2022 (4) TMI 1664 - HC - Indian Laws

Compulsory retirement set aside for procedural breaches: no ICC report or chance to respond, violating Sections 9 and 13

Manonmanium Sundaranar University Versus Dr. P. Govindaraju, The Internal Complaints Committee, Dr. Beaulah Shekhar, Mrs. R. Shridevi

HC quashed the compulsory retirement order imposed by the University and dismissed the appeal. The court found procedural breaches: the accused professor ... Quashing the order of compulsory retirement passed by the first respondent University - delinquent was not given any opportunity to rebut the statement of the victims - Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 - HELD THAT:- The delinquent who was a professor in the appellant University faced a charge of sexual harassment of his research scholar. The University authorities have received a compact disk said to contain some audio conversation between the delinquent and the victim and based upon the same, a preliminary enquiry was conducted by three senior professors of the the University. The said Committee recommended the University authority to take suitable action as against the delinquent. As per Service Rules applicable to delinquent, the enquiry report should be furnished to him and explanation should be called for. Section 13 of Central Act 14 of 2013 also contemplates that the enquiry report should be made available to the victim as well as the delinquent. However, in the present case, neither a copy of the report was furnished nor an explanation was called for from the delinquent. Hence, there is a clear violation of Section 13 of the Act - The alleged misconduct on the part of the delinquent is said to have taken place in the month of January 2018. The complaint lodged by the victim is dated 17.10.2018. As contemplated under Section 9 of the Central Act 14 of 2013, the complaint should be lodged within a period of three months from the date of the incidents and in a case of series of incidents within a period of three months from the date of last incident. Though such a complaint can be received after a period of three months, as per second proviso to Section 9 of the Act, no finding has been recorded by the ICC for entertaining the complaint beyond a period of three months. Admittedly, there is no indication in the complaint dated 17.10.2018 about the date of last incident. There is no finding by the ICC about the date of last incident. Hence, it is clear that the incident is said to have taken place only in the month of January 2018 and the complaint is said to have been lodged after 9 months. It is evident that the complaint is clearly beyond three months and the same should not have been entertained by the University authorities. Independently, a departmental/regular enquiry as per the service rules have to be conducted. The Hon'ble Supreme Court has further held that a regular enquiry or departmental action as per the service rules is also indispensable so as to enable the employee to indicate his position and establish his innocence. In the present case, the Syndicate has passed a resolution to place the delinquent on compulsory retirement solely on the basis of report of ICC Committee. The order communicating the said resolution also solely relied upon the enquiry report of the ICC Committee for placing the delinquent on compulsory retirement from service. No independent departmental enquiry has been conducted as per service rules applicable to the appellant University in order to prove the alleged misconduct of the delinquent. The mandatory statutory provisions of Central Act 14 of 2013 namely Sections 9,11, 13 and rule 7 have been violated as discussed above. No independent departmental proceedings have been conducted - there are no illegality or irregularity in the order of the learned Single Judge in setting aside the order of compulsory retirement. Appeal dismissed. ISSUES PRESENTED AND CONSIDERED 1. Whether initiation of ICC proceedings and constitution of the Internal Complaints Committee without a prior written complaint by the aggrieved woman complies with Section 9 of the Sexual Harassment Act and is legally sustainable. 2. Whether the complaint lodged after a delay (alleged incidents in January; complaint in October) is barred by limitation under Section 9 and whether the ICC properly recorded reasons to entertain a delayed complaint. 3. Whether the ICC and University complied with the requirement that an inquiry by the ICC be conducted in accordance with the applicable Service Rules (Section 11), including issuance of a charge memo, personal hearing, supply of materials (complaint, compact disk) and subsequent furnishing of the inquiry report and calling for explanation (Section 13 and Rule 7). 4. Whether reliance solely on the ICC report to impose a stigmatic punishment (compulsory retirement) without conducting an independent departmental/regular inquiry under Service Rules is permissible. 5. Whether alleged procedural lacunae (non-supply of complaint/CD/report; absence of charge memo; no explanation called for) amount to violation of principles of natural justice sufficient to vitiate the disciplinary order, and whether any admission by the delinquent (as recorded) cures those defects. ISSUE-WISE DETAILED ANALYSIS Issue 1: Validity of constituting ICC and initiating proceedings without a prior written complaint (Section 9) Legal framework: Section 9 requires that an aggrieved woman make a complaint in writing to the Internal Committee; upon receipt of such complaint an inquiry is to be undertaken. Precedent treatment: The Court relies on higher-court authorities recognizing that ICC inquiry must ordinarily follow receipt of a written complaint and that constitution/participation of ICC cannot confer jurisdiction where no complaint exists. Interpretation and reasoning: The record shows ICC was constituted and met prior to receipt of the victim's written complaint; the complaint bears a date on or after constitution. The Court interprets Section 9 as requiring the ICC process to be initiated on the basis of a written complaint and not suo motu or solely on a third-party/anonymous communication. Constitution of ICC prior to a written complaint renders the initiation legally unsustainable. Ratio vs. Obiter: Ratio - where ICC is constituted and inquiry initiated without the statutorily required written complaint, the proceedings lack the foundation required by Section 9 and are open to challenge. Conclusion: The ICC proceedings in the present matter were improperly initiated because the Committee was constituted and began inquiry before a written complaint by the aggrieved woman had been lodged. Issue 2: Limitation under Section 9 - delay in lodging complaint and absence of recorded satisfaction for condonation Legal framework: Section 9 prescribes a three-month limitation from date of incident (or last incident in case of series); a proviso permits condonation of delay with recorded reasons. Precedent treatment: The Court follows established principle that the ICC must record reasons before entertaining delayed complaints beyond the statutory period. Interpretation and reasoning: The alleged incidents occurred in January; complaint dated October-well beyond three months. No finding or recorded satisfaction by the ICC justifying condonation of delay and no indication of date of last incident. Therefore the complaint was time-barred and improperly entertained. Ratio vs. Obiter: Ratio - entertaining a delayed complaint without recording the statutory satisfaction/ reasons is impermissible and vitiates the enquiry foundation. Conclusion: The complaint was barred by limitation and the ICC failed to record any requisite satisfaction to entertain a delayed complaint; the enquiry should not have proceeded on that basis. Issue 3: Compliance with Section 11 and applicable Service Rules - requirement of charge memo, personal hearing, supply of materials, report and opportunity to explain Legal framework: Section 11 mandates that ICC inquiry be in accordance with service rules applicable to the respondent; Section 13 and Rule 7 require supply of complaint, materials and making the inquiry report available to both parties and calling for explanation before imposing punishment. Precedent treatment: The Court follows authority that ICC proceedings are not merely preliminary but must be consonant with service rules; failure to follow service rules and statutory supply/notice provisions may vitiate disciplinary outcomes. Interpretation and reasoning: Applicable University statute required reduction of misconduct to a charge memo, grant of personal hearing, furnishing of enquiry report and calling for explanation prior to imposing punishment. None of these steps were followed: no charge memo, the compact disk requested by the delinquent was not supplied before hearing, the complaint was not furnished as required, and the enquiry report was not supplied or explanation called for before compulsory retirement was imposed. The Court treats these omissions as clear statutory non-compliance. Ratio vs. Obiter: Ratio - where statute/service rules require specific procedural steps for disciplinary inquiry, ICC/authority must follow them; failure to do so constitutes illegality and vitiates punitive action. Conclusion: The inquiry and subsequent disciplinary process did not comply with Section 11, Section 13 and Rule 7 and with the applicable Service Rules; this procedural non-compliance invalidates the disciplinary outcome. Issue 4: Reliance solely on ICC report to impose stigmatic punishment without departmental/regular inquiry Legal framework: Disciplinary/service jurisprudence requires that stigmatic punishments follow a regular inquiry under service rules; ICC's report cannot alone be the basis for such punishment without departmental proceedings. Precedent treatment: The Court applies higher-court jurisprudence holding that a stigmatic order issued without a departmental/regular inquiry under service rules is illegal and that ICC report cannot be the sole basis for such punishment. Interpretation and reasoning: Syndicate placed the respondent on compulsory retirement solely on the basis of the ICC report; no independent departmental inquiry under service rules was conducted. The Court reasons that this contravenes the requirement of a regular inquiry to vindicate rights of the employee and to enable him to establish innocence. Ratio vs. Obiter: Ratio - a stigmatic disciplinary order based only on ICC findings, without a departmental/regular inquiry as per service rules, is unlawful. Conclusion: The compulsory retirement order was invalid because it was founded solely on the ICC report without conducting the mandatory departmental/regular inquiry under the applicable service rules. Issue 5: Effect of procedural defects and alleged admissions on principles of natural justice Legal framework: Principles of natural justice require notice, supply of material relied upon, opportunity to be heard, and provision of inquiry report with chance to explain before adverse stigmatic action; established authority holds that non-supply vitiates proceedings only if real prejudice is shown, but adherence to service rule steps is mandatory where statute prescribes them. Precedent treatment: The Court considers authority that non-supply of inquiry material does not automatically vitiate proceedings unless prejudice is demonstrated, but it places this principle in the context of the mandatory service/statutory prescription for issuing charge memo and supplying report and materials. Interpretation and reasoning: Although the delinquent made a statement in the ICC (denying initiation of conduct and asserting he only responded), and an answer suggested recognition of voices on the CD, the Court finds that admitted or ambiguous statements before an ICC do not cure the statutory requirements of charge memo, supply of complaint and materials, formal departmental inquiry, or the right to explanation post-report. The Court also notes that where misconduct is denied, strict adherence to natural justice and service rules is imperative. The allegations of admission were insufficient to negate the statutory procedural lapses. Ratio vs. Obiter: Ratio - admissions recorded in an ICC do not obviate the statutory service-rule protections and procedural mandates; procedural defects that are mandatory under statute/service rules cannot be cured by informal admissions absent clear record of consenting waiver and absence of prejudice. Conclusion: The procedural defects amounted to violation of natural justice and statutory/service-rule mandates; the limited statements attributed to the delinquent before the ICC did not cure those defects nor justify the stigmatic penalty. Final Court Conclusion (integrated) The Court confirmed the Single Judge's order setting aside the compulsory retirement. The statutory provisions (Sections 9, 11, 13 and Rule 7) and applicable service rules were violated: (a) ICC was constituted and proceedings initiated without a prior written complaint; (b) the complaint was time-barred and no satisfaction was recorded to condone delay; (c) mandatory procedural steps (charge memo, supply of complaint and CD, furnishing of inquiry report, calling for explanation and conducting departmental/regular inquiry) were not followed; and (d) the syndicate relied solely on the ICC report to impose a stigmatic punishment without conducting a departmental inquiry. These defects rendered the compulsory retirement order illegal and unsustainable.