JUTISMRITA DOWARAH Vs. STATE OF ASSAM AND ORS.

JUDGEMENT

(1.) On the basis of the allegation of sexual harassment in work place leveled by the Petitioner Smt. Jutismrita Dowarah against the Respondent No. 6, Dr. (Sri) Siba Kanta Dutta, the Governing Body of the Dibrugarh Hanumanbux Surajmal Kanoi College (D.H.S.K College) initiated a disciplinary proceeding vide notification dated 15.9.2004, under the provisions of Assam Services Discipline and Appeal Rules, 1964 ('1964 Rules') asking him to show cause as to why disciplinary action shall not be taken against him on the charges of gross misconduct involving moral turpitude, outraging modesty of a woman, criminal intimidation, sexual harassment of a woman at work place and gross dereliction of duty. The Respondent No. 6, by the said charge memo was asked to submit his written statement in defence within ten days and was also asked to communicate if he desires to inspect documents which are relevant with the issue under inquiry. Apart from the said charge memo dated 15.9.2004 another notification of the even date was also issued by the Governing Body of the college intimating the Respondent No. 6 about the constitution of the inquiry committee in its meeting dated 25.8.2004 and also the direction issued to the said inquiry committee to submit the report within two months. The Respondent No. 6 pursuant to the said charge sheet submitted his reply denying the charges leveled against him. The Governing Body in its meeting dated 31.7.2004 placed the Respondent No. 6 under suspension to facilitate the inquiry, which was communicated to him vide commutation dated 2.8.2004. Writ petition being W.P(C) No. 5577/2004 challenging the said resolution and the order of suspension was filed by the Respondent No. 6 where in an interim order was passed on 24.8.2004 staying the operation of the order of suspension. However, the said writ petition was dismissed vide judgment and order dated 24.1.2004 with the observation that he shall continue to remain under suspension till revocation of the order of suspension by the competent authority with further direction to conclude inquiry against him with utmost expedition. A Writ Appeal being No. 1 of 2005 was filed challenging the said judgment, which was admitted on 5.1.2005. After disposal of the said writ petition an application was filed by the Respondent No. 6 on 3.1.2005 addressed to the Chairperson of the inquiry committee intimating her about the willingness to participate in the inquiry and requesting to allow him to produce witness in his defence. The inquiry committee on 5.2.2005 submitted its report by holding that the first four charges against the Respondent No. 6 were proved but refrained from giving any finding in so far as the 5th charge is concerned. The Governing Body in its meeting dated 4.5.2005 considered the report of the inquiry committee and adopted the resolution withdrawing the resolution dated 31.7.2004 suspending the Respondent No. 6 from service and reinstating him in service by disagreeing with the finding recorded by the inquiry committee. The said resolution of the Governing Body was approved by the Director of Higher Education on 6.5.2005. Hence, the present writ petition by the Petitioner challenging the said resolution as well as the approval accorded by the Director, Higher Education.

(2.) I have heard Mr. Manojit Bhuyan, learned Counsel for the Petitioner, Mr. Pranabananda Pathak, learned senior Counsel for Respondent Nos. 4 and 5, Mr. G.K. Bhattacharjee, learned senior Counsel for the Respondent No. 6 as well as Ms. Maree Gogoi, learned Counsel for the Respondent Nos. 1, 2 and 3.

(3.) Mr. Bhuyan, learned Counsel for the Petitioner challenging the resolution adopted by the Governing Body in its meeting dated 4.5.2005 and order of the Director dated 6.5.2005 approving such resolution has submitted that as the preceding was initiated against the Respondent No. 6 under the provisions of 1964 Rules, the provision contained in Rule 9 of the said Rule has to be followed in so far as it relates to the requirements of recording finding, on each charge by the disciplinary authority, i.e., the Governing Body while disagreeing with the finding recorded by the inquiry committee. According to the learned Counsel as the inquiry committee submitted the report, finding the Respondent No. 6 guilty of four charges out of five, the Governing Body having disagreed with the finding recorded by the inquiry committee is required to record reasons after discussing the evidence on record but in the instant case as the Governing Body has recorded disagreement without discussing the evidence on record and without giving finding on each of the charges, the resolution adopted by it, is violative of the provision contained in Sub -rule 9 of the Rule 9 of the 1964 Rules, consequently the order approving such resolution passed by the Director is also bad in law. Mr. Bhuyan, learned Counsel for the Petitioner has also submitted that the disciplinary authority has to give special importance while taking up the report of the inquiry committee for consideration as the allegation against the Respondent No. 6 was sexual harassment of a woman in work place and the finding recorded by the inquiry committee cannot be disagreed by the Governing Body in a mechanical manner as has been done in the instant case. It has further been contended by the learned Counsel for the Petitioner that the Director, Higher Education, has also exercised its power of approval in a most mechanical way, which is evident from the fact that the resolution was adopted on 4.5.2005, signed on 5.5.2005 and approved on 6.5.2005 at Guwahati. The learned Counsel therefore, submits that the impugned resolution of Governing Body dated 4.5.2005 as well as the order of approval dated 6.5.2005 by the Director required to be interfered with. Mr. Bhuyan, has further contended that though the Respondent No. 6 in his affidavit -in -opposition has taken up the plea of locus standi of the Petitioner, the present case being based on the allegation of the sexual harassment of a woman in a work place and the disciplinary preceding having been initiated against him at the instance of the Petitioner, she cannot be termed as stranger to the preceding and therefore, she has the locus standi to challenge the impugned resolution and order of approval.