Delhi High Court
Indian Institute Of Technology Delhi & … vs Atul Kumar Mittal & Anr on 27 March, 2025
Author: Sachin Datta
Bench: Vibhu Bakhru, Sachin Datta
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on : 27.03.2025
+ LPA 190/2019
INDIAN INSTITUTE OF TECHNOLOGY DELHI & ANR.
....Appellants
Through: Mr Gourab Banerji, Senior Advocate
with Mr Arjun Mitra, Ms Raka
Chatterjee, Mr Rakesh Talukdar, Mr
Supreeth V. and Mr Mohit Pandey,
Advocates.
versus
ATUL KUMAR MITTAL ....Respondent
Through: Respondent in person.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MR. JUSTICE SACHIN DATTA
JUDGMENT
1. The present appeal assails a judgment dated 20.02.2019 passed in
W.P.(C) 9777/2017 whereby the inquiry into the allegations of sexual
harassment against the respondent, as well as the consequent penalty of
compulsory retirement has been set aside, and the appellant/s has been
directed to re-instate the respondent.
2. The inquiry against the respondent (professor at IIT, Delhi) was
conducted on account of certain complaints of sexual harassment received
by the institute. The factual background leading up to the filing of the
W.P.(C) 9777/2017, and the impugned order dated 20.02.2019 is set out
hereunder:
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FACTUAL BACKGROUND:
3. On 22.01.2013 a complaint was received by the Director, IIT Delhi
from a Ph.D scholar. By the said communication, the concerned Ph.D
scholar expressed certain apprehensions and sought change of guide for the
purpose of pursuing her Ph.D. Consequently, a fact finding committee was
formed to look into the complaint dated 22.01.2013. The Fact Finding
Committee submitted its report on 13.02.2013 based on interaction with the
complainant/Ph.D Scholar. The same was placed for consideration before
the Sexual Harassment Complaints Committee (hereinafter “SHCC”) on
26.02.2013.
4. During the said meeting, the SHCC took note of the fact that while the
Fact Finding Committee’s inquiry with regard to the complaint dated
22.01.2013 was going on, another complaint had been received on
30.01.2013 by another student adverting to some instance/s during the year
2004. It was decided by the SHCC to initiate an inquiry into the matter.
Pursuant thereto, a notice dated 18.03.2013 was served upon the respondent;
on 22.03.2013, the respondent sought time to file a detailed reply.
Subsequently, a detailed reply was submitted wherein the respondent sought
to controvert the allegations made against him and elaborate factual
submissions were made by the said respondent. It was also sought by the
respondent as under:
“In view of the above, I therefore request you to kindly provide me the
reasonable time alongwith the copies of all the documents relating to the
proceedings of the fact finding committee, and the basis on which the
inferences have been drawn by the committee.”
5. The matter came to be considered again in the meeting of the SHCC
on 25.03.2013. The minutes of the said meeting record as under:-
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“The Committee has already perused the complaints as well as
documents in support thereof at the time of directing Prof. A.K. Mittal to
submit his response. After perusing the response and the brief points of
defense raised by him the Committee after detailed deliberations was of
the view that at this stage no final merits of the case have to be given.
The requirement was to decided whether or not a regular inquiry has to
be instituted. Since this Committee is of the considered view that the
allegations and harassment are prima facie made out, a regular inquiry
should be instituted against Prof. A.K. Mittal and a charge sheet served
upon him in next 15 days after getting the same approved by disciplinary
authority.
Amongst various objections raised by Prof. A.K. Mittal that laid down
procedures have not been followed by preliminary Fact Finding
Committee, the Committee feels that since Prof. A.K. Mittal is going to
get an ample opportunity for defense, this objection does not sustain.
However, there are no hard and fast rules for laid down procedures
followed by preliminary Fact Finding Committee.”
6. Subsequently, another communication dated 02.04.2013 came to be
addressed by the respondent; the same reads as under:-
“To,
The Chairperson,
Sexual Harassment Complaint Committee
IIT Delhi,ar Madame,
Kindly refer to my earlier request by way of letter dated 25th March,
2013 requesting for further reasonable time to respond point wise
motivated allegations made against me tarnishing my image. I have not
heard from you on my request for granting me reasonable time to file
reply to your notice.
I have also requested that the scheduled meeting of the committee on 25th
March, 2013 was to consider my preliminary response, requesting copies
of all the documents relating to proceedings of the fact finding
committee, and the basis on which the inferences have been drawn by the
committee. Besides these, I further request to provide me copy of conduct
rules of the IIT Delhi under which proceedings were initiated.
While filing my detailed reply I will also bring on record the
developments pending inquiry about the motivated and false allegations
made by the complainant. Kindly, supply me the required documents asSignature Not Verified
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stated above and reasonable time (4 weeks after receipt of those
documents) so that I can present my point wise reply with evidences. I
have to produce witnesses to bring the truth on record about-allegations
in question and the conspiracy angle so. In the mean time, I have
received emails from two of my students, which relate to the pertinent
subject and are enclosed herewith for your kind perusal and attention.
I am anxiously waiting for your response for the grant of reasonable time
and making relevant documents available to me so that I can effectively
reply to your notice IITD/R/2013/AREG-425, dated 18/03/2013 as soon
as possible, and be relieved from deep mental stress and agony for no
fault on my part.
With regards,
Sd/-
Atul K. Mittal
Professor, Department of Civil Engineering.”
7. The respondent, while seeking the relevant document/s which, inter
alia, formed the basis of the conclusion/s drawn by the Fact Finding
Committee, also sought to produce certain documents in the form of
communication/s addressed by other Ph.D Scholar in support of his defence.
8. On 08.04.2013, the Office of Registrar, IIT (Delhi) issued a
communication, which reads as under:-
“The Sexual Harassment Complaint Committee in its meeting held on
25th March, 2013 has decided that a regular inquiry be initiated against
Prof. A.K. Mittal and a charge-sheet served upon him after getting it
approved from the competent authority.
Kindly find placed below a draft charge sheet prepared in consultation
with and duly vetted by Sh. Arjun Mitra, Legal Advisor. Since in this
case, Board of Governors is the disciplinary authority, it is requested to
get it approved from the Chairman, Board of Governors, IIT Delhi on
behalf of BOG.
Urgent Please”
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9. Subsequently, on 26.04.2013, a Memorandum was issued stating that
the Chairman Board of Governors proposes to hold an inquiry against Dr.
A.K. Mittal/the respondent. The said Memorandum reads as under:-
“MEMORANDUM
The Chairman, Board of Governors, proposes to hold an inquiry
against Dr. A.K. Mittal Professor under Rule 14 of the Central Civil
Services (CCA) Rules, 1965, Central Civil Services (Conduct) Rules,
1964 and Statute 13(9) of the Institute. The substance of imputations of
misconduct or misbehaviour in respect of which the inquiry is proposed
to be held is set out in the enclosed Statement of Articles of Charge
(Annexure-I). A statement of the imputations of misconduct or
misbehaviour in support of each Article of Charge is enclosed
(Annexure-II). A list of documents by which, and a list of witness by
whom, the articles of charge are proposed to be sustained are also
enclosed (Annexure-III & IV).
Dr. A.K. Mittal is directed to submit within 10 days of the receipt of this
Memorandum, a written statement of his defence and also state whether
he desires to be heard in person.
He is informed that an enquiry will be held only in respect of those
articles of charge as not admitted. He should, therefore, specifically
admit or deny each article of charge.
Dr. A.K. Mittal is further informed that if he does not submit his written
statement of defence on or before the date specified in para 2 above or
does not appear in person before the inquiring authority or otherwise
fails or refuses to comply with the orders or directions issued in
pursuance of the said Statute/relevant Rules, the Inquiring Authority may
hold the inquiry against him ex parte.
Attention of Dr. A.K. Mittal is invited to Rule 20 of the Central Civil
Services (Conduct) Rules, 1964, under which no Government servant
shall bring or attempt to bring any political or outside influence to bear
upon any superior authority to further his interest in respect of matters
pertaining to his service under the Government. If any representation is
received on his behalf from another person in respect of any matter dealt
with in these proceedings, it will be presumed that Dr. A.K.Mittal is
aware of such a representation and that it has been made at his instance
and action will be taken against him for violation of Rule 20 of the CCS
(Conduct) Rules, 1964.
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The receipt of this Memorandum may be acknowledged
(By order and in the name of Chairman Board of Governors)”
10. The Articles of Charge along with the statement of imputation of
misconduct, were enclosed with the said Memorandum.
11. In response, a detailed communication dated 07.05.2013 was
addressed by the respondent to the Chairman, Board of Governors, IIT
(Delhi). While making elaborate submissions on the merits of the allegations
against him, the respondent also objected to the fact that report of the Fact
Finding Committee had not been provided to him. It was also requested that
an authenticated copy of the SMS/messages which had been mentioned in
the Articles of Charge be provided to the respondent. Certain other
documents were also sought by the respondent.
12. Learned counsel for the appellant has emphasised that the
communication dated 07.05.2013 contained a statement of the respondent
that he would prefer “an open inquiry in conformity with the provisions of
the rules under which the inquiry is proposed to be held”.
13. Despite the aforesaid detailed communication/defence statement
dated 07.05.2013 of the respondent, a noting dated 09.05.2013 of the
Registrar of the Appellant No. 1, contains the following observations:-
“OFFICE OF THE REGISTRAR
A charge sheet was served upon Prof. A.K. Mittal, Dept. of Civil Eng.
vide Memo No. IITD/Estt.I/U-1/2013/IESI/1429 dated 26.04.2013. He
was required to submit a written statement of defense by 9-5-2013.
However, as inquired from Estt. I Section, his written statement of
defense has not yet been received in the section.”
14. Consequently, on 06.06.2013, an Office Memorandum was served on
the respondent stating as under:-
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“OFFICE MEMORANDUM
It has reference to Office Memorandum No. IITD/Estt.I/U-
1/2013/IES1/1429 dated 26.4.2013. Written statement of your defence
has not been received as yet.
It is again requested to submit your written statement of defence
positively by 8.6.2013.”
15. On 19.06.2013, the acting Director of IIT, Delhi sent a
communication to the Chairman, Board of Governors, stating as under:-
“INDIAN INSTITUTE OF TECHNOLOGY DELHI
Subject: Charge-sheet against Prof. A.K. Mittal, Deptt. of Civil Engg.
With the approval of the Chairman, Board of Governors, Prof.
A.K. Mittal in the Department of Civil Engineering was served upon a
Charge-sheet vide Office Memorandum No. IITD/Estt.I/U-
1/2013/IES1/1429 dated 26.4.2013 with the direction to submit a written
statement of his defense within 10 days of the receipt this Memorandum.
He received this Memorandum on 29.4.2013.
In response to this, Prof. Mittal has submitted his reply dated
7.5.2013 addressed to Chairman, BOG, which is placed at Flag/A. He
has not admitted the charges and allegations contained in the said
Memorandum. Further stated that he would prefer an open inquiry in
conformity with the provisions of the Rules under which the inquiry is
proposed to be held, if after receipt of his written statement of defence,
the Chairman, BOG decide to proceed with the inquiry.
In view of the above, the reply of Prof. A.K. Mittal along with
Charge-sheet served upon him are placed below, for kind consideration
and appropriate decision.
The BOG is the appointing authority in such cases but in emergent
cases the Chairman, B.O.G. may exercise the powers of the Board under
Statute 7(4) and inform the Board of action taken by him for its approval.
The Chairman, BOG is therefore requested to advise further action to be
taken in the matter. The approval so accorded by the Chairman, BOG,
will be reported to BOG in its next meeting for ratification.”
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16. Subsequently, on 02.08.2013, a Board of Inquiry was constituted to
hold an inquiry. The same was done by a communication issued by the
Chairman, Board of Governors stating as under:-
“Sub: Constitution of Board of Inquiry
Having perused the Chargesheet and Reply of Prof. A.K. Mittal, I am of
the Considerate opinion that it would be required to initiate regular
inquiry proceedings as per rules so as to ascertain the facts in this case.
Let inquiry be conducted by a Board of Inquiry comprising Prof. Saroj
Mishra, Prof. Manjeet Jassal & Prof. T.C. Kandpal, Shri Nanak Chand,
Deputy Registrar may act as Presenting Officer.”
17. The order dated 12.08.2013, whereby the board of inquiry was
constituted, reads as under:-
” INDIAN INSTITUE OF TECHNOLOGY DELHI
HAUZ KHAS: NEW DELHI: 110016No. IITD/IES1/2013/U-I/2746 Date: 12.8.2013
ORDER
WHEREAS an inquiry under Rule 14 of the Central Civil
Services (CCA) Rules, 1965, Central Civil Services (Conduct)
Rules, 1964 and Statute 13(9) of the Institute is being held
against Prof. A.K. Mittal, Deptt. of Civil Engineering.
AND WHEREAS the Chairman, Board of Governors considers
that Board of Inquiry should be appointed to inquire into the
charges framed against Prof. A.K.Mittal, Deptt. of Civil
Engineering.
NOW, THEREFORE, the Chairman, Board of Governors in
exercise of the powers conferred under the said Statute, hereby
appoints the following faculty members as the Inquiry Authority
to inquire into the charges framed against the Prof. A.K. Mittal
Dept. of Civil Engineering:-
1. Prof. (Ms.) Saroj Mishra
2. Prof. (Ms.) Manjeet Jassal
3. Prof. T.C. Kandpal
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(By order and in the name of the Chairman, BOG)”
18. It is noticed that the Memorandum dated 26.04.2013 whereby an
inquiry under Rule 14 of the CCS (CCA) Rules, 1965 was proposed to be
initiated against the respondent, as also the constitution of the Board of
Inquiry (on 12.08.2013), was under orders of, and in the name of the
Chairman, Board of Governors of the Appellant No. 1. During this period
(26.04.2013-12.08.2013), the matter was not considered by the Board of
Governors (hereinafter ‘BOG’).
19. The proceedings before the Board of Inquiry took place only on
02.12.2013 and 06.12.2013. The proceeding dated 06.12.2013 records that
the charged officer (the respondent) submitted a list of 24 documents
required by him. It also records that the Inquiry Authority, after discussions
with the charged officer and the presenting officer regarding the relevance of
the various documents requested, issued certain direction/s with regard to
the request for documents, as detailed in the Annexure-II thereof.
20. In the said Annexure-II, it was, inter alia, recorded that “the Inquiry
authority decided that both the complainant and the charged officer should
submit an authenticated and verified document through service provider on
SMSs exchanged through messages and viber in terms of its verbatim
content with full details”.
21. On 23.01.2014, an order was issued by the Registrar of IIT, Delhi (in
the name of BOG) stating as under:-
“ORDER
WHEREAS an inquiry under Rule 14 of the Central Civil Services (CCA)
Rules, 1965, Central Civil Services (Conduct) Rules, 1964 and Statute
13(9) of the Institute is being held against Prof. A.K.Mittal, Deptt. of
Civil Engineering.
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AND WHEREAS the Chairman, Board of Governors has earlier vide
notification No. IITD/IES1/U-1/2746 dated 12.08.2013 appointed an
Inquiry Authority comprising of Prof. (Ms.) Saroj Mishra, Prof. (Ms.)
Manjeet Jassal and Prof. T.C. Kandpal to inquire into the charges
framed against Prof. A.K.Mittal.
AND WHEREAS the members of above referred Inquiry Authority have
requested to be allowed to withdraw from the Inquiry since the
procedures involved are complex.
NOW, THEREFORE, the Chairman, Board of Governors in exercise of
the powers conferred under the said Statute, hereby appoints Justice
(Retd.) Rekha Sharma as the Inquiry Officer to inquire into the charges
framed against Prof. A.K.Mittal, Deptt. of Civil Engineering.
(By order and in the name of the Chairman, BOG)”
22. In the meantime on 09.12.2013, The Sexual Harassment of Women at
Workplace: (Protection, Prohibition and Redressal) Act, 2013 (hereinafter
‘the POSH Act’), came into force. Section 11 of the same contemplates as
under:-
“11. Inquiry into complaint.– (1) Subject to the provisions of section 10,
the Internal Committee or the Local Committee, as the case may be, shall,
where the respondent is an employee, proceed to make inquiry into the
complaint in accordance with the provisions of the service rules applicable
to the respondent and where no such rules exist, in such manner as may be
prescribed or in case of a domestic worker, the Local Committee shall, if
prima facie case exist, forward the complaint to the police, within a period
of seven days for registering the case under section 509 of the Indian
Penal Code (45 of 1860), and any other relevant provisions of the said
Code where applicable……”
23. Pursuant to the coming into force of the aforesaid Act, an Internal
Complaints Committee (hereinafter “ICC”) for the Appellant No. 1 was
constituted on 17.01.2014, for year 2013-14. The said communication reads
as under:-
“In suppression of IITD notification IITD/ICDN/27/2013/1347 dated
30.9.2013 vide which a Sexual Harassment Complaint Committee was
constituted for the year 2013-14, the following Internal ComplaintsSignature Not Verified
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Committee is hereby constituted with immediate effect under the
provisions contained in Section 4 of the Sexual Harassment of Women at
Work Place (Prevention, Prohibition and Redressal) Act, 2013.
1. Pro. (Ms.) B. Bhaumik Chairperson
Elect. Engg. Dept.
2. Ms. Poonam Mahajan, Supdt. Member
Planning Unit.
3. Ms. Sanya Ohri, 3rd Yr. B.Tech Member
Student E.No. 2011TT10961,
Himadri Hostel
4. Mrs. Sudha Tiwari Member, NGO
Chairperson, Shakti Shalini,
6/30-B, Lower Ground, Kargil Park
Lane, Janpura-B, New Delhi- 110014
5. Sh. N.C. Chauhan, Dy. Registrar Member/Convener
The terms of reference, tenure etc. remain the same as notified earlier. ”
24. On 26.02.2014, the respondent wrote to the Director IIT, Delhi, inter
alia, requesting that his complaint be referred to the ICC constituted under
the POSH Act. Vide communication dated 27.03.2014, the respondent again
sent a communication to the Director IIT, Delhi raising a grievance that the
documents as sought by the respondent had not been supplied to him.
25. On 01.07.2014, the respondent wrote to the inquiry officer again
requesting that the matter be referred to the ICC for consideration. On
11.08.2014, a detailed inquiry report was submitted by the inquiry officer.
The said inquiry report, inter alia, notes that by virtue of Section 28 of the
POSH Act, the inquiry officer was not precluded from conducting the
inquiry. It was, inter alia, observed as under:
“It appears to me that Dr. Mittal is labouring under some
misconception with regard to my appointment to inquire into the
allegations made against him. It is true that under the ‘The SexualSignature Not Verified
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Harassment Act’ an Internal Complaint Committee is required to be
constituted with regard to complaints of sexual harassment at workplace.
But it is also true that this Act does not prohibit an inquiry to be
conducted under Rule 14 of the CCS (CCA) Rules, 1965, Central Civil
Services (Conduct) 1964, and Statue 13(9) of the Institute. As a matter of
fact Section 28 of the ‘The Sexual Harassment Act’ says that “Provisions
of this law will be in addition and not in derogation to any law for the
time being in force”. Reference in this regard may also be made to an
office memorandum of IIT Delhi, dated April 16th 1993 whereby, CCS
(Conduct) Rules 1964, CCS (CCA) Rules 1965, fundamental and
supplementary rules are made applicable to the employees of the
Institute.”
26. The inquiry officer concluded that the articles of charges against the
respondent were proved.
27. A writ petition being W.P.(C) 6059/2014 came to be filed by the
respondent which was disposed of vide order dated 15.09.2014 which reads
as under:-
“The learned counsel for the respondent states that a final decision on
the Inquiry Report has not been taken by the Board of
Governors/Deciding Authority. He states that the Board of
Governors/Deciding Authority shall give full opportunity to the petitioner
to be heard and make his representation including with respect to the
factual matrix of the case. He further states that after affording the
petitioner the aforesaid opportunity, a speaking order will be passed.
In view of the statement made by the learned counsel for the respondent,
I find no reason to interfere with the proceeding at this stage.
The petitioner shall appear before the Board of Governors on
03.11.2014. The petitioner shall also file all material, on which he seeks
to rely, at least one week prior to the hearing.
Needless to mention that the petitioner shall have liberty to apply in case
a cause so arises.
The petition is, accordingly, disposed of. ”
28. It later transpired that contrary to what had been apprised by the
learned counsel for the IIT on 15.09.2014 during the course of hearing of
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W.P.(C) 6059/2014, the Board of Directors had already taken a decision on
06.09.2014 on the inquiry report.
29. Consequently, an application came to be filed by the respondent in
which, eventually, a Single Judge of this Court vide order dated 30.04.2015
directed that the minutes of the meeting dated 06.09.2014 be effaced from
record and an opportunity of hearing with the documents be provided to the
respondent by the BOG. Elaborate directions were passed by the Court to
ensure that an opportunity of hearing was provided to the respondent during
the course of consideration of the matter by the BOG.
30. Consequently, a special meeting of BOG was convened on
22.07.2015. The respondent filed his written representation before BOG on
20.07.2015 and also presented his case before the Board. After deliberations,
the Board held that the inquiry report and the charges against the respondent
stood proved and found it appropriate to impose the major penalty of
“compulsory retirement” on the respondent. Accordingly, it was decided that
a show-cause notice would be issued to the respondent regarding proposed
penalty under Clause 39 of the IIT Delhi Statutes.
31. The show cause notice in terms of the decision taken by the BOG
during the meeting held on 22.07.2015, was issued on 21.10.2015. The
respondent filed his reply thereto.
32. On 04.04.2016, the BOG met and after considering the replies filed by
the respondent decided to impose a major penalty of compulsory retirement
on the respondent. An order was passed on 29.06.2016 recording as under:-
“ORDER
WHEREAS a charge sheet was served upon Prof. Atul Kumar
Mittla vide O.M. No. IITD/Estt.I/U-1/2013/IESI/1429 dated 26.04.2013Signature Not Verified
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under Rule 14 of the Central Civil Services (CCA) Rules 1965, Central
Civil Services (Conduct) Rules, 1964 and Statute 13(9) of the Institute.
AND WHEREAS Justice Rekha Sharma (Retd.) was appointed as
an Inquiry Officer vide No. IITD/ESI/2013/U-1/380 dated 23.01.2014 to
inquire the charges framed against Prof. Atul Kumar Mittal alleging that
while he was supervising his two Research Scholars: his behaviour with
them was inappropriate and unbecoming of a Guide.
AND WHEREAS the report of the Inquiry Officer was submitted
vide her letter dated 11.08.2014, holding that the charges against Prof.
Atul Kumar Mittal stand proved.
AND WHEREAS the Board of Governors, in compliance with the
directions of the Hon’ble High Court, considered that report of Inquiry
Officer and also heard Prof. A.K. Mittal on 22.07.2015 and decided to
accept the inquiry report and proposed to impose a major penalty of
compulsory retirement on Prof. A.K. Mittal.
AND WHEREAS as per the decision of the Board taken at its
meeting held on 22.07.2015, a Show Cause Notice was served upon Prof.
A.K. Mittal vide No. IITD/IESI/U-1/2015/2702 dated 21.10.2015 for
making representation against the proposed penalty of compulsory
retirement under the provision of Statue 13(9) of the IIT Delhi Statutes.
AND WHEREAS the reply dated 23.11.2015 and 20.01.2016
submitted by Prof. A.K.Mittal against the Show Cause Notice dated
21.10.2015 were considered by the Board at its meeting held on
04.04.2016.
AND WHEREAS after detailed deliberations, the Board resolved at
its meeting held on 04.04.2016 that its proposal to impose major penalty
of compulsory retirement on Prof. A.K. Mittal be confirmed and Prof.
A.K. Mittal be compulsorily retired with immediate effect and necessary
orders be issued accordingly.
NOW, THEREFORE, in compliance with the decision of the Board
of Governors as above, the major penalty of Compulsory Retirement is
hereby imposed on Prof. A.K. Mittal, Department of Civil. Engg., IIT
Delhi with immediate effect.”
33. A writ petition, being W.P.(C) 11720/2016, was filed by the
respondent against the imposition of major penalty of “compulsory
retirement”. The same was disposed of vide order dated 16.12.2016
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relegating the respondent to pursue his appellate remedy under Statue 13(10)
of the IIT Statutes, Delhi.
34. On 25.10.2017, the President of India in his capacity as the visitor of
IIT Delhi, and in exercise of power conferred under Statute 13(10) of the
Statutes of Institute, dismissed the appeal of the respondent. In this
background, W.P.(C) 9777/2017 was filed by the respondent against the
order of “compulsory retirement” and also against the dismissal of his
appeal.
THE IMPUGNED JUDGMENT:
35. The impugned judgment set asides the order dated 29.06.2016 (by
virtue of which the respondent has been compulsorily retired) and also the
order dated 25.10.2017 passed by the Visitor of IIT Delhi in exercise of its
Appellate jurisdiction.
36. It has been held in the impugned judgment that there were procedural
irregularities in the conduct of the inquiry as also substantive non-
compliance with the relevant provisions of the IIT Statutes, Delhi.
37. In particular, it was held that there was no occasion for the Chairman
Board of Governors, to exercise the powers of the Board as the
circumstances of the case did not attract the provisions of Statute 7(4).
Statute 7(4) reads as under:-
“7. The Chairman
……..
(4) In emergent cases the Chairman may exercise the powers of the
Board and inform the Board of the action taken by him for its approval.”
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38. The impugned judgment notes the timelines/sequences of events, in
particular, that fact that it was on 26.04.2013 that the Chairman, Board of
Governors proposed to hold an inquiry against the respondent; and it was
on 12.08.2013 that the Board of Inquiry was constituted. The first meeting
of the Board of Inquiry was held only on 02.12.2013 i.e. four months after
the date of its constitution. It was observed that “……….. Thus, it is
established that there was neither any emergency nor the emergency powers
under Statute 7(4) were available to be exercised in view of the judgment of
Prakash Kutik Choudhary Vs. Collector of Dhule, 1989 SCC Online Bom.
306.”
39. It was also held that the statement of defence dated 07.05.2013 of the
respondent was neither supplied to the inquiry authority nor to the
disciplinary authority. It was also observed that the record of the case placed
before the three member inquiry constituted on 12.08.2013 and later inquiry
committee constituted on 23.01.2014, did not contain the statement of
defence dated 07.05.2013 submitted by the respondent. It is noted in the
impugned judgment that the “Inquiry Authority in her report dated
11.08.2014 herself records that no counter version has been presented
before her with the result that she had no option but to believe the
truthfulness, authenticity and credibility of the statement made before her.
Thus, principles of natural justice was grossly violated by not taking into
consideration the statement of defence dated 07.05.2013.”
40. The impugned judgment also notes that various documents sought by
the respondent were not supplied. It is noticed that the three-member inquiry
committee, during the proceedings dated 06.12.2013, had issued directions
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for supply of the authenticated copy of the SMS/messages which had been
referred to in the Articles of Charge.
41. It is noticed in the impugned judgment that “…the Inquiry Authority
as well as the Board of Governors failed to take into account the fact that
the earlier Inquiry Authority had issued directions to the Disciplinary
Authority to provide the documents which the Disciplinary Authority did not
comply. Therefore, merely by change of Inquiry Authority this legal
obligation cannot be said to be whittled………”
42. The impugned judgment also notices that the inquiry authority, while
holding the respondent to be a serial offender, referred to the complaint of
another student which was not even adverted to in the Articles of Charge.
43. Paragraph 47 of the impugned judgment also noticed that the entire
inquiry report dated 11.08.2014 does not make any reference whatsoever to
any submissions having been advanced by the presenting officer.
44. Para 48 of the impugned judgment takes note of the fact that the
complaint dated 30.01.2013 was in respect of an incident of 2004 and during
the intervening period the complainant was in regular correspondence with
the respondent, till she was reprimanded for plagiarism by the respondent.
On this basis, it is observed that the complaint was highly belated and did
not inspire much confidence.
45. Para 49 of the impugned judgment notices that the inquiry should
have been conducted within the framework of the POSH Act and not by the
inquiry officer.
SUBMISSIONS ON BEHALF OF THE APPELLANT:-
46. Learned senior counsel for the appellant emphasized that in the
present case, the inquiry that was conducted against the respondent was
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consistent with the proviso to Rule 14 of the CCS (CCA) Rules, 1965. It is
emphasized that the inquiry was held based on the recommendation of the
SHCC. Attention is drawn to the fact that in the reply dated 07.05.2013
which was submitted by the respondent to the Chairman, Board of
Governors, it has been stated by the respondent himself that he preferred “an
open inquiry in conformity with the provisions of the Rules”. It is
emphasized that the respondent appeared before the Board of Inquiry on
various occasions, including on 02.12.2013 and 06.12.2013. In these
circumstances, it is contended that it was not open for the respondent to urge
that there was any irregularity in institution of an inquiry against him.
47. It is further submitted that the impugned judgment erred in reaching
the conclusion that issuance of charge-sheet ran afoul of the judgment of the
Supreme Court in Union of India v. B.V. Gopinath, (2014) 1 SCC 351, on
the basis that the charge-sheet dated 26.04.2013 was neither issued by the
BOG (Disciplinary Authority) nor approved by the Board. It is submitted
that in the judgment in B.V. Gopinath (supra) is distinguishable on a
number of grounds. In that case, there was a specific requirement that the
charge-sheet had to be approved by the Finance Minister and the concerned
employee was also protected under Article 311 of the Constitution.
However, it is submitted that such is not the situation in the present case.
48. The protection available to the employee/respondent in this instance is
to be found in Statute 13(9) of the IIT Statutes, Delhi which only provide
that certain major penalties cannot be provided to by any authority
subordinate to that by which he has been appointed.
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49. Reliance is also placed on the judgment of the Division Bench of the
Gauhati High Court in Dr. Brijesh Kumar Rai Vs. Indian Institute of
Technology, (2022) Gau LR 90.
50. Reference has also been made to the judgment of the Supreme Court
in P.V. Srinivasa Sastry Vs. Comptroller and Auditor General, (1993) 1
SCC 419 to contend that the disciplinary proceedings do not have to be
initiated by the appointing authority himself but can be initiated by any
authority/officer who is subordinate to the appointing authority but is
superior to the officer against whom the inquiry is to be conducted.
51. It is further submitted that the learned Single Judge erred in reaching
the conclusion that there was no occasion to invoke Statute 7(4) of the
Statute of IIT, Delhi. It is submitted that the situation required expeditious
intervention/action, and it was not expedient to wait for the BOG to
convene, given that as per prevalent practice, the BOG meets only four
times a year.
52. It is further submitted that since the BOG ratified the appointment of
Justice (Retired) Rekha Sharma as inquiry Officer, any alleged irregularity
in issuance of the charge-sheet or at any stage thereafter, stood ratified. It is
further submitted that the respondent consciously chose not to appear before
the inquiry committee presided by Justice (Retd.) Rekha Sharma and as
such, there is no credence in the allegations regarding denial of the
principles of natural justice.
53. It is submitted that there is no bar for non-member of the faculty to act
as inquiry officer. It is submitted that in any event, based on the order dated
15.09.2014 passed by this Court in C.M.APPL. 14757/2014 filed in W.P.(C)
6059/2014, the BOG carried out an elaborate exercise and passed a detailed
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order pursuant to its meeting dated 22.07.2015, where all submissions of the
respondent were considered.
54. It is submitted that the impugned judgment erred in assailing the
conclusion drawn by the inquiry officer on the merits of the matter; it is
submitted that judicial review is permissible only as regards the decision
making process and does not entail a review of intricate factual aspects. In
the circumstances, it is submitted that the impugned judgment is not in
conformity with the law and is required to be set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT:
55. The respondent, who appeared in person, submitted that it was
impermissible for the SHCC to delegate the task of carrying out the inquiry
to any other committee. It is submitted that the same is contrary to Vishaka
guidelines as also the POSH Act.
56. It was emphasized that the submissions made by the respondent
before the SHCC vide communications dated 22.03.2013, 25.03.2013,
02.04.2013 and 03.04.2013 were not considered by the SHCC or even
thereafter by the BOG. It is submitted that in the absence of a valid inquiry
by the SHCC, it was impermissible for any disciplinary action to be taken
against the respondent.
57. Reliance is placed upon the judgment of the Supreme Court in B.V.
Gopinath (supra) to contend that it was incumbent on the disciplinary
authority to itself personally apply its mind to the charge-sheet and the
findings of the inquiry. In the absence of the same, non-consideration of the
matter by the disciplinary authority at the appropriate stage is fatal to the
inquiry.
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58. It is emphasized that the written statement of defense submitted by the
respondent on 07.05.2013 was not considered by the SHCC or by the
disciplinary authority prior to the constitution of the Board of Inquiry or at
any stage thereafter.
59. It is submitted that it is incumbent on the disciplinary authority to
peruse both the charge-sheet as well as the statement of defense before
constituting any inquiry authority. It is further submitted that neither at the
stage of issuance of charge-sheet nor at the stage of constituting the inquiry
authority, the matter was considered by the disciplinary authority. It is
further submitted that the failure to provide essential documents caused
grave prejudice to the respondent and vitiates the inquiry. It is submitted
that the Board of Inquiry, during the proceedings dated 06.12.2013 observed
that “both the complainant and the charged officer should submit an
authenticated and verified document through service provider on SMSs
exchanged through messages and viber in terms of its verbatim content with
full details”.
60. It is submitted that the BOG while examining the matter on
22.07.2015 failed to consider the aforesaid relevant aspects and acted
mechanically in the matter without applying its mind as to the aforesaid
substantive and procedural lapses in the inquiry, which goes to the root of
the matter.
61. It is submitted that the learned Single Judge has examined the matter
in correct perspective and has rightly set aside the orders dated 29.06.2016
and 25.10.2017. It is submitted that the same does not warrant any
interference in these proceedings.
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REASONING AND FINDING:
62. Having considered the rival contentions of the parties, this Court finds
merit in the contentions of the respondent as regards the significant
procedural infractions in the conduct of inquiry into the complaints against
the respondent.
63. At the outset, it is noticed that in terms of the judgment rendered by
the Supreme Court in Vishaka and Others v. State of Rajasthan and
Others, (1997) 6 SCC 241, the Supreme Court has laid down binding Rules
and Guidelines for inquiring into complaints of sexual harassment. The same
contemplates setting up of a Complaints Committee, headed by a woman,
with at least half of its members being women. It is also laid down that such
a Complaints Committee would include an external member, either an NGO
or another body. The directions issued in Vishaka (supra) were mandatory
and binding, constituting law within the meaning of Article 141 of the
Constitution of India. The relevant portion of the said judgment is
reproduced as under –
“16. In view of the above, and the absence of enacted law to provide for
the effective enforcement of the basic human right of gender equality and
guarantee against sexual harassment and abuse, more particularly
against sexual harassment at workplaces, we lay down the guidelines and
norms specified hereinafter for due observance at all workplaces or
other institutions, until a legislation is enacted for the purpose. This is
done in exercise of the power available under Article 32 of
the Constitution for enforcement of the fundamental rights and it is
further emphasised that this would be treated as the law declared by this
Court under Article 141 of the Constitution.
17. The GUIDELINES and NORMS prescribed herein are as under:
HAVING REGARD to the definition of “human rights” in Section 2(d) of the
Protection of Human Rights Act, 1993,TAKING NOTE of the fact that the present civil and penal laws in India
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harassment in workplaces and that enactment of such legislation will
take considerable time,It is necessary and expedient for employers in workplaces as well as
other responsible persons or institutions to observe certain guidelines to
ensure the prevention of sexual harassment of women:
1. Duty of the employer or other responsible persons in workplaces and
other institutions:
It shall be the duty of the employer or other responsible persons in
workplaces or other institutions to prevent or deter the commission of
acts of sexual harassment and to provide the procedures for the
resolution, settlement or prosecution of acts of sexual harassment by
taking all steps required. ……..
………
5. Disciplinary action:
Where such conduct amounts to misconduct in employment as
defined by the relevant service rules, appropriate disciplinary action
should be initiated by the employer in accordance with those rules.
6. Complaint mechanism:
Whether or not such conduct constitutes an offence under law or a
breach of the service rules, an appropriate complaint mechanism should
be created in the employer’s organization for redress of the complaint
made by the victim. Such complaint mechanism should ensure time-
bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be
adequate to provide, where necessary, a Complaints Committee, a
special counsellor or other support service, including the maintenance of
confidentiality.
The Complaints Committee should be headed by a woman and not
less than half of its members should be women. Further, to prevent the
possibility of any undue pressure or influence from senior levels, such
Complaints Committee should involve a third party, either NGO or other
body who is familiar with the issue of sexual harassment.
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The Complaints Committee must make an annual report to the
Government Department concerned of the complaints and action taken
by them.
The employers and person-in-charge will also report on the compliance
with the aforesaid guidelines including on the reports of the Complaints
Committee to the Government Department……
……
11. The Central/State Governments are requested to consider
adopting suitable measures including legislation to ensure that the
guidelines laid down by this order are also observed by the employers in
private sector.
12. These guidelines will not prejudice any rights available under
the Protection of Human Rights Act, 1993.
18. Accordingly, we direct that the above guidelines and norms would be
strictly observed in all workplaces for the preservation and enforcement
of the right to gender equality of the working women. These directions
would be binding and enforceable in law until suitable legislation is
enacted to occupy the field. These writ petitions are disposed of,
accordingly.”
64. Subsequently, vide Order dated 26.4.2004, the Supreme Court in
Medha Kotwal Lele and Others v. Union of India and Others, Writ Petition
(Crl.) No. 173-177/1999, observed as under –
“2. Notice had been issued to several parties including the Governments
concerned and on getting appropriate responses from them and now
after hearing the learned Attorney General for UOI and the learned
counsel, we direct as follows:
“Complaints Committee as envisaged by the Supreme Court
in its judgment in Vishaka‘s case, SCC at p. 253, will be deemed
to be an inquiry authority for the purposes of the Central Civil
Services (Conduct) Rules, 1964 (hereinafter called the CCS
Rules) and the report of the Complaints Committee shall be
deemed to be an inquiry report under the CCS Rules. Thereafter
the disciplinary authority will act on the report in accordance
with the Rules.”
65. Pursuant to the directives of the Supreme Court in Vishaka (supra),
vide notification No.11012/5/2001-Estt.(A) dated 01.07.2004, a proviso was
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introduced in Rule 14 of the CCS (CCA) Rules, 1965, which states that in
respect of complaints relating to sexual harassment, the Complaints
Committee appointed in terms of the directions in Vishaka (supra) shall
deemed to be the Inquiring Authority appointed by the Disciplinary
Authority for the purpose of CCS (CCA) Rules, 1965.
66. The proviso to Rule 14(2), as inserted, reads as under:-
“Provided that where there is a complaint of sexual harassment within
the meaning of rule 3 C of the Central Civil Services (Conduct) Rules,
1964, the Complaints Committee established in each Ministry or
Department or Office for inquiring into such complaints, shall be deemed
to be the inquiring authority appointed by the disciplinary authority for
the purpose of these rules and the Complaints Committee shall hold, if
separate procedure has not been prescribed for the Complaints
Committee for holding the inquiry into the complaints of sexual
harassment, the inquiry as far as practicable in accordance with the
procedure laid down in these rules.”
67. Thus, it is unmistakably provided that where there is a complaint of
sexual harassment, the Complaints Committee shall be deemed to be the
Inquiring Authority appointed by the Disciplinary Authority.
68. In Sandeep Khurana v. Delhi Transco Ltd. and Ors., 2006 SCC
OnLine Del 1633, a single-judge bench of this Court, while determining the
procedure to be followed for taking disciplinary action on a complaint of
sexual harassment and the role of the “State Complaint Committee”, relied
on the judgment of the Supreme Court in Vishaka (supra), the Order dated
26.4.2004 in Medha Kotwal Lele and Others v. Union of India and Others,
Writ Petition (Crl.) No. 173-177/1999, and the proviso to Rule 14(2) and
made the following observation –
“26. In the present case the Departmental Complaint Committee has
exonerated the petitioner. The State Complaint Committee has found the
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Committee is deemed to be the Inquiring Authority then the petitioner
cannot be removed from service as the Departmental Complaint
Committee does not find him guilty. So far as the State Complaint
Committee is concerned, it was not the Inquiry Committee either by
virtue of the judgment in the case of Medha Kotwal Lele (Supra) nor by
virtue of the amendment in the Rules which has been extracted above.
******
30. When the rules are amended to say that the Complaint Committee as
envisaged in the Vishaka‘s case (Supra) would be deemed to be Inquiry
Authority for the purpose of CCS (CCA) Rules it is imperative that the
Complaint Committee proceeds according to CCS Rules and in the
manner in which an Inquiry Authority conducts its proceedings under the
said Rules. The Supreme Court never meant that the Complaint
Committees which were to function as Inquiry Authority under the CCS
(CCA) Rules could return a finding of guilt against a Government
servant without ever adopting the procedure of Rule 14 ibid, i.e., giving
him a charge-sheet, a memorandum delineating the allegations on which
the charges are framed along with other articles like list of witnesses and
the documents relied upon and then proceeding in the manner prescribed
under Rule 14 of ibid. The responsibility of the Complaint Committee,
by virtue of the judgment in Medha Kotwal Lele (Supra) case, has
immensely increased as it is now no more a fact finding Committee. It
has been converted into an Inquiring Authority and, therefore, has to
follow the procedure prescribed by Rule 14. The action taken cannot be
supported on the plea that although Rules are ignored the principles of
natural justice has been followed.
69. In Medha Kotwal Lele and Others v. Union of India and Others,
(2013) 1 SCC 297, it was observed as under :-
“44. In what we have discussed above, we are of the considered view that
guidelines in Vishaka [Vishaka v. State of Rajasthan, (1997) 6 SCC 241 :
1997 SCC (Cri) 932] should not remain symbolic and the following
further directions are necessary until legislative enactment on the subject
is in place:
44.1. The States and Union Territories which have not yet carried out
adequate and appropriate amendments in their respective Civil Services
Conduct Rules (by whatever name these Rules are called) shall do so
within two months from today by providing that the report of the
Complaints Committee shall be deemed to be an inquiry report in a
disciplinary action under such Civil Services Conduct Rules. In other
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against the delinquent employee and shall act on such report
accordingly. The findings and the report of the Complaints Committee
shall not be treated as a mere preliminary investigation or inquiry
leading to a disciplinary action but shall be treated as a finding/report in
an inquiry into the misconduct of the delinquent.
44.2. The States and Union Territories which have not carried out
amendments in the Industrial Employment (Standing Orders) Rules shall
now carry out amendments on the same lines, as noted above in para
44.1 within two months.
44.3. The States and Union Territories shall form adequate number of
Complaints Committees so as to ensure that they function at taluka level,
district level and State level. Those States and/or Union Territories which
have formed only one committee for the entire State shall now form
adequate number of Complaints Committees within two months from
today. Each of such Complaints Committees shall be headed by a woman
and as far as possible in such committees an independent member shall
be associated.”
70. In view of the above position, the Sexual Harassment Complaints
Committee (SHCC) constituted for IIT, Delhi was the forum for conducting
an inquiry pursuant to the complaint/s of sexual harassment against the
respondent. During its meeting on 26.02.2013, SHCC decided as under:-
“a) To initiate an inquiry into the matter (complaints against Prof. A.
K. Mittal by Ms. Tropita Piplai and Ms. Priyanka Jamwal).
b) To serve upon Prof. A. K. Mittal a summary of the complaints
within next seven days along with a true copy of the complaints.”
71. Subsequently, however, during the meeting of SHCC on 25.03.2013,
the SHCC, instead of proceeding with the inquiry on its own, decided as
under:-
“The Committee has already perused the complaints as well as
documents in support thereof at the time of directing Prof. A. K. Mittal to
submit his response. After perusing the response and the brief points of
defense raised by him the Committee after detailed deliberations was of
the view that at this stage no final merits of the case have to be given.
The requirement was to decided whether or not a regular inquiry has to
be instituted. Since this committee is of the considered view that theSignature Not Verified
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allegations and harassment are prima facie made out, a regular inquiry
should be instituted against .Prof. A.K. Mittal and a charge sheet served
upon him in next 15 days after getting the same approved by disciplinary
authority.
Amongst various objections raised by Prof. A.K. Mittal that the
laid down procedures have not been followed by preliminary Fact
Finding Committee, the Committee feels that since Prof. A. K. Mittal is
going to get an ample opportunity for defense, this objection does not
sustain. However, there are no hard and fast rules for laid down
procedures followed by preliminary Fact Finding Committee.
The Committee was informed by the chairperson and convener that
the complainant is under mental trauma and since documents adduced
during the process of Fact Finding Inquiry seems to have been shared by
many in the dept.
With this in view the committee was deferred concern with such
developments and was of the view that this should be suitably
communicated to Prof. A. K. Mittal that in case any instance of the
material being circulated amongst the dept. could be attributed to him,
such instances would leap to further consequences.
Having regard to the sensitivity of the issue and certain aspirations
about couple of paper having leaked already made the committee to
decided that it may be appropriate to keep the file under lock and key
with Security Officer.
As has been advised in the earlier meeting it is again reiterated by
the committee that the contents of the meeting should be kept
confidential.”
72. It was in the above background that a memorandum dated 26.04.2013
was served upon the respondent enclosing the Articles of Charge and
thereafter, a fresh ‘Board of Inquiry’ was constituted. This ‘Board of
Inquiry’ was distinct from the SHCC which [as per the Vishaka (supra)
guidelines, the judgment in Medha Kotwal lele (supra) and in terms of Rule
14(2)] was obliged to act as the ‘Inquiring Authority’ into the complaints of
sexual harassment against the respondent.
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73. In Dr. Sonali Badhe v. Ashish Chandra Singh and Others, 2015
SCC OnLine Del 14737, a Division bench of this Court has considered the
proviso of Rule 14 (2) of the CCS (CCA) Rules, 1965 and has held as
under:-
“10. We are informed that based on the recommendation of the
committee, a notice was issued to the respondent No. 1 by the
disciplinary authority granting leave to file a reply. At this stage, it
would be worthwhile to notice that pursuant to the directions issued by
the Supreme Court in the case of Vishaka v. State of Rajasthan, (1997) 6
SCC 241 : AIR 1997 SC 3011. Rule 14 of the CCS (CCA) Rules was
amended and the following proviso was added:–
“Provided that where there is a complaint of sexual harassment
within the meaning of Rule 3-C of the Central Civil Services
(Conduct) Rules, 1964, the Complaints Committee established in
each Ministry or Department or Office for inquiring into such
complaints, shall be deemed to be the Inquiring Authority
appointed by the Disciplinary Authority for the purpose of these
rules and the Complaints Committee shall hold, if separate
procedure has not been prescribed for the Complaints
Committee for holding the inquiry into the complaints of sexual
harassment, the inquiry as far as practicable in accordance with
the procedure laid down in these rules.”
11. As per the amendment (hereinafter referred to as the ‘Proviso’) the
Complaint Committee was deemed to be the inquiring authority
appointed by the disciplinary authority for the purpose of the rules and
the Complaints Committee was to hold in case no separate procedure
had been prescribed for the Complaints Committee for the inquiry as far
as practicable in accordance with the procedure laid down in these
Rules. In the case of Medha Kotwal Lele v. Union of India, (2004) 6 SLT
451, it was held by the Supreme Court of India that the report of the
Complaints Committee has to be treated as per Rule 14 of the CCS
(CCA) Rules as a final report in the enquiry. The relevant observations
read as under:
“Complaints Committee as envisaged by the Supreme Court in
its judgment in Vishakha‘s case, (1997) 6 SCC 241 at 253, will
be deemed to be an inquiry authority for the purposes of Central
Civil Services (Conduct) Rules, 1964 (hereinafter called the
CCS Rules) and the report of the Complaints Committee shall be
deemed to be an inquiry report under the CCS Rules. ThereafterSignature Not Verified
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the disciplinary authority will act on the report in accordance
with the rules.”
74. In, Tejinder Kaur v. Union of India & Ors., 2017 SCC OnLine Del
12221, this Court acknowledged the dual role of the Complaints Committee
and observed as under :-
16. Concededly, the complaints of sexual harassment and disciplinary
proceedings pursuant thereto have to be conducted in the manner as
specified under the CCS(CCA) Rules, 1965. Insofar as the Inquiring
Authority is concerned, there is no dispute that the inquiry has to be
conducted by the ICC. However, there is no specific provision in the
CCS(CCA) Rules, 1965 that indicates the manner as to how the
Disciplinary Authority has to proceed on receipt of the complaint.
****
20. It is apparent from the above that ICC has a dual role. It has to act as
an investigation agency in the first stage and as an Inquiring Authority, if
the Disciplinary Authority is of the opinion that disciplinary proceedings
be initiated against the officer accused. However, it is also necessary to
bear in mind that the above steps are only to serve as a guide and does
not replace the statutory provisions of the Act or the CCS(CCA) Rules,
1965.
21. Having stated the above, this court is of the view that ICC having
been specifically set up for examining the complaints of sexual
harassment, it would have been apposite to refer the complaint of Ms. X
to the concerned ICC for a preliminary investigation rather than
respondent no. 5.
75. In Aureliano Fernandes v. State of Goa and Others, 2023 SCC
OnLine SC 621, the Supreme Court considered a similar situation, wherein,
a complaint of sexual harassment after having been examined in the first
instance by the concerned Committee, became subject matter of an inquiry
by a former Judge of the Bombay High Court pursuant to a decision taken
by the Executive Council of the concerned Institute. However, subsequently,
the mandate of the Inquiry Officer was withdrawn in light of the order
passed by the Supreme Court in Medha Kotwal‘s case holding that the
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report of the Complaints Committee for Prevention of Sexual Harassment of
Women at Workplace shall be deemed to be the Inquiry Report under the
CCS (CCA) Rules which shall be binding on the Disciplinary Authority for
initiating disciplinary actions. In this context, it was observed by the
Supreme Court as under :-
“75. 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
‘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
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 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.
76. When the employer itself was oblivious to the remit of the 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.”
76. In Union of India v. Dilip Paul, 2023 SCC OnLine SC 1423, the
Supreme Court again took note of the directions issued in Medha Kotwal
Lele (supra) and observed as under :-
“72. This Court in Medha Kotwal Lele v. Union of India, (2013) 1 SCC
311, held that the complaints committee under the Vishaka GuidelinesSignature Not Verified
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shall be deemed to be the Inquiry Authority. The relevant portion is
reproduced below:–
“Complaints Committee as envisaged by the Supreme Court in its
judgment in Vishaka case (1997) 6 SCC 241 : 1997 SCC (Cri) 932, SCC
at p. 253, will be deemed to be an inquiry authority for the purposes of
the Central Civil Services (Conduct) Rules, 1964 (hereinafter call the
CCS Rules) and the report of the Complaints Committee shall be deemed
to be an inquiry report under the CCS Rules. Thereafter the disciplinary
authority will act on the report in accordance with the Rules.”
77. It is incorrect on the part of the appellant to suggest that there was any
acquiescence on the part of the respondent as to the derogation/deviation of
the procedure envisaged under Vishaka (supra), Medha Kotwal Lele (supra)
and proviso to Rule 14(2) of the CCS (CCA) Rules, 1965.
78. Much is sought to be made out from the statement of the respondent
in his communication dated 07.05.2013 (in response to the articles of
charge) that “I would prefer an open inquiry in conformity with the
provisions of the Rules under which the inquiry is proposed to be held, if
after receipt of my written statement of defence, you decide to proceed with
the inquiry”.
79. The said statement cannot be construed to mean that the respondent
has waived the requirements of proviso to Rule 14(2) of CCS (CCA) Rules,
1965 and/or the requirement of Section 11 of POSH Act which mandates
that the complaint is to be inquired by the concerned Complaints Committee
constituted for this purpose.
80. In fact, even when the inquiry was pending, the respondent did protest
the manner in which the prescribed procedure was being by-passed. In this
regards it is apposite to refer to a representation dated 26.02.2014 addressed
by the petitioner to the Director, Indian Institute of Technology, Delhi,
stating as under:-
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“The Internal Complaint Committee: is the only lawful committee to
investigate this case legally, because it has been constituted under the
Act realizing the sensitivity of the issue the Union Parliament wanted to
handle. Indian Parliament has considered the sensitivity of such issues
and chances of character assignation through false complaints has
made suitable provisions in the said Act. It has powers to administer
oath, this committee will be able to summon and obtain the evidence if
desired so. It is my right to demand comprehensive, investigation using
best available legal and institutional means. I do not think that there is
any other such strong lawful mechanism available with the institute.
Any deviation made by the Institute in violation of the Act in this regard
leads complex legal situation resulting into the violation of my rights as
well apart from the other complications.
Request: So, my humble appeal is that since an ICC has been
constituted by the Institute under the Sexual Harassment of Women at
Work Place (Prevention, Prohibition and Redressal) Act, 2013 which is
in existence even before the charge sheet was issued, the false
complaint against me should be immediately referred to this Committee
or a senior staff member/members of the Institute. You good self is
further requested to notify me the date and time when I am supposed to
appear before the ICC as duly notified under the Act for such inquiry by
the Institute.”
81. It is also incorrect to suggest that this aspect has been raised for the
first time only in these proceedings and was not subject matter of
consideration by the learned Single Judge. In this regard, reference is
apposite to paragraph 49 of the impugned order in which it has been
specifically observed as under :-
“49. It is pertinent to mention here that in the case of Vishaka (supra)
decided on 13.08.1997 it was clarified that the guidelines and norms
would be strictly observed in all work places for preservation and
enforcement of the right to gender equality of the working women. The
directions would be binding and enforceable in law until suitable
legislation is enacted to occupy the field. Admittedly, the alleged
incidents are after the decision of Vishaka (supra) and before the Sexual
Harassment Act, 2013 came into force. Thus, the case of the petitioner
would have been strictly considered under the Vishaka (supra)
guidelines instead of binding the inquiry officer to deal with the
allegations against the petitioner out of which the petitioner failed to get
the fair opportunity and place his case before the inquiry authority.”
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82. Even assuming that it was permissible for the appellant to by-pass the
Sexual Harassment Complaints Committee/ICC for the purpose of conduct
of inquiry, there an another lacunae inasmuch as the decision to hold an
inquiry under Rule 14 of the CCS (CCA) Rules, 1965, Central Civil
Services (Conduct) 1964 and Statute 13(9) of the IIT Statutes, Delhi was not
taken by the Board of Governors but instead by the Chairman of the Board
of Governors. This is evident from a perusal of the memorandum dated
26.04.2013, the opening lines of which record as under :-
“The Chairman, Board of Governors, proposed to hold an inquiry
against Dr. A. K. Mittal Professor under Rule 14 of the Central Civil
Services (CCA) Rule 1965, Central Civil Services (Conduct) Rules, 1964
and Statute 13(9) of the Institute.”
83. Moreover, the decision to constitute a Board of Inquiry was also at the
behest of the Chairman, Board of Governors. The relevant communication
in this regard issued by the Chairman, Board of Governors is as under:-
“Sub.: Constitution of Board of Inquiry
Having perused the Chargesheet and Reply of Prof. A. K. Mittal, I am of
the considerate opinion that it would be required to initiate regular
Inquiry proceedings as per rules so as to ascertain the facts in this case.
Let inquiry be conducted by a Board of Inquiry comprising Prof. Saroj
Mishra, Prof. Manjeet Jassal & Prof. T. C. Kandpal. Shri Nanak Chand,
Deputy Registrar may act as Presiding Officer.
Sd/-
Dr. Vijay Bhatkar
Chairman, BoG”
84. The subsequent order dated 12.08.2013 issued by the Registrar of IIT,
Delhi, also records as under :-
“INDIAN INSTITUTE OF TECHNOLOGY DELHI
HAUZ KHAS : NEW DELHI : 110016Signature Not Verified
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No. IITD/IES1/2013/U-I/2746 Date : 12.8.2013ORDER
WHEREAS an inquiry under Rule 14 of the Central Civil Services
(CCA) Rules, 1965, Central Civil Services (Conduct) Rules, 1964 and
Statute 13 (9) of the Institute is being held against Prof. A. K. Mittal,
Deptt. of Civil Engineering.
AND WHEREAS the Chairman, Board of Governors considers that
Board of Inquiry should be appointed to inquire into the charges framed
against Prof. A. K. Mittal, Deptt. of Civil Engineering.
NOW THEREFORE, the Chairman, Board of Governors in
exercise of the powers conferred under the said Statute, hereby appoints
the following faculty members as the Inquiry Authority to inquire into the
charges framed against Prof. A. K. Mittal, Deptt. of Civil Engineering :-
1. Prof. (Ms.) Saroj Mishra
2. Prof. (Ms.) Manjeet Jassal
3. Prof. T. C. Kandpal
(By order and in the name of the Chairman, BOG)
Sd/-
(Dr. Rakesh Kumar)
Registrar”
85. Admittedly, the Disciplinary Authority qua the respondent is the
Board of Governors of IIT. Section 11 of the Institutes of Technology Act,
1961, provides as under :-
“11. Board of Governors.–The Board of an Institute shall consist of the
following persons, namely:
(a) the Chairman, to be nominated by the Visitor;
(b) the Director, ex officio;
(c) one person to be nominated by the Government of each of the States
comprising the zone in which the Institute is situated, from among
persons who, in the opinion of that Government, are technologists or
industrialists of repute;
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(d) four persons having special knowledge or practical experience in
respect of education, engineering or science, to be nominated by the
Council; and
(e) two professors of the Institute, to be nominated by the Senate:
Explanation:- In this section, the expression “zone” means a zone
as for the time being demarcated by the All-India Council for Technical
Education for the purposes of this Act.”
86. It can be seen that the Board of Governors is a multi-member body
comprising inter alia of nominees of the Government of each of the States
comprising the zone in which the Institute is situated, four persons having
special knowledge or practical experience in respect of education,
engineering or science and two professors of the Institute, to be nominated
by the Senate.
87. Under Rule 14 of the CCS (CCA) Rules, it is clearly provided that the
charge-sheet has to be drawn up or cause to be drawn up by the
“Disciplinary Authority”. Moreover, Inquiry Authority is also to be
appointed by the “Disciplinary Authority”.
88. In the present case, the matter could not be considered by the
Disciplinary Authority; that is, the BOG, before issuance of the charge-sheet
and before constituting of an ‘Inquiring Authority’. Instead the Chairman,
BOG invoked the provisions of Statute 7(4) of the IIT Statutes, Delhi to
“exercise the powers of the Board”.
89. The learned Single Judge is right in noting that the relevant timelines
negate the contention that the present case fell within the category of cases
contemplated under Statute 7(4) [supra] so as to obviate the requirement of
the matter being considered by the BoG. In this regard, it is relevant that
even though the memorandum enclosing the Articles of Charge was issued
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on 26.04.2013, the ‘Inquiring Authority’ was not constituted until
12.08.2013 and proceedings before the ‘Board of Inquiry’ took place only
on 02.12.2013 and thereafter on 06.12.2013.
90. These timelines belie the contention that the matter could not await
due consideration by the Board of Governors. Reference is apposite to a
judgment of the Supreme Court in Union of India and Others v. B. V.
Gopinath, (2014) 1 SCC 351, wherein, it has been laid down that in the
context of disciplinary proceedings under Rule 14 of CCS (CCA) Rules,
1965, the charge-sheet has to be drawn up by the Disciplinary Authority
only upon approval by the Appointing Authority (the Finance Minister in
that case). Para 41 of the said judgment reads as under :-
“41. Disciplinary proceedings against the respondent herein were
initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly
lays down that where it is proposed to hold an inquiry against a
government servant under Rule 14 or Rule 15, the disciplinary
authority shall draw up or cause to be drawn up the charge-sheet. Rule
14(4) again mandates that the disciplinary authority shall deliver or
cause to be delivered to the government servant, a copy of the articles of
charge, the statement of the imputations of misconduct or misbehaviour
and the supporting documents including a list of witnesses by which each
article of charge is proposed to be proved. We are unable to interpret
this provision as suggested by the Additional Solicitor General, that once
the disciplinary authority approves the initiation of the disciplinary
proceedings, the charge-sheet can be drawn up by an authority other
than the disciplinary authority. This would destroy the underlying
protection guaranteed under Article 311(1) of the Constitution of India.
Such procedure would also do violence to the protective provisions
contained under Article 311(2) which ensures that no public servant is
dismissed, removed or suspended without following a fair procedure in
which he/she has been given a reasonable opportunity to meet the
allegations contained in the charge-sheet. Such a charge-sheet can only
be issued upon approval by the appointing authority i.e. Finance
Minister.”
91. Para 52 of the said judgment also reads as under :-
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“52. In our opinion, the submission of the learned Additional Solicitor
General is not factually correct. The primary submission of the
respondent was that the charge-sheet not having been issued by the
disciplinary authority is without authority of law and, therefore, non est
in the eye of the law. This plea of the respondent has been accepted by
CAT as also by the High Court. The action has been taken against the
respondent in Rule 14(3) of the CCS (CCA) Rules which enjoins the
disciplinary authority to draw up or cause to be drawn up the substance
of imputation of misconduct or misbehaviour into definite and distinct
articles of charges. The term “cause to be drawn up” does not mean that
the definite and distinct articles of charges once drawn up do not have to
be approved by the disciplinary authority. The term “cause to be drawn
up” merely refers to a delegation by the disciplinary authority to a
subordinate authority to perform the task of drawing up substance of
proposed “definite and distinct articles of charge-sheet”. These proposed
articles of charge would only be finalised upon approval by the
disciplinary authority. Undoubtedly, this Court in P.V. Srinivasa
Sastry v. CAG has held that Article 311(1) does not say that even the
departmental proceeding must be initiated only by the appointing
authority. However, at the same time it is pointed out that: (SCC p. 422,
para 4)“4. … However, it is open to the Union of India or a State
Government to make any rule prescribing that even the proceeding
against any delinquent officer shall be initiated by an officer not
subordinate to the appointing authority.”
It is further held that: (SCC p. 422, para 4)
“4. … Any such rule shall not be inconsistent with Article 311 of
the Constitution because it will amount to providing an additional
safeguard or protection to the holders of a civil post.”
92. The aforesaid findings were rendered in the context of Article 311(1)
of the Constitution of India which contemplates that no person who is a
member of a civil service of the Union or an all India Service can be
dismissed or removed by an authority subordinate to that by which he was
appointed.
93. It is notable that Statute 13(9) of the IIT Statutes, Delhi also similarly
provides as under :-
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“13. Terms and Conditions of Service of Permanent Employees
(9) The Director may place a member of the staff appointed at the
Institute under suspension –
…….
No order imposing on any member of the staff any of the penalties
specified at (i) to (iii) above shall be passed by any authority subordinate
to that by which he was appointed and unless the member of the staff
concerned has been given an opportunity to make a representation to the
Appointing Authority.”
94. As such, the observations in B. V. Gopinath (supra) squarely apply to
the facts of the present case. In terms thereof, it was incumbent on the
Disciplinary Authority to take the decision to hold an inquiry, and also to
issue/deliver the Articles of Charge.
95. Learned senior counsel for the appellant has sought to distinguish the
aforesaid case relying upon the judgment of Gauhati High Court in Dr.
Brijesh Kumar Rai v. Indian Institute of Technology and Ors., (2022) 2
Gau LR 90. In that case, the disciplinary action was occasioned on account
of an incident which took place on 02.08.2019 involving physical
altercation between two Assistant Professors in IIT, Gauhati which resulted
in cross FIRs being lodged in the Police Station. In that background, the
Director of the concerned Institute had issued a memorandum dated
13.08.2019 which contained the charges leveled against the concerned
Assistant Professor in that case. The decision to issue a memorandum was
taken by the Director invoking Clause 7(4) of the Statues governing IIT,
Gauhati. In that context, it was observed by the Gauhati High Court as
under:-
“19. In the present case, there cannot be any room for confusion as to
whether the Director can exercise the powers of the appointing authority
or not. There are certain emergent situations where these powers can be
exercised, which has already been referred above. Although these powers
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admitted position is that at the relevant time there was no Chairman and,
therefore, by reason of clause 9(16), the Director has these powers.
Clause 9(16) reads as under:-
“9.(16) In the event of the occurrence of any vacancy in the office
of the Chairman by reason of his death, resignation or otherwise or in
the event of Chairman being unable to discharge his functions owing to
absence, illness or any other cause the Director may discharge the
functions assigned to the Chairman under Statute 7.”
xxx xxx xxx
28. In any case, there is absolutely no ambiguity regarding the fact
that in an emergent situation, the Chairman and, in his absence, the
Director can exercise the powers of the Board of Governors. On this there
is no dispute. Whether there is any emergent situation or not is again a
matter which will depend upon the facts of the case. The present facts of
the case, in our opinion, were such where an immediate and emergent
action was required. Two professors of the Institute had allegedly
indulged in a fist fight in broad daylight in front of the students and other
members of the staff, which resulted in filing of FIR and cross-FIR against
each other. An immediate action was needed to be taken by the Director,
which has been done. Therefore, looking from all angles, we find
absolutely no anomaly in the exercise of powers by the Director of the
Institute. Hence, we find no merit in the present writ appeal.”
96. As can be seen, the facts of the present case are entirely different as
the present case did not involve any emergent situation of the kind that arose
in the facts of the case before the Gauhati High Court. Apart from the
timelines referred to above, in the present case (i) Article 1 of the charge
concerns alleged inappropriate behavior by the respondent with one of the
female students during the period October, 2012 till December, 2012 ; (ii)
Article 2 of the charge concerns the alleged inappropriate behavior of the
Respondent with another Ph.D student in January, 2004.
97. Given the time period to which the allegations in the Articles of
Charge pertain, it cannot be said that the present case qualified as an
emergent case so as to dispense with due consideration of the matter by the
Board of Governors before serving of the memorandum/charge-sheet on the
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respondent and/or before constituting an Inquiring Authority to inquire into
the same.
98. This Court is also not inclined to accept the appellant’s contention
that the ratification by the BOG, the articles of charge/s and/or the
appointment of the Inquiry Officer appointed on 23.1.2014, automatically
validates any purported irregularity in the issuance of the charge sheet or the
subsequent proceedings. Mere ratification of the appointment does not, in
itself, cure procedural lapses or confer legitimacy upon actions that may
have been flawed from the outset.
99. In this regard, reference is apposite to the judgment of the Supreme
Court in Sunny Abraham v. Union of India and Another, (2021) 20 SCC
12. Notably, in the said case, the Supreme Court considered its judgment in
B.V. Gopinath, (supra) and specifically dealt with the contention, as to
whether the ex post facto approval by the disciplinary authority to a charged
memorandum would cure the defect exposed in B.V. Gopinath, (supra).
The Supreme Court noted that B.V. Gopinath, (supra) clearly lays down that
a charge memorandum, without approval of the disciplinary authority, is
“non est” and goes beyond ‘remediable irregularity’. It was emphasized by
the Supreme Court that Rules 14(2) and 14(3) of the CCS (CCA) Rules,
1965 contemplate independent approval of the disciplinary authority at both
stages- for the purpose of initiation of inquiry and also for the purpose of the
charge memorandum. Any omission on this count would render the charged
memorandum fundamentally defective, not capable of being validated
retrospectively. It has been observed by the Supreme Court as under:-
“8. The Delhi High Court in the appellant’s case primarily examined the
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or charge memorandum could be given ex post facto approval or not.
The main distinguishing feature between the case of the appellant and
that decided in B.V. Gopinath is that in the facts of the latter judgment,
the subject charge memorandum did not have the ex post facto approval.
Stand of the respondents is that there is no bar on giving ex post facto
approval by the disciplinary authority to a charge memorandum and so
far as the present case is concerned, such approval cures the defect
exposed in Gopinath case. On behalf of the appellant, the expression
“non est” attributed to a charge memorandum lacking approval of the
disciplinary authority has been emphasised to repel the argument of the
respondent authorities.
15. The next question we shall address is as to whether there would be
any difference in the position of law in this case vis-à-vis B.V. Gopinath2.
In the latter authority, the charge memorandum without approval of the
disciplinary authority was held to be non est in a concluded proceeding.
The High Court has referred to the variants of the expression non est
used in two legal phrases in the judgment under appeal. In the context of
our jurisprudence, the term non est conveys the meaning of something
treated to be not in existence because of some legal lacuna in the process
of creation of the subject-instrument. It goes beyond a remediable
irregularity. That is how the Coordinate Bench has construed the impact
of not having approval of the disciplinary authority in issuing the charge
memorandum. In the event a legal instrument is deemed to be not in
existence, because of certain fundamental defect in its issuance,
subsequent approval cannot revive its existence and ratify acts done in
pursuance of such instrument, treating the same to be valid. The fact that
initiation of proceeding received approval of the disciplinary authority
could not lighten the obligation on the part of the employer (in this case
the Union of India) in complying with the requirement of sub-clause (3)
of Rule 14 of CCS (CCA), 1965. We have quoted the two relevant sub-
clauses earlier in this judgment. Sub-clauses (2) and (3) of Rule 14
contemplates independent approval of the disciplinary authority at both
stages — for initiation of enquiry and also for drawing up or to cause to
be drawn up the charge memorandum. In the event the requirement of
sub-clause (2) is complied with, not having the approval at the time of
issue of charge memorandum under sub-clause (3) would render the
charge memorandum fundamentally defective, not capable of being
validated retrospectively. What is non-existent in the eye of the law
cannot be revived retrospectively. Life cannot be breathed into the
stillborn charge memorandum. In our opinion, the approval for initiating
disciplinary proceeding and approval to a charge memorandum are two
divisible acts, each one requiring independent application of mind on the
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memorandum by the disciplinary authority, the same would not get cured
by the fact that such approval was there at the initial stage. This was the
argument on behalf of the authorities in B.V. Gopinath, as would be
evident from para 8 of the Report which we reproduce below : (SCC p.
358)
“8. Ms Jaising has elaborately explained the entire
procedure that is followed in each and every case before the
matter is put up before the Finance Minister for seeking
approval for initiation of the disciplinary proceedings.
According to the learned Additional Solicitor General, the
procedure followed ensures that entire material is placed
before the Finance Minister before a decision is taken to
initiate the departmental proceedings. She submits that
approval for initiation of the departmental proceedings
would also amount to approval of the charge memo.
According to the learned Additional Solicitor General, CAT
as well as the High Court7 had committed a grave error in
quashing the departmental proceedings against the
respondents, as the procedure for taking approval of the
disciplinary authority to initiate penalty proceeding is
comprehensive and involved decision making at every level of
the hierarchy.”
100. Apart from the aforesaid aspects, it is also noticed that the written
version/reply dated 07.05.2013 submitted by the respondent has not even
been taken note of in the report dated 11.08.2014 of the Inquiring Authority.
101. Learned senior counsel for the appellants seeks to justify the same on
the basis that the said Inquiring Authority inquired into the matter de novo.
However, the same is belied by a perusal of the order dated 23.01.2014,
whereby, the Chairman of Board of Governors appointed the single member
Inquiry Officer after the earlier ‘Inquiring Authority’ sought to withdraw.
The said order reads as under:-
INDIAN INSTITUTE OF TECHNOLOGY DELHI
HAUZ KHAS : NEW DELHI – 110016
No. I1TD/1ES1/2013/U-1/380
Date: 23.1.2014Signature Not Verified
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ORDERWHEREAS an inquiry under Rule 14 of the Central Civil Services
(CCA) Rules, 1965, Central Civil Services (Conduct).Rules, 1964 and
Statute 13 (9) of the Institute is being held against Prof. A.K. Mittal,
Deptt. of Civil Engineering.
AND WHEREAS the Chairman, Board of Governors has earlier
vide notification No.IITD/IES1/U-1/2746 dated 12.08.2013 appointed an
inquiry Authority comprising of Prof.(Ms.) Saroj Mishra, Prof. (Ms.)
Manjeet jassal and Prof. T.C. Kandpal to inquire into the charges framed
against Prof. A.K. Mittal.
AND WHEREAS the members of above referred Inquiry Authority
have requested to be allowed to withdraw from the Inquiry since the
procedures involved are complex.
NOW, THEREFORE, the Chairman, Board of Governors in
exercise of the powers conferred under the said Statute, hereby appoints
Justice (Retd.) Rekha Sharma as the Inquiry Officer to inquire-into the
charges framed against Prof, A.K. Mittal, Deptt. of Civil Engineering.
(By order and in the name of the Chairman, BOG)
Sd/-
(Dr. Rakesh Kumar)
Registrar
102. It can be seen that only the constitution of the ‘Inquiry Authority’ was
changed pursuant to the request of the members thereof that they be allowed
to withdraw from the inquiry “since the procedures involved are complex”.
103. This did not imply that the written statement/reply of the respondent
dated 07.05.2013 would not be taken into account by the Inquiry Officer
appointed on 23.01.2014.
104. In UOI and Others v. P. Sasi, 2012 SCC OnLine Del 5043, a
Division Bench of this Court, while determining whether the Disciplinary
Authority by virtue of his order dated 13.02.2004 (in that case) had directed
a ‘further’ inquiry or a de novo inquiry, observed as under :-
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“17. What is of importance is that the Supreme Court observed that
where there has not been a proper inquiry because some serious defect
has crept in the inquiry, the Disciplinary Authority may ask the Inquiry
Officer to record further evidence. Such a direction may also be given, as
observed by the Supreme Court, where some important witnesses were
not available at the time of inquiry or were not examined for some other
reason.
18. In the present case, it is evident that Mr Samuel Mathew had not been
examined by the first Inquiry Officer. It is an admitted position that Mr
Samuel Mathew is a key witness in this case. We have also noted from the
order sheet of 18.06.2003 of the first Inquiry Officer that Mr Samuel
Mathew had indeed contacted the Inquiry Officer and had told him his
contact number and had also indicated that he may be informed if he was
required. After that, the said Mr Samuel Mathew had not been contacted,
for whatever reason, as a result of which it can be safely inferred that Mr
Samuel Mathew did not at all know as to whether he was to appear
before the Inquiry Officer. Therefore, it cannot be said that Mr Samuel
Mathew had refused to appear before the first Inquiry Officer. The
Disciplinary Authority, as we have already pointed out above, was right
in recording that it was simply a case that Mr Samuel Mathew had not
appeared. In order to remove this lacuna/defect in the proceedings, the
Disciplinary Authority had directed further inquiry for recording the
evidence of Mr Samuel Mathew. It so happened that in the subsequent
round Mr Samuel Mathew did appear and his evidence was recorded.
From this fact also it would be clear that there could be no inference that
Mr Samuel Mathew was not willing to appear even in the first round or
had refused to do so.
19. We may also point out that because of the further inquiry directed by
the Disciplinary Authority, the charged officer also got an opportunity to
produce his own witness, namely, DW-2 Mr Gopal K. Nair, who was not
available in the earlier round. Therefore, all that the second Inquiry
Officer (Mr A. Sinha) had done was to continue the inquiry proceedings
further. In our view, he did not conduct any inquiry de novo and it was
merely a continuation of the earlier proceedings inasmuch as the
evidence of PW-2 Mr Samuel Mathew and that of DW-2 i.e., Mr Gopal K.
Nair was recorded. The evidence already on record in the first round was
also taken into consideration by Mr A. Sinha while submitting his report
dated 26.12.2006.”
105. Although in the aforementioned case, a ‘further inquiry’ was ordered
after the first inquiry report had been prepared. In the present case, the
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previous Inquiry Authority had not yet prepared its report. Before this could
happen, the members requested to withdraw, citing the complexity of the
procedures. Consequently, Justice (Retd.) Rekha Sharma was appointed as
the Inquiry Officer to continue the inquiry into the charges against the
respondent. This cannot be regarded as a de novo proceeding but rather a
continuation of the same inquiry, albeit by a different Inquiring Officer.
106. Furthermore, the order dated 23.1.2014 begins by stating, “An inquiry
under Rule 14 of the Central Civil Services (CCA) Rules, 1965, the Central
Civil Services (Conduct) Rules, 1964, and Statute 13(9) of the Institute is
being held against Prof. A.K. Mittal, Department of Civil Engineering,”
which further demonstrates that this was a case of reconstitution of the
inquiry authority, for the purpose of the inquiry “being held” rather than a
de-novo inquiry. As such, there appears no justification for not even noticing
the reply/defence statement dated 07.05.2013 submitted by the respondent.
107. Moreover, the report dated 11.08.2014 of the Single Member Inquiry
Officer takes note of the fact that the request of the respondent for supply of
necessary documents has not been acceded to and that this was an
outstanding grievance of the respondent.
108. It is notable that amongst the documents that were sought by the
respondent and for supply of which, the earlier Inquiry Authority passed an
order on 06.12.2013 included “authenticated and verified document through
service provider on SMSs exchanged through messages and viber in terms
of its verbatim content with full details”. The said documents were never
obtained from the concerned service provider. It was noticed in the Inquiry
Report dated 11.08.2014 as under :-
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“The complainant Tropita was asked as to how she could authenticate
the sms’es and the documents submitted by her. She stated that she has
retained the sms’es as were automatically generated on her phone. She
also produced her mobile phone before me where the messages were
found recorded. Furthermore, as per her, she even inquired from the
service provider if it could authenticate the sms’es that were exchanged
to which she received the following reply:-
“We regret to inform that we are unable to cater to your request,
to the send the sms details.”
However, in her oral statement before me she referred to her
complaint made to the Director and identified her signatures thereon
which is marked as Annexure-A. The details of the sms’es sent and
received on her mobile phone relied upon by her are collectively marked
as Annexure-B. She also referred to one sms which she had send to her
mother on December 6th 2012 and two emails which she received from
Dr. Mittal on December 18th 2012 and another on January 23rd 2013
after she had submitted her complaint. These documents are marked as
Annexure C&D respectively.”
109. It is noticed that the Inquiry Report dated 11.08.2014 takes note of the
statement of the complainant that the service provider had communicated its
inability to cater its request for authentication of the concerned SMS
messages. However the inquiry report does not disclose:-
i. any attempt to requisition the necessary information from the
service provider;
ii. specific reason/s as to why the course suggested in Annexure-2
of the order dated 06.12.2013 passed by the earlier ‘Inquiry
Authority’, was not required to be adhered to;
iii. any steps taken to secure/take custody of the concerned
electronic device/s and/or record the statement of the
complainant to the effect that the same was held in
uninterrupted custody of the complainant.
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In fact, the Inquiry Report dated 11.08.2014 despite noticing that the
respondent had raised a grievance before the previous ‘inquiry authority’
(constituted on 23.01.2014) to the effect that the requisite documents had not
been supplied to him, omits to specifically deal with and pronounce upon
this aspect of the matter.
110. With regard to non-supply of necessary documents, it has been
observed by the Supreme Court in State of Uttar Pradesh and Others v.
Saroj Kumar Sinha, (2010) 2 SCC 772, as under :-
“39. The proposition of law that a government employee facing a
departmental enquiry is entitled to all the relevant statements, documents
and other materials to enable him to have a reasonable opportunity to
defend himself in the departmental enquiry against the charges is too
well established to need any further reiteration. Nevertheless given the
facts of this case we may re-emphasise the law as stated by this Court
in State of Punjab v. Bhagat Ram: (SCC p. 156, paras 6-8)“6. The State contended that the respondent was not entitled to get
copies of statements. The reasoning of the State was that the
respondent was given the opportunity to cross-examine the witnesses
and during the cross-examination the respondent would have the
opportunity of confronting the witnesses with the statements. It is
contended that the synopsis was adequate to acquaint the respondent
with the gist of the evidence.
7. The meaning of a reasonable opportunity of showing cause
against the action proposed to be taken is that the government servant
is afforded a reasonable opportunity to defend himself against
charges on which inquiry is held. The government servant should be
given an opportunity to deny his guilt and establish his innocence. He
can do so when he is told what the charges against him are. He can do
so by cross-examining the witnesses produced against him. The object
of supplying statements is that the government servant will be able to
refer to the previous statements of the witnesses proposed to be
examined against the government servant. Unless the statements are
given to the government servant he will not be able to have an
effective and useful cross-examination.
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at the inquiry in support of the charges levelled against the
government servant. A synopsis does not satisfy the requirements of
giving the government servant a reasonable opportunity of showing
cause against the action proposed to be taken.”
40. We may also notice here that the counsel for the appellant sought to
argue that the respondent had even failed to give a reply to the show-
cause notice issued under Rule 9. The removal order, according to him,
was therefore justified. We are unable to accept the aforesaid
submission. The first enquiry report dated 3-8-2001, is clearly vitiated,
for the reasons stated earlier. The second enquiry report cannot legally
be termed as an enquiry report as it is a reiteration of the earlier enquiry
report. Asking the respondent to give reply to the enquiry report without
supply of the documents is to add insult to injury.
41. In our opinion the appellants have deliberately misconstrued the
directions issued by the High Court in Writ Petition No. 937 of 2003. In
terms of the aforesaid order the respondent was required to submit a
reply to the charge-sheet upon supply of the necessary document by the
appellant. It is for this reason that the High Court subsequently while
passing an interim order on 7-6-2004 in Writ Petition No. 793 of 2004
directed the appellant to ensure compliance of the order passed by the
Division Bench on 23-7-2003. In our opinion the actions of the inquiry
officers in preparing the reports ex parte without supplying the relevant
documents has resulted in miscarriage of justice to the respondent. The
conclusion is irresistible that the respondent has been denied a
reasonable opportunity to defend himself in the enquiry proceedings.
42. In our opinion, the appellants have miserably failed to give any
reasonable explanation as to why the documents have not been supplied
to the respondent. The Division Bench of the High Court, therefore, very
appropriately set aside the order of removal.”
111. Also, it is noted that the Inquiry Report dated 11.08.2014 refers
copiously to a complaint by another Ph.D student and conduct of the
respondent qua that student, even though the said complaint was never a
subject matter of the memorandum dated 26.04.2013 and the accompanying
Articles of Charge. This has also resulted in the effective denial of the
principles of natural justice.
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112. For all the above reasons, this Court finds no reason to interfere with
the impugned judgment of the learned Single Judge. However, as already
directed vide the impugned order, the Appellant/IIT, Delhi is at liberty to
conduct an inquiry afresh strictly as per the guidelines of the Supreme Court
in Vishaka (supra), Medha Kotwal Lele (supra) and as contemplated in
Section 11 of the POSH Act, 2013. It is made clear that this order is based
on infraction of procedural requirement/s and shall not be construed as an
expression of opinion of this Court on the merits of the allegations against
the respondent.
113. The present appeal is disposed of in the above terms.
SACHIN DATTA, J
VIBHU BAKHRU, J
MARCH 27, 2025
sv, at, r,uk
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