate Authority is based solely on the Report submitted by the Committee which was nothing more than a fact-finding proceeding that had commenced on 17 March, 2009 and concluded on 5 June, 2009; that though the inquiry had purportedly commenced on 17 March, 2009, the first hearing had actually taken place only on 27 April, 2009 and the entire proceedings were hurriedly closed within a span of thirty-nine days, by relying on forty-eight documents and forty-three depositions in the course of eighteen meetings without affording the appellant adequate opportunity to defend himself and present his case. Tulsiram Patel, learned Senior counsel argued that none of the three clauses to the second proviso to Article 311(2) of the Constitution of India that mandates that no person employed by the Union or the State shall be dismissed or removed from the service except after an inquiry, could have been resorted to by the respondents for having elected not to conduct a proper inquiry before proceeding to dismiss the appellant. Indian Institute of Science represented by Chairman and Others to urge that the Report of the Committee could not be equated with the report of an Inquiry officer, as contemplated in the procedure prescribed in Rule 14 of the CCS (CCA) Rules.
Learned counsel further argued that none of the three clauses appended to the second proviso of Article 311(2) of the Constitution of India have been pressed against the appellant to justify the impracticability of holding a proper inquiry and that failure on the part of the Committee to follow the procedure as prescribed in the CCS (CCA) Rules itself vitiates the entire proceedings. To substantiate this submission, she referred to the preliminary objections taken by the appellant in his letter dated 18 April, 2009 where he had raised five preliminary objections relating to the reconstitution of the Committee and its composition, the prejudice allegedly harboured against him by two members of the Committee and the fact that he was denied access to the records sought by him. Only after the appellant failed to turn up and made flimsy excuses of indisposition and repeatedly sought adjournments, did the Committee proceed ex parte against him and submitted its Report to the Registrar on 5 June, 2009. 2 and 3 went on to state that the Committee had afforded adequate opportunities to the appellant to cross-examine the witnesses, produce his witnesses and complete his own deposition but he kept on delaying the proceedings under one pretext or the other. State Bank of India and Others to argue that principles of natural justice is not an inflexible doctrine and the facts and circumstances of each case have to be examined to see whether the requirements of natural justice stand satisfied.
Explaining the decision of the respondent no.2 – University to terminate the subsequently constituted inquiry proceedings against the appellant by virtue of the Memorandum dated 8 September, 2009, learned counsel alluded to the order dated 26 April, 2004, passed by this Court in Medha Kotwal’s case (supra), which had clarified that the Complaints Committee as contemplated in Vishaka and Others v. Therefore, this was not a case of “no opportunity” or “no hearing” but a case of “adequate opportunity” and “fair hearing” afforded to the appellant before imposing a major penalty of dismissal from service on him, as specified in Section 11 (9) of the CCS (CCA) Rules. Article 309 of the Constitution that provides for recruitment and conditions of service of persons serving the Union or a State, Article 310 that refers to the tenure of office of persons serving the Union or a State and Article 311 that deals with dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State are inter-linked and “form an integrated whole, there being an organic and thematic unity running through them”. It has further been held that any Act or Rule that violates the rights guaranteed to a government servant under Article 311, would be void. This Court has held that in matters of dismissal, removal or reduction in rank of public servants, Article 311 of the Constitution is a manifestation of the essential principles of natural justice.
At the same time, being mindful of the very same public interest and public good which does not permit that Government servants found to be corrupt, dishonest or inefficient be continued in service, a remedy is provided under the second proviso to Clause (2) of Article 311 whereunder their services can be dispensed with, without conducting a disciplinary inquiry. Article 14, often described as the ‘Constitutional Guardian’ of the principles of natural justice, expressly forbids the State, as defined in Article 12, from denying to any person, equality before the law or equal protection of the laws. THE TWIN ANCHORS : NEMO JUDEX IN CAUSA SUA AND AUDI ALTERAM PARTEM 36.
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The twin anchors on which the principles of natural justice rest in the judicial process, whether quasi-judicial or administrative in nature, are Nemo Judex In Causa Sua, i.e., no person shall be a judge in his own cause as justice should not only be done, but should manifestly be seen to be done and Audi Alteram Partem, i.e. Quoting the audi alteram partem rule and equating it with “fair play in action”, Justice P.N. Duke of Norfolk that “whatever standard of natural justice is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case”.
State of Madras, this Court went on to hold in Maneka Gandhi’s case (supra) that the procedure required to be prescribed under Article 21 must include four essentials namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. …… It is now well settled that the ‘audi alteram partem’ rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. The provisions of a statute, regulations or rules that empower an employer or the management to dismiss, remove or reduce in rank of an employee, must be consistent with just, reasonable and fair procedure. In other words an employee in a public employment also must not be arbitrarily, unjustly and unreasonably be deprived of his/her livelihood which is ensured in continued employment till it is terminated in accordance with just, fair and reasonable procedure. The judgment of this Court in Maneka Gandhi (supra) spearheaded two doctrinal shifts on procedural fairness because of the constitutionalising of natural justice. Instead, the courts would have to decide if the procedure that was followed infringed upon the right to a fair and reasonable procedure, independent of the outcome. Responding to the argument that the principles of natural justice are not static but are capable of being moulded to the circumstances, it was held that the core of natural justice guarantees a reasonable procedure which is a constitutional requirement entrenched in Articles 14, 19 and 21. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. , this Court declared that even if a Statute is silent and there are no positive words in the Act or the Rules made thereunder, principles of natural justice must be observed. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14: therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of State in Article 12, is charged with the duty of deciding a matter. If we look at clause (2) of Article 311 in the light of what is stated above, it will be apparent that that clause is merely an express statement of the audi alteram partem rule which is implicitly made part of the guarantee contained in Article 14 as a result of the interpretation placed upon that article by recent decisions of this Court. Where authority functions under a statute and the statute provides for the observance of the principles of natural justice in a particular manner, natural justice will have to be observed in that manner and in no other. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice. SC-6(i) of the Statute contemplates as follows– “For disciplinary and departmental action, the teachers shall be governed under the CCS (CCA) Rules, 1965, Fundamental Rules and Supplementary Rules as applicable to the employees of the Goa Government”. Prohibition of sexual harassment of working women (1) No Government servant shall indulge in any act of sexual harassment of any women at any work place. Procedure for imposing major penalties (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act. As can be seen from the above, when the misconduct relates to a complaint of sexual harassment at the work place, the Complaints Committee constituted by the respondent no.2-University to examine such a complaint, dons the mantle of the inquiring authority and is expected to conduct an inquiry in accordance with the procedure prescribed in the rules, as far as may be practicable. The use of the expression “as far as is practicable” indicates a play in the joints available to the Complaints Committee to adopt a fair procedure that is feasible and elastic for conducting an inquiry in a sensitive matter like sexual harassment at the workplace, without compromising on the principles of natural justice. Noting the absence of any Statute enacted to provide for effective enforcement of the basic human right of gender equality and guarantee against sexual abuse, particularly against sexual harassment at work places, the Court drew strength from several provisions of the Constitution of India including Article 15, Article 42 and Article 51(A) and with the aid of the relevant International Conventions and norms including the General Recommendations of the CEDAW that had passed a Resolution on 25 June, 1993, resolving that an effective complaint mechanism be put in place to address sexual harassment in the work place, laid down a set of Guidelines and norms with a direction that they would be strictly adhered to at all work places and shall be binding and enforceable in law till the vacuum was filled and a legislation was enacted to occupy the field.
Union of India and Others (supra) where a grievance was raised by several petitioners that the Complaints Committees directed to be constituted in terms of the Guidelines laid down by this Court, had not been established to deal with cases of sexual harassment. Treating the said petition as a Public Interest Litigation, notices were issued to several parties including the Union of India and the State Governments and the following directions were issued : “2……“Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka case SCC at para 53, will be deemed to be an inquiry authority for the purposes of the 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. The Chief Secretaries of each State shall see that an officer is appointed as a nodal agent to collect the details and to give suitable directions whenever necessary. On examining the position regarding amendments required to be carried out in the CCS(CCA) Rules and the Standing Orders as also the establishment and composition of the Complaints Committees, the Court noted with great dismay that several State Governments had failed to make compliances. The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules (by whatever name these Rules are called) shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Services Conduct Rules. Those States and/or Union Territories which have formed only one committee for the entire State shall now form adequate number of Complaints Committees within two months from today.
Similarly, the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and other statutory institutes shall ensure that the organisations, bodies, associations, institutions and persons registered/affiliated with them follow the guidelines laid down by Vishaka. On receipt of any complaint of sexual harassment at any of the places referred to above the same shall be dealt with by the statutory bodies in accordance with Vishaka and Others v. Accompanying the Act are the Rules, 2013 that have been framed in exercise of powers conferred under Section 29 of the PoSH Act and amongst others, lays down the manner in which an inquiry into a complaint of sexual harassment ought to be conducted (Rule 7), the interim reliefs that can be extended to the aggrieved women during the pendency of the inquiry (Rule 8), the manner of taking action for sexual harassment (Rule 9) etc.
The cardinal principle required to be borne in mind is that the person accused of misconduct must be informed of the case, must be supplied the evidence in support thereof and be given a reasonable opportunity to present his version before any adverse decision is taken. Wherever the rules are silent, principles of natural justice must be read into them and a hearing be afforded to the person who is proposed to be punished with a major penalty. In other words, in exercise of powers of judicial review, the High Court does not sit as an Appellate Authority over the factual findings recorded in the departmental proceedings as long as those findings are reasonably supported by evidence and have been arrived at through proceedings that cannot be faulted on account of procedural illegalities or irregularities that may have vitiated the process by which the decision was arrived at. Chopra, a matter related to sexual harassment at the workplace where, aggrieved by the decision taken by the Disciplinary Authority of accepting the report of the Inquiry Officer and removing the respondent therein from service on the ground that he had tried to molest a lady employee, this Court had set aside the order of the High Court that had narrowly interpreted the expression “sexual harassment” and held that in departmental proceedings, the Disciplinary Authority is the sole judge of facts and once findings of fact, based on appreciation of evidence are recorded, the High Court in its writ jurisdiction should not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable.
Assuming as correct, the submission made by learned counsel for the respondents no.2 and 3 that the Committee was not bound to strictly follow a step by step procedure for conducting an inquiry having due regard to the proviso to Rule 14(2) of the CCS (CCA) Rules that permits a Committee to enquire into a complaint of sexual harassment ‘as far as practicable ’, in accordance with the procedure laid down in the Rules, the question that would still beg an answer is whether the inquiry conducted by the Committee in the instant case, would meet the ‘ as far as practicable ’ norm? Furthermore, on perusing the Report submitted by the Committee, it transpires that depositions of some of the complainants were recorded audio- visually by the Committee, wherever consent was given and the appellant was duly afforded an opportunity to cross-examine the said witnesses including the complainants. At the same time, copies of all the complaints received and the statements recorded were forwarded directly to the appellant calling upon him to explain the charges levelled against him. The impression carried by the Committee that it was only required to submit a fact- finding report to the University was no different for the EC as is borne out from a perusal of the Memorandum dated 8 September 2009, issued by the Chairman of the EC who, after receiving the Committee’s Report, informed the appellant that an inquiry was proposed to be conducted against him under Rule 14 of the CCS (CCA) Rules. On examining the records, it emerges that the point at which the Committee fell into an error was when it attempted to fast forward the entire proceedings after the first few hearings and declined to grant a reasonable time to the appellant to effectively participate in the said proceedings. Surprisingly, on the very next day, the Committee issued yet another letter advancing the said dates by claiming that an error had crept into the previous letter and informing the appellant that the date for filing his reply should be read as ‘12 May 2009’ and the date for recording further depositions should be read as ‘14 May, 2009’, thus moving the dates back by a whole month. Another egregious example of the hurry and scurry shown by the Committee can be gathered from the fact that on 20 May 2009, the Committee had written to the appellant giving him a last opportunity to present himself on 20 May 2009, not only to complete his deposition, but also to cross- examine the complainants and other witnesses.
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The silence in the Guidelines on this aspect could not have given a handle to the Committee to bypass the principles of natural justice and whittle down a reasonable opportunity of affording a fair hearing to the appellant.
It is apparent that the EC continued to remain under an impression that the First Committee to which the complaints were forwarded, was only a ‘fact-finding Committee’ and that a full-fledged inquiry was still required to be conducted subsequently, in the manner prescribed under Rule 14 of the CCS (CCA) Rules. 2 and 3 got wiser only when the said proceedings commenced and the Inquiry Officer was appraised of the directions issued in Medha Kotwal’s case where it had been clarified by this Court that the Complaints Committee contemplated in Vishaka’s case (supra), will be deemed to be an Inquiry Authority for the purposes of the CCS (Conduct) Rules and its report shall be deemed to be a Report under the CCS (CCA) Rules. The intent and purpose of the proviso inserted in Rule 14(2) of CCS (CCA) Rules and Rule 3C of CCS (Conduct) Rules is that the procedure required to be adopted for conducting an inquiry into the complaint of sexual harassment that can lead to imposition of a major penalty under the Rules, must be fair, impartial and in line with the Rules. In the instant case, though the Committee appointed by the Disciplinary Authority did not hold an inquiry strictly in terms of the step-by-step procedure laid down in Rule 14 of the CCS (CCA) Rules, nonetheless, we have seen that it did furnish copies of all the complaints, the depositions of the complainants and the relevant material to the appellant, called upon him to give his reply in defence and directed him to furnish the list of witnesses that he proposed to rely on.
On the one hand, the Committee kept on forwarding to the appellant, depositions of some more complainants received later on and those of other witnesses and called upon him to furnish his reply and on the other hand, it directed him to come prepared to cross-examine the said complainants and witnesses as also record his further deposition, all in a span of one week. It was all this undue anxiety that had led to short-circuiting the inquiry proceedings conducted by the Committee and damaging the very fairness of the process. As a consequence thereof, the impugned judgment upholding the decision taken by the EC of terminating the services of the appellant, duly endorsed by the Appellate Authority cannot be sustained and is accordingly quashed and set aside with the following directions: (i) The matter is remanded back to the Complaints Committee to take up the inquiry proceeding as they stood on 5 May 2009.
Case Title: AURELIANO FERNANDES Vs. STATE OF GOA . (2023 INSC 527)
Case Number: C.A. No.-002482-002482 / 2014
