AURELIANO FERNANDES v. STATE OF GOA AND OTHERS

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A duty to satisfy itself that an inquiry into the allegations of sexual harassment by a Committee is conducted in terms of the service rules and that the concerned employee gets a reasonable opportunity to vindicate his position and establish his innocence 73. (b) EXTENT OF ADHERENCE TO THE “AS FAR AS B PRACTICABLE” NORM

58Copy pinpoint58. 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 C 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?

59Copy pinpoint59. Rule 14 prescribes the procedure required to be followed for conducting an inquiry by a Public Authority which entails issuance of a charge sheet, furnishing details of the Articles of Charge, enclosing statements of imputations in respect of each article of charge, forwarding of a list of witnesses and the documents sought to be relied upon by the Management/employer. The said procedure may not have been strictly followed by the Committee in the present case, but it is not in dispute that all the complaints received from time to time and the depositions of the complainants were disclosed to the appellant. He was, therefore, well aware of the nature of allegations levelled against him. Not only was the material proposed to be used against him during the inquiry furnished to him, he was also called upon to explain the said material by submitting his reply and furnishing a list of witnesses, which he did. 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. The charges levelled by all the complainants were of sexual harassment by the appellant with a narration of specific instances. Therefore, in the given facts and circumstances, non-framing of the Articles of Charge by the Committee cannot be treated 73 Dr. Vijaykumaran C.P.V. v. Central University of Kerala and Others, (2020) 12 H SCC 426

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[HIMA KOHLI, J.]

as fatal. Nor can the appellant be heard to state that he was completely A in the dark as to the nature of the allegations levelled against him and was not in a position to respond appropriately. So far, so good. (c) THE COMMITTEE’S UNDERSTANDING OF ITS MANDATE :

60Copy pinpoint60. As noted above, when the Registrar of the respondent No. 2– B University addressed a letter to the Chairperson of the Committee, he forwarded nine complaints of sexual harassment that had been received by the Vice Chancellor of the University. The process of the inquiry was set into motion on 17th March 2009 when the appellant was informed that on receiving complaints of sexual harassment against him, the C Committee had conducted a preliminary verification of the complaints by recording the statements of the concerned students. Till then, no specific Articles of Charge were framed by the Committee and no imputation of charges were forwarded to the appellant. 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 D charges levelled against him.

61Copy pinpoint61. The plea of the appellant that the Committee understood the remit of its inquiry as a ‘fact-finding proceeding’, can be discerned from the contents of the letters dated 17th March 2009 and 20th April 2009 addressed to the appellant. The impression carried by the Committee E 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 8th 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 F of the CCS (CCA) Rules. This was the first time when the respondents informed the appellant that the EC had decided to follow the procedure prescribed under the rules of drawing up a Statement of Articles of Charge, imputation of misconduct in support of each Article of Charge and other documents and had granted the appellant time to submit his reply in defence. The appellant did submit a reply. But it is an admitted G position that the said inquiry proceedings were aborted at the initial stage itself and it was the Report of the Committee submitted earlier, that was acted upon by the EC in terms of a decision taken on 28th January 2010. We are of the opinion that when the Committee itself was unclear as to the scope of its inquiry, the appellant cannot be blamed for harbouring an H

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A impression that the remit of the Committee was confined to fact finding alone and it was not discharging the functions of a disciplinary committee, as contemplated under the service Rules. (d) WHIRLWIND PROCEEDINGS

62Copy pinpoint62. On examining the records, it emerges that the point at which B 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. It is noteworthy that the proceedings of the Committee had commenced on 16th April 2009 and stood concluded on 5th June,

C 2009. During this period, 18 meetings were conducted by the Committee. Following is the month-wise details of the dates on which the meetings of the Committee were conducted : (i) April 2009 – On 16th,27th and 29th (ii) May 2009 – On 6th,12th,13th,14th,19th,20th, 22nd,23rd,25th,27th,28th D and 29th (iii) June, 2009 – On 3rd,4th and 5th

63Copy pinpoint63. It is also noteworthy that the time span prescribed under the CCS (CCA) Rules for concluding an inquiry is ordinarily within a period of six months from the date of receipt of the order of appointment. But, E here, the entire process was wrapped up in flat 39 days. This shows the tearing hurry in which the Committee was to submit its Report. One such glaring instance of the over anxiety to conclude the proceedings is apparent from the letter dated 5th May 2009, addressed by the Committee to the appellant informing him that the next date for filing his reply and F for recording further depositions was 12th June 2009. 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 ‘12th May 2009’ and the date for recording further depositions should be read as ‘14th May, 2009’, thus moving the dates back by a whole month. G Another egregious example of the hurry and scurry shown by the Committee can be gathered from the fact that on 20th May 2009, the Committee had written to the appellant giving him a last opportunity to present himself on 20th May 2009, not only to complete his deposition, but also to cross-examine the complainants and other witnesses. H Simultaneously, the Committee forwarded six more depositions to the

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[HIMA KOHLI, J.]

appellant and directed him to furnish his reply within 48 hours i.e. by A 22nd May, 2009.

64Copy pinpoint64. Even if this Court was to accept the submission made by learned counsel for the respondents that the appellant was offering flimsy excuses to somehow prolong the proceedings and the health ground taken by him was not genuine, it does not explain the approach of the B Committee which was well aware of the fact that at least six more depositions had been handed over to the appellant as late as on 20th May

2009. Even if he had been hale and hearty, he would still have required a reasonable time to respond to the additional depositions and simultaneously, prepare himself for cross-examining the complainants and completing his deposition. This can only be termed as an unreasonable and unfair direction by the Committee.

65Copy pinpoint65. The undue haste demonstrated by the Committee for bringing the inquiry to a closure, cannot justify curtailment of the right of the appellant to a fair hearing. The due process, an important facet of the principles of natural justice was seriously compromised due to the manner in which the Committee went about the task of conducting the inquiry proceedings. As noted above, when the proceedings, subject matter of the present appeal had taken place, the PoSH Act was nowhere on the horizon and the field was occupied by the Vishaka Guidelines. The said Guidelines also did not exclude application of the principles of natural justice and fair play in making procedural compliances. 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. This Court has repeatedly observed that even when the rules are silent, principles of natural justice must be read into them. In its keen anxiety of being fair to the victims/complainants and wrap up the complaints expeditiously, the Committee has ended up being grossly unfair to the appellant. It has completely overlooked the cardinal principle that justice must not only be done, but should manifestly be seen to be done. The principles of audi alterem partem could not have been thrown to the winds in this cavalier manner. (e) HOW DID THE EXECUTIVE COUNCIL FALTER?

66Copy pinpoint66. The error committed on the part of the EC, is no less grave. 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 H

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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. The result was that though the Report of the First Committee was accepted and the EC proceeded to place the appellant under suspension, for the very first time, it decided to issue him Memorandum detailing the Articles of Charge and the imputation of B charges and further appointed a Former Judge of the High Court as an Inquiry Officer to conduct the inquiry in terms of the Rules. Respondent Nos. 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 C 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.

67Copy pinpoint67. When the employer itself was oblivious to the remit of the D Committee and the Committee remained under the very same impression having described its proceedings as fact-finding in nature, it was all the more incumbent for the respondents to have paused on receiving the Report of the First Committee and verify the legal position before taking the next step. In all this back and forth, it was the procedure prescribed under Rule 14 for conducting an inquiry of sexual harassment at the workplace that came to be sacrificed at the alter of expeditious disposal, which can neither be justified nor countenanced.

68Copy pinpoint68. 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. Pertinently, the emphasis on adhering to the principles of natural justice during an inquiry conducted by a Complaints Committee finds specific mention in Rule 7(4) of the subsequently enacted Rules of 2013. But the spirit behind the due process could never be suppressed or ignored even in the absence of the Statute or the Rules inasmuch as the principles of natural justice is the very essence of the decision-making process and must be read into every judicial or even a quasi-judicial proceeding.

69Copy pinpoint69. This is not to say that the Committee even if described as an Inquiring authority, by virtue of the ruling in Medha Kotwal’s case (supra) H and required to follow the procedure prescribed under Rule 14, was

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[HIMA KOHLI, J.]

expected to conduct the inquiry as if it was a full-fledged trial. The A expression used in the proviso to Rule 14(2), ‘as far as practicable’ has to be read and understood in a pragmatic manner. In any such proceedings initiated by the Disciplinary Authority, a calibrated balance would have to be struck between the rights of a victim of sexual harassment and those of the delinquent employee. At the same time, B fairness in the procedure would have to be necessarily adopted in the interest of both sides. After all, what is sauce for the goose, is sauce for the gander. M. CONCLUSION

70Copy pinpoint70. In the instant case, though the Committee appointed by the C 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. Records also reveal that the appellant had furnished a detailed reply in defence. He had also submitted a list of witnesses and depositions. This goes to show that he was well-acquainted with the nature of allegations levelled against him and knew what he had to state in his defence. Given the above position, non-framing of the articles of charge cannot be said to be detrimental to the interest of the appellant.

71Copy pinpoint71. In fact, the glaring defects and the procedural lapses in the inquiry proceedings took place only thereafter, in the month of May, 2009, when 12 hearings, most of them back-to-back, were conducted by the Committee at a lightning speed. 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. Even if the medical grounds taken by the appellant seemed suspect, the G Committee ought to have given him reasonable time to prepare his defence, more so when his request for being represented through a lawyer had already been declined. 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. H

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72Copy pinpoint72. For the above reasons, the appellant cannot be faulted for questioning the process and its outcome. There is no doubt that matters of this nature are sensitive and have to be handled with care. The respondents had received as many as seventeen complaints from students levelling serious allegations of sexual harassment against the appellant. But that would not be a ground to give a complete go by to the procedural fairness of the inquiry required to be conducted, more so when the inquiry could lead to imposition of major penalty proceedings. When the legitimacy of the decision taken is dependent on the fairness of the process and the process adopted itself became questionable, then the decision arrived at cannot withstand judicial scrutiny and is wide open to interference. It is not without reason that it is said that a fair procedure alone can guarantee a fair outcome. In this case, the anxiety of the Committee of being fair to the victims of sexual harassment, has ended up causing them greater harm.

73Copy pinpoint73. This Court is, therefore, of the opinion that the proceedings conducted by the Committee with effect from the month of May, 2009, fell short of the “as far as practicable” norm prescribed in the relevant Rules. The discretion vested in the Committee for conducting the inquiry has been exercised improperly, defying the principles of natural justice. 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 5th May 2009. (ii) The Committee shall afford adequate opportunity to the appellant to defend himself. (iii) The appellant shall not seek any adjournment of the proceedings. (iv) A Report shall be submitted by the Committee to the Disciplinary Authority for appropriate orders. G (v) Having regard to the long passage of time, the respondents are directed to complete the entire process within three months from the first date of hearing fixed by the Committee. (vi) The procedure to be followed by the Committee and the Disciplinary Authority shall be guided by the principles of natural H justice.

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[HIMA KOHLI, J.]

(vii) The Rules applied will be as were applicable at the relevant A point of time. (viii) The decision taken by the Committee and the Disciplinary Authority shall be purely on merits and in accordance with law. (ix) The appellant will not be entitled to claim immediate reinstatement or back wages till the inquiry is completed and a B decision is taken by the Disciplinary Authority. N. EPILOGUE

74Copy pinpoint74. Just as we celebrate a decade of the PoSH Act being legislated, it is time to look back and take stock of the manner in which the mandate of the Act has been given effect to. The working of the Act is centred on the constitution of the Internal Complaints Committees(ICCs) by every employer at the workplace and constitution of Local Committees(LCs) and the Internal Committees(ICs) by the appropriate Government, as contemplated in Chapters II and III, respectively of the PoSH Act. An improperly constituted ICC/LC/IC, would be an impediment in conducting an inquiry into a complaint of sexual harassment at the workplace, as envisaged under the Statute and the Rules. It will be equally counterproductive to have an ill prepared Committee conduct a half- baked inquiry that can lead to serious consequences, namely, imposition of major penalties on the delinquent employee, to the point of termination of service. E

75Copy pinpoint75. It is disquieting to note that there are serious lapses in the enforcement of the Act even after such a long passage of time. This glaring lacuna has been recently brought to the fore by a National daily newspaper that has conducted and published a survey of 30 national sports federations in the country and reported that 16 out of them have F not constituted an ICC till date. Where the ICC have been found to be in place, they do not have the stipulated number of members or lack the mandatory external member. This is indeed a sorry state of affairs and reflects poorly on all the State functionaries, public authorities, private undertakings, organizations and institutions that are duty bound to implement the PoSH Act in letter and spirit. Being a victim of such a G deplorable act not only dents the self-esteem of a woman, it also takes a toll on her emotional, mental and physical health. It is often seen that when women face sexual harassment at the workplace, they are reluctant to report such misconduct. Many of them even drop out from their job. One of the reasons for this reluctance to report is that there is an H

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A uncertainty about who to approach under the Act for redressal of their grievance. Another is the lack of confidence in the process and its outcome. This social malady needs urgent amelioration through robust and efficient implementation of the Act. To achieve this, it is imperative to educate the complainant victim about the import and working of the Act. They must be made aware of how a complaint can be registered, B the procedure that would be adopted to process the complaint, the objective manner in which the ICC/LC/IC is expected to function under the Statute, the nature of consequences that the delinquent employee can be visited with if the complaint is found to be true, the result of lodging a false or a malicious complaint and the remedies that may be available to a C complainant if dissatisfied with the Report of the ICC/LC/IC etc.

76Copy pinpoint76. However salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless and until there is strict adherence to the enforcement regime and a proactive approach by all the State and non-State actors. If the working environment continues to remain hostile, insensitive and unresponsive to the needs of women employees, then the Act will remain an empty formality. If the authorities/managements/employers cannot assure them a safe and secure work place, they will fear stepping out of their homes to make a dignified living and exploit their talent and skills to the hilt. It is, therefore, time for the Union Government and the State Governments to take affirmative action and make sure that the altruistic object behind enacting the PoSH Act is achieved in real terms. O. DIRECTIONS

77Copy pinpoint77. To fulfil the promise that the PoSH Act holds out to working women all over the country, it is deemed appropriate to issue the following directions : (i) The Union of India, all State Governments and Union Territories are directed to undertake a timebound exercise to verify as to whether all the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. have constituted ICCs/LCs/ICs, as the case may be and that the composition of the said Committees are strictly in terms of the provisions of the PoSH Act. (ii) It shall be ensured that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, details of the e-mail IDs and contact numbers of the designated person(s), the procedure H

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prescribed for submitting an online complaint, as also the relevant rules, A regulations and internal policies are made readily available on the website of the concerned Authority/Functionary/ Organisation/Institution/Body, as the case may be. The information furnished shall also be updated from time to time. (iii) A similar exercise shall be undertaken by all the Statutory B bodies of professionals at the Apex level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes. (iv) Immediate and effective steps shall be taken by the authorities/ C managements/employers to familiarize members of the ICCs/LCs/ICs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is finally concluded and the Report submitted. D (v) The authorities/management/employers shall regularly conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of the ICCs/LCs/ICs and to educate women employees and women’s groups about the provisions of the Act, the Rules and relevant regulations. E (vi) The National Legal Services Authority(NALSA) and the State Legal Services Authorities(SLSAs) shall develop modules to conduct workshops and organize awareness programmes to sensitize authorities/ managements/employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar. F (vii) The National Judicial Academy and the State Judicial Academies shall include in their annual calendars, orientation programmes, seminars and workshops for capacity building of members of the ICCs/LCs/ICs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules. G (viii) A copy of this judgment shall be transmitted to the Secretaries of all the Ministries, Government of India who shall ensure implementation of the directions by all the concerned Departments, Statutory Authorities, Institutions, Organisations etc. under the control of the respective Ministries. A copy of the judgment shall also be transmitted to the Chief H

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A Secretaries of all the States and Union Territories who shall ensure strict compliance of these directions by all the concerned Departments. It shall be the responsibility of the Secretaries of the Ministries, Government of India and the Chief Secretaries of every State/Union Territory to ensure implementation of the directions issued. B (ix) The Registry of the Supreme Court of India shall transmit a copy of this judgment to the Director, National Judicial Academy, Member Secretary, NALSA, Chairperson, Bar Council of India and the Registrar Generals of all the High Courts. The Registry shall also transmit a copy of this judgment to the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries C and the Engineering Council of India for implementing the directions issued. (x) Member-Secretary, NALSA is requested to transmit a copy of this judgment to the Member Secretaries of all the State Legal Services Authorities. Similarly, the Registrar Generals of the State High Courts D shall transmit a copy of this judgment to the Directors of the State Judicial Academies and the Principal District Judges/District Judges of their respective States. (xi) The Chairperson, Bar Council of India and the Apex Bodies mentioned in sub-para (ix) above, shall in turn, transmit a copy of this judgment to all the State Bar Councils and the State Level Councils, as the case may be.

78Copy pinpoint78. The Union of India and all States/UTs are directed to file their affidavits within eight weeks for reporting compliances. List after eight weeks.

79Copy pinpoint79. The appeal is allowed on the above terms while leaving the parties to bear their own costs. Pending applications, if any, shall stand disposed of.

Ankit Gyan Appeal allowed and directions issued. (Assisted by : Mahendra Yadav, LCRA) G