SABIR AHMED Vs. ASSAM UNIVERSITY

JUDGEMENT

(1.) This writ petition was originally filed with a petitioner put into challenge the communication dtd. 12/2/2018, directing the petitioner to appear before the Internal Complaints Committee of the Assam University based on a complaint lodged by a girl student as well as prayer for setting aside and quashing the order dtd. 6/4/2018 issued by the Registrar, Assam University imposing a penalty of compulsory retirement with effect from 6/4/2018. The further prayer in the writ petition was for setting aside and quashing the recommendations of the Internal Complaints Committee (hereinafter referred to as "ICC") of the Assam University as well as the resolution No. EC:117:03=18:06.2 of the 117th meeting (Special) of the Executive Council of the Assam University.

(2.) The petitioner was employed as a Peon in the year 1995 which post was subsequently re-designated as Multitasking Staff (MTC). While he was rendering service as a Multita-sking Staff which was a blemish free service career, on 8/2/2018, he was served with a notice dtd. 8/2/2018 issued by the Registrar, Assam University and he was asked to go on 15 days leave with immediate effect. The said notice was issued on the basis of a complaint of sexual harassment made by or lodged by a lady student. Thereafter, by communication dtd. 12/2/2018, the Chairperson of the ICC directed the petitioner to appear before the Internal Complaints Committee (ICC) of the University in response to the complaint made by the girl student. On 12/2/2018 when the petitioner appeared before the ICC, he was informed that there is an allegation against him by the complainant that on 7/2/2018 evening after the University classes were over, the complainant had boarded a private bus in which the petitioner had also boarded and while both were travelling in the bus, the petitioner made physical contact with the lady. The ICC members did not show the complaint lodged by the girl student against the petitioner. The petitioner was asked to explain as to what had happened in respect of the incident alleged. The petitioner stated that he was ignorant about any such incident taking place and he denied that he had done anything as alleged in the complaint. As far as he could recollect, a lady student of the university was also sitting next to him in the bus. It is stated that the petitioner was asked to write that he did not know anything about the incident and that he had not done anything. Upon being directed to put it in writing, the petitioner wrote that he had done nothing and since it was a moving bus and the petitioner and the said student were sitting in adjacent seats, while the bus took turnings, the petitioner's shoulder might have touched the complainant's shoulder and if that happened, it was unintentional. It is stated that the petitioner was asked to put that in writing and one member of the ICC dictated the petitioner to write it that there was contact with the shoulder of the petitioner with the girl student and that was a mistake. Although a copy of the complaint was sought for, but the same was refused to be handed over to the petitioner by the ICC. Subsequently, by order dtd. 6/4/2008, issued by the Registrar, Assam University, the petitioner was imposed a penalty of compulsory retirement with effect from 6/4/2018 under Rule 11(vii) of the CCS(CCA) Rules 1965. The said order was stated to have been passed in terms of the resolution No. EC EC:117:03=18:06.2 of the 117 th meeting (Special) of the Executive Council of the Assam University.

(3.) The learned counsel for the petitioner submits that it is the resolution adopted by the ICC as well as by the EC and the impugned order imposing penalty on the basis of the findings of the ICC as approved by the EC, that is a matter of challenge in the present writ petition. The learned counsel for the petitioner submits that to begin with no copy of the complaint was ever served on the petitioner. When he was asked to appear before the ICC, he had appeared and having been denied of being aware of the incident alleged. However, at the dictates of the member of the ICC, namely one Smti Tuhina Sharma Biswas, the petitioner was forced to write down that while traveling in a moving bus, his shoulder might have contacted the girl student and that was a mistake. The learned counsel for the petitioner submits that the entire process of conducting the enquiry by the ICC is totally opposed to the procedures prescribed under the Sexual Harassment of Women at Workplaces Rules 2013, which is framed under the Sexual Harassment of Women at Workplaces Act 2013. Under Rule 7 of the said Rules, petitioner is entitled to a copy of the complaint within seven (7) working days of the submission of the complaint following which the petitioner is entitled to submit his reply to the complaint within ten (10) days. It is submitted that the petitioner being a Grade-IV employee, he had no knowledge about the procedure prescribed and the consequences it will have. That apart, the major penalty of compulsory retirement was imposed without following the procedure prescribed under Rule 14 which has been violated. The penalty was imposed without any procedure followed. Under such circumstances, the prayer made by the writ petition ought to be allowed. The learned counsel for the petitioner submits that during the pendency of the writ petition, the petitioner expired and subsequently his wife as a legal heir was substituted and the present writ petition is now being pursued by his wife as a legal heir of the late petitioner. The learned counsel for the petitioner submits that in a recent judgment of the Apex Court rendered in Dr. Vijaya-kumaran C.P.V. Vs. Central University of Kerala and Ors. reported in (2020) 12 SCC 426, the Apex Court had held that once the ICC arrives at a conclusion regarding the allegation alleged, then such complaints ought to be taken to its logical end by not only initiating departmental or regular enquiry as per service Rules but also followed by other actions as per law. In such cases, a regular enquiry or departmental action as per service Rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence. Pressing this judgment into service, the learned counsel for the petitioner submits that the major penalty of compulsory retirement was imposed by the Disciplinary Authority by simply accepting the findings of the ICC and the recommendations made. This is contrary to law as no proper inquiry was held enabling the petitioner to vindicate his position and explain and get all opportunity to defend his case. Under such circumstances, the learned counsel for the petitioner submits that the recommendations arrived at by the ICC is completely contrary to the procedure prescribed under the Act and the Rules of 2013 and consequently the same having been accepted and acted upon by the Disciplinary Authority without taking recourse to a proper enquiry against the petitioner is violative of natural justice, fair play and to the provisions of law as prescribed. Under such circumstances, the recommendations of the ICC dtd. 6/4/2018, the acceptance of the recommendation by the EC in its (Special) meeting, by its minutes of the meeting held on 6/4/2018, as well as the impugned order dtd. 6/4/2018 imposing a penalty of compulsory retirement on the petitioner by the Disciplinary Authority, are incomplete contraventions of the rules and procedures prescribed, as well as the basic principles of natural justice and therefore the same should be interfered with, set aside and quashed as prayed for.