(Prayer: Writ Petition filed under Article 226 of the Constitution of to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the entire episode warranting the issuance of impugned order in F.No. 2-11/NITT/Regr/2017/60, dated 11.05.2017, having imposed upon the petitioner, the punishment of compulsory retirement by the 1st respondent, Board of Governors, National Institute of Technology, Tiruchirappalli an quash the same and direct the 2nd respondent to constitute Internal Complaints Committee afresh in accordance with law to try the allegations levelled against the petitioner under the Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act, 2013 by the complainant.)
1. The Writ Petition is filed to quash the impugned order dated 11.05.2017 imposing the punishment of compulsory retirement and to direct the 2nd respondent to constitute Internal Complaints Committee afresh in accordance with law.
2. The petitioner is working as Associate Professor in the National Institute of Technology, Trichy. One Mrs. J. Sheela had submitted a complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred as “Act”). The contention of the petitioner is that the said complaint was drafted by one Dr. S. Surendarnath, who had sent it through his Email ID. Thereafter, the complaint was forwarded to the Internal Complaints Committee. Therefore, the petitioner alleges that it is a “proxy complaint”. The petitioner also alleges that the complaint was through Email ID on 21.06.2016, but, the Internal Complaints Committee did not inform the petitioner within seven days under Sub Rule (2) of Rule 7 of the sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 and that he came to know about the complaint when he came to the venue on 11.07.2016, that the complainant has not given a written complaint against him as required under Section 9 of the said Act, that the complaint was sent through her Email ID that too has been forwarded by one Dr. S. Surendarnath, who was the author of the complaint and the complainant has not specified her inability to make a complaint either on account of physical or mental in capacity and therefore, it is violative of Section 9 of the Act. The petitioner alleges the said Dr. Surendranath has played a Villain role and because of infidelity his wife Dr. Ponmani, in the wake of illicit relationship with the complainant and to advice the complainant to stay away from her husband, the petitioner advised the said J. Sheela to refrain from such relationship with Dr. Surendranath and therefore, Dr. S. Surendarnath took grudge against the petitioner because of vengeance attitude of Dr. S. Surendranath, he has essayed the complaint. This is the ground to filing of First Information Report in All Women Police Station, Theni in Crime No.20 of 2016 and without knowing the real situation the Internal Complaints Committee has accepted the complaint. The Internal Complaints Committee did not hear the petitioner's submission patiently and biased approach has been pointed out to the second respondent through petitioner's representation from July 2016 onwards. The complainant did not submit herself before the Internal Complaints Committee in person nor the committee demanded her in person.
3. One Mr. P. Anandkumar, Research Scholar, prosecution side witness, had repeatedly given the written statement before the Committee and the said copy was not served since the said P. Anandkumar has requested to keep the statement confidentially. If the document is in favour of the petitioner, the Committee would not put his statement in the dustbin in other words the statement of said Anandkumar, is favouring the petitioner. The committee acted in whims and fancies, therefore, ruined the petitioner's career. The said Anandkumar was intimidated by the Chief Vigilance Officer i.e. Dr.T.N.Janakiraman, who is also a member of the committee. The petitioner vide representation, dated 20.07.2016 has alleged another member of the committee viz., Dr. Leela Velusamy who has acted against the petitioner and with revenge attitude that too the petitioner belongs to SC community trying to defame the petitioner and who has acted unbecoming of her position. Therefore, the petitioner has informed the 2nd respondent to refer the matter by invoking the SC and STs (Prevention of Atrocities) Act, 1989. He again alleges another member of the committee viz., Dr. L. Cindrella, who is also facing charges under the SC/ST Act and since they are facing charges under SC/ST Act, the petitioner states that they should not be forming part of the committee. The petitioner alleges bias against the members of the Internal Complaints Committee. The committee instead of settling the issue through conciliation as provided under Section 10 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act, 2013 before proceeding with enquiry, fueled the complainant to give additional complaint written by complainant dated Nil on 19.07.2016 levelling some more charges against the petitioner. The committee instead of keeping the confidentiality in regard to the identity of parties, disseminated the contents of the complaint and the outsiders were involved to defame the petitioner, which is against Section 16 of the Act which attracts the penalty under Section 17.
4. The third respondent without taking note of the charge against SC/ST, the proceeded with the enquiry and has accepted the recommendations of the committee on 22.12.2016 and framed three charges against the petitioner. The petitioner alleges bias against the entire proceedings. The petitioner states that the report of the Internal Complaints Committee is against the Office Memorandum issued by the Government of India in F.No.11013/2/2014-Estt (A-III) dated 16.07.2015. The petitioner alleges the Internal Complaints Committee abused the petitioner by caste name in the public view. Finally, the fourth respondent finalized its report and submitted on 27.04.2017. Thereafter, the show cause dated 29.03.2017 was issued to the petitioner with the proposal to impose penalty under the First Statutes 2009 i.e. NITs. The petitioner filed Writ Petition in W.P.(MD).No. 6158 of 2017 challenging the appointment of the inquiring authority and this Court issued notice to the respondents but the first respondent proceeded with show cause notice in regard to the proposed punishment in spite of the detailed explanation by the petitioner on 12.04.2017 by the petitioner. The respondents have imposed penalty of compulsory retirement vide order dated 11.05.2017 and the said order is put to challenge before this Court.
5. The respondents have filed the counter denying all the allegations stated in the affidavit and has submitted the Presiding Officer of the Internal Complaints Committee received Email on 21.06.2016 from Ms. Sheela stating that Ms. Sheela suffered in the hands of the Writ Petitioner and on the receipt of the Email an acknowledgment was sent on 28.06.2016. The complainant Ms. Sheela, Research Scholar attached to the Department of Computer Applications, NIT doing her Ph.D., under the guide ship of the Writ Petitioner. The said complaint was sent to the 2nd respondent / Director also and thereafter, the second respondent issued for change of guide on 24.06.2016 and forwarded the complaint to Internal Complaints Committee. The Internal Complainants Committee before summoning the petitioner had first contacted the complainant and only after the complainant substantiated her charges by producing evidences in the form of WhatsApp messages, Face Book and audio clippings of the telephonic conversation between the petitioner and the complainant, then the Internal Complaints committee has been decided to summon the Writ Petitioner.
6. The Internal Complaints Committee requested the third respondent to summon the Writ Petitioner in order to furnish the copy of the complaint sent by Email to ascertain the veracity of the complaint. The petitioner appeared before the Internal Complaints Committee on 11.07.2016 and was served with the hard copy of E-mail complaint, dated 21.06.2016. On 11.07.2016, the petitioner anticipating the reason for summoning him, had come prepared with a report of 36 pages containing messages supposed to be in between the complainant Ms. Sheela and Mr. Surendranath and complaint of Ms.Ponmeni and her father on the same day. The writ petitioner appeared before the Internal Complaints Committee and gave his version with regard to the allegations containing in the complaint. Thereafter, preliminary inquiry conducted by the Internal Complaints Committee on 11.07.2016 revealed that there is a prima facie case against the petitioner and that the complaint deserved an inquiry as per the provisions of the Act. Therefore, the Internal Complaints Committee required the complainant Ms. Sheela to give her complaint in writing and the complainant also submitted the written complaint on 19.07.2016. The fourth respondent furnished the copy of evidence submitted by the complainant in the form of WhatsApp messages, Facebook Messages and audio clippings of the telephonic conversation in between the petitioner and the complainant and a copy of the written complaint submitted on 19.07.2016 to the Writ Petitioner on 26.07.2016 and sought his explanation and the Writ Petitioner has also submitted his explanation on 05.08.2016. Subsequent to the receipt of reply from the petitioner, the Internal Complaints Committee conducted an inquiry on 02.09.2016 and submitted its report dated 20.10.2016 wherein it is stated that the petitioner had sexually harassed her in his office cabin and in the Hotel and had intimidated Ms. Sheela by threatening to expose their affair and recommended for strict action against the petitioner. The allegation that the petitioner was not given the copy of the complainant is denied as false. Initially, the petitioner denied relationship with Sheela. Subsequently, during inquiry accepted the acts but has taken a defence that the relationship is with mutual consent. The respondents submitted that the Internal Complaints committee has acted in compliance of the principles of natural justice and has complied with the provisions of Act. The complainant expresses her inability to appear in person on account of threats which was facing from the petitioner and his companions and therefore, the Internal Complaints committee accepted her request and dispensed with the personal appearance before the Internal Complaints Committee. The respondents have also submitted that the petitioner was deliberately making false accusations against the members of the Internal Complaints Committee in order to intimidate the members of Internal Complaints Committee and scuttle the entire inquiry process. The preliminary inquiry conducted by the Internal Complaints Committee on 11.07.2016 revealed serious charges against the petitioner, the office of the Director NITT required the Internal Complaints Committee to proceed ahead with inquiry process. The complainant also belongs to SC community and in spite of the same the petitioner is playing with Caste Card in order to malign and discredit the entire enquiry process. As regards the written statement given by Anandkumar, the respondents submitted the conclusion with regard to the guilt of the accused is independent and the statement of Anandkumar was not relied upon while arriving at the conclusion of the charges. Even though, Anandkumar was listed as prosecution witness, he was not summoned for the inquiry as he had addressed representation to the Internal Complaints Committee giving his version of events and asking the Internal Complaints Committee not to divulge the contents of his representation either to the complainant or to the writ petitioner. Therefore, Internal Complaints Committee had decided not to relay upon the statement of the Anandkumar. Therefore, the question of serving the copy of statement given by P.Anandkumar does not arise.
7. In view of the repeated allegations made by the petitioner against two female members of the Internal Complaints Committee at the every stage of inquiry process, the NITT administration in order to ensure itself and the petitioner that the members of the Internal Complaints Committee did not suffer from any bias constituted a committee on 21.09.2016 headed by the Nodal Officer for SC, ST, OBC, PWD and minorities to look into the allegations levelled by the petitioner against the members of Internal Complaints Committee. After conducting inquiry dated, 27.04.2017 which was placed in the 45th Board of Governors meeting held on 01.05.2017. In the said meeting, the Board of Governors after considering the report has passed resolution to the effect that the petitioner in order to divert attention from his case has been making such false allegations against committee and which are devoid of merits. Therefore, the respondents decided to close the petitioner's representation. The respondents have submitted that the allegations of bias made against the members of the Internal Complaints Committee cannot be looked into, since the members of Internal Complaints Committee against whom such imputations of bias have been made are not impleaded in their personal capacity. As regards non-compliance of the conciliation provisions it is submitted that the provisions of section 10 of the SH Act 2013 provides for conciliation only at the instance of the aggrieved woman and in the present case the complainant Ms.Sheela did not request for a conciliation process to settle the case with the petitioner and the complainant instead had requested the Internal Complaints Committee to take action against the petitioner for sexually harassing the complainant.
8. The allegation against the Internal Complaints Committee that they disseminated information is denied as false and at any point of time the information was not disseminated. There is no merit in the entire affidavit of the petitioner. The respondents had adhere the Office Memorandum of the Government of India, dated 16.07.2015. The petitioner has furnished a copy of the complaint dated 19.07.2016 on 26.07.2016 and the hard copies of the evidence relied on by the complainant to substantiate her claim. The petitioner was allowed and granted opportunity to substantiate his case on 02.09.2016. The Internal Complaints Committee heard the Writ petitioner and considered his reply, dated 05.08.2016 and submitted his report dated 20.10.2016 and the same was placed before the 43rd Board of Governors meeting held on 14.12.2016 and the Board of Governors resolved to initiate Disciplinary Proceedings against the writ petitioner. Thereafter, the charge memorandum dated 22.12.2016 issued and the petitioner was placed under suspension on 22.12.2016 and the petitioner was paid subsistence allowance during the period of suspension. The allegation of bias was taken into consideration and the Board of Governors in its meeting held on 01.05.2017 has rejected the allegation of bias. The petitioner submitted his reply dated 04.01.2017 for the charge memo. The petitioner was present during the inquiry and permitted to cross examine the complainant who had given oral testimony through skype and the writ petitioner was allowed to examine himself and present his side of witness, documentary evidence and the enquiry proceedings were videographed. After conclusion of the enquiry proceedings, the Enquiry Officer submitted his report and it was placed before the 44th Board of Governors Meeting NITT which was held on 20.03.2017. The enquiry report was considered by the Board of Governors and decided to issue a show cause notice along with enquiry report in order to seek explanation from the petitioner with regard to the penalty that was suggested to be imposed on him as provided under Clause 26(c) of First Statutes for NITT. The show cause notice dated 29.03.2017 was issued with enquiry report and the petitioner submitted a reply dated 12.04.2017 in a sealed cover to the respondent on 13.04.2017. The reply was opened by the Board of Governors on 01.05.2017. In the interregnum period, the petitioner had filed W.P.(MD).No. 6158 of 2017 seeking direction to quash the suspension order and further orders and notices issued in the disciplinary proceedings. Since there was no interim order the Board of Governors of NITT in 45th meeting decided to proceed further and concluded that the charges framed against the petitioner vide charge memo dated 22.12.2016 stood proved and decided to impose the penalty compulsory retirement. Thereafter, the third respondent issued the order dated 11.05.2017 imposing the penalty of compulsory retirement on the petitioner with immediate effect.
9. Heard Mr. Vijayan, Senior Counsel for Mr. R. Ramachandran for the petitioner and Mr. Sankaranarayan Additional Solicitor General for Mrs. Maria Roseline for the respondents.
10. The contention of the petitioner is that the complaint was not preferred by the complainant and the same was authored and send by Dr. S. Surendarnath, who is a third person. The same cannot be considered a compliant in writing as required by section 9(1) of the Act. Section 9(2) of the Act states that,
“Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.”
The respondents denied the said contention and submitted that the said Dr. S. Surendarnath had preferred an email complaint on 21.06.2016 and based on the complaint the ICC contacted the complainant and only after the complainant substantiated the charges by producing evidences, the ICC decided to summon the writ petitioner. Then the ICC requested the third respondent to summon the writ petitioner in order to furnish the copy of the complaint sent by Email to ascertain the veracity of the complaint. The petitioner appeared before the Internal Complaints Committee on 11.07.2016 and was served with the hard copy of E-mail complaint, dated 21.06.2016. On 11.07.2016, the petitioner anticipating the reason for summoning him, had come prepared objection containing 36 pages messages supposed to be in between the complainant Ms. Sheela and Dr. Surendranath and complaint of Ms. Ponmeni wife of Dr. Surendranath and her father on the same day. The writ petitioner appeared before the ICC and gave his version with regard to the allegations containing in the complaint. Since in preliminary inquiry on 11.07.2016 revealed that there is a prima facie case against the petitioner and that the complaint deserved an inquiry as per the provisions of the Act, then the complainant submitted her written complaint on 19.07.2016. The fourth respondent furnished the copy of evidence submitted by the complainant in the form of WhatsApp messages, Facebook Messages and audio clippings of the telephonic conversation in between the petitioner and the complainant and a copy of the written complaint submitted on 19.07.2016 to the writ petitioner on 26.07.2016 and sought his explanation and the writ petitioner has also submitted his explanation on 05.08.2016. From this it would be evident that the written complaint as required under section 9(1) is submitted on 19.07.2016 and the writ petitioner was served with the copy of the same on 26.07.2016.
11. The contention of the petitioner is that the complaint was by one Dr. S. Surendarnath and was send through his email on 21.06.2016, but, the Internal Complaints Committee did not inform the petitioner within seven days as per Rule 7(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 and that he came to know about the complaint when he came to the venue on 11.07.2016. For this the petitioner relied on charge memo dated 22.12.2016, wherein in Annexure III, in the list of documents it has been mentioned the complaint dated 21.06.2016. This was vehemently denied by the respondents stating that the petitioner had come to the preliminary enquiry conducted on 11.07.2016 with 35 pages objection to the email complaint dated 21.06.2016 and that would indicate that the petitioner had the copy of the email complaint. The respondents submitted that since the 21.06.2016 email complaint was send by Dr. S. Surendarnath, the respondents directed the complainant to submit a written complaint and the same was submitted on 19.07.2016 and this written complaint was served on 26.07.2016, which is within seven days. The contention of the petitioner ought to be rejected since in the reply dated 04.01.2017 to the charge memo dated 22.12.2016, the petitioner has stated as under:
“1) I submit that all the allegations stated in the complaint and the charges framed against me on the basis of the complaint dated 21.06.2016 and 19.07.2016 are specifically and emphatically denied as false, baseless, frivolous, malicious, vindictive, motivated and distorted without an iota of truth.”
Therefore, this Court is of the considered view that the mentioning of date as “21.06.2016” in the charge memo as typographical error. Even otherwise the mistake can be condoned since quoting of wrong provision or wrong date will not vitiate the entire proceedings. More so when the writ petitioner has quoted the correct dates in his reply as 21.06.2016 and 19.07.2016. Therefore, this Court is of the considered opinion that the email complaint is send by the said Dr. S. Surendarnath in order to help the complainant, on preliminary enquiry the respondents are convinced that there is prima facie evidence, then the complainant had preferred a written complaint on 19.07.2016 and the same was served to the writ petitioner on 26.07.2016, hence the mandatory requirement of serving the copy of the complaint within seven days is complied with and the contention of the petitioner is rejected.
12. The next contention of the petitioner is that the complaint ought to be referred by the Disciplinary Authority to ICC and the same was not followed. This contention was denied by the respondents stating that the email complaint was received by the ICC and the same email complaint was received by the Director of the NIT. The Director in turn had directed for detailed investigation by the ICC of the Institute. Thereafter ICC has conducted Preliminary Enquiry and has submitted the “Preliminary Enquiry Report dated 20.10.2016”. The same was placed before the Board of Directors in its 43rd Board Meeting and it was resolved that there is prima facie substance in the allegation, resolved to place the delinquent under suspension and also resolved to issue charge sheet to the charged officer. The email directing the ICC to investigate was perused and the 43rd meeting minutes was perused and the relevant portion is extracted hereunder:
“Mrs. Sheela, Research Scholar has complained about harassment. Following decisions are taken for immediate action.
1. Change of Guide
2. Refer the case for detailed investigation and recommendations by the Standing Harassment Committee of the Institute
3. The Registrar may kindly inform the concerned.”
RESOLUTION 43 / BoG/2016/14
RESOLVED THAT there is a prima facie substance in the allegations of the complainant against the Charged Officer.
RESOLVED FURTHER THAT the Charged Officer shall be placed under suspension with immediate effect, until further notice as per Clause 26 (1) (i) of the First Statutes 2009for the NIT’s, without waiting for the confirmation of the minutes, as the officer may interfere with further proceedings.
RESOLVED FURTHER THAT a format Charged Sheet shall be issued to the Charged Officer. The charges in the Charge Sheet shall be based on the preliminary inquiry conducted by the ICC. The Charge Sheet be drawn by the Registrar, NIT Tiruchirappalli, in accordance with the guidelines issued by DoPT vide Letter No. F. No. 11013 / 2014-Esst (A-III) dated July 16th, 2015. The charge sheet be approved by the Chairperson In-Charge, Board of Governors and served on the Charged Officer.
On perusing the aforesaid contents this Court is of the considered opinion that the allegation of the petitioner is baseless and the same is rejected.
13. The next contention of the petitioner is that on 12.07.2016 the petitioner has sent email to ICC to supply the evidences and the petitioner replied an email dated 15.07.2016 with attachment, but the file was corrupted and unusable. Again the petitioner requested to resend and the petitioner received the documents by 5 PM on 15.07.2016, hence the documents were not supplied in time and the same were sent after 24 days of the complaint. As stated supra the email complaint was received on 21.06.2016 and the written complaint on 19.07.2016 and this written complaint was served and the petitioner appeared for preliminary enquiry 11.07.2016 with 35 pages objection to the email complaint. Therefore, the allegation of the petitioner that the documents were supplied after 24 days is not acceptable.
14. The next contention of the petitioner is that the ICC committee has not circulated the statement and submission of the witness namely P. Ananadha Kumar. According to the petitioner the said P. Ananadha Kumar has submitted evidence in his favour and deliberately the respondents are not allowing the evidence. The contention of the respondents is that the said P. Ananadha Kumar has given statement and evidence but has requested not to reveal. Hence the respondents submitted that they have decided that the evidence of the said P. Ananadha Kumar shall be ignored. The respondents submitted that they have decided to consider other evidence. The contention of the respondents are that the charges were held proved dehors the evidence of the said P. Ananadha Kumar. Therefore, this Court is of the considered opinion that there
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cannot be any grievance for the petitioner regarding the evidence of P. Ananadha Kumar since the same was not taken for consideration for coming to the conclusion that the charges are proved. Therefore this Court is of the considered opinion that this petition is devoid of merits 15. It is seen from the records that the respondents have granted adequate opportunity to petitioner. The evidence submitted by the complainant was served to the petitioner, the documents relied on by the complainant was served to the petitioner. The petitioner was allowed to submit his evidence and documents, examine and cross examine the witness and there is no violation of principles of natural justice. 16. The petitioner has also alleged that the respondents have allowed the complainant to appear in skype and therefore the petitioner could not cross exam the complainant. The same was denied by the respondents. On perusing the entire records placed before this Court, it is seen that the complainant had sought permission before the ICC to appear through skype and the same was considered by the ICC and thereafter permission was granted. It is within the domain of the ICC to decide the same and this Court is not inclined to entertain such issues at this stage, since the enquiry was over and the petitioner was imposed punishment of compulsory retirement. 17. This Court is of the considered opinion that the petitioner has tried to put spokes at every stage of the inquiry, has submitted allegation against every person in the Institute. The petitioner has alleged bias, then the respondents had conducted an enquiry into the same. The petitioner alleged caste discrimination and then the respondents appointed an enquiry officer to enquire about the caste discrimination. All such allegations were held not proved and the allegations are false. All these complaints have not worked in favour of the petitioner and then finally the petitioner had submitted a petition before SC/ST Commission and a show cause notice were issued against the ICC members and they were forced to face the proceedings under SC/ST Commission. The Learned Senior Counsel submitted that the case may be remitted back to the authority to conduct de nova enquiry. It is seen that the petitioner in order to deviate the complaint against him, has filed petitions after petitions before various authorities against everyone. If the case is remitted back, then the petitioner would file petitions after petitions and he will not allow the enquiry to go on. Moreover, this Court has held that the allegations raised by the petitioner before this Court are of devoid of merits as stated supra. 18. Therefore this Court is of the considered opinion that this petition is devoid of merits and liable to be dismissed and hence the petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.