Kumar Rajesh Chandra, Member (A)
1. The applicant, who is Professor & Head of Radio diagnosis and Dean (Academics), All India Institute of Medical Sciences, Bhopal, seeks to assail the orders dated 29.1.2021/15.1.2021 (Annexure A-1) alongwith the minutes of Internal Complaints Committee (ICC), which made certain recommendations against the applicant.
2. In brief, the case of the applicant is that the applicant was initially appointed as Assistant Professor w.e.f. 4.8.1989 in the State Government of Madhya Pradesh after going through due selection process. After requisite years of service, he was promoted as Associate Professor w.e.f. 31.3.1996 and Professor and HoD of Radio Diagnosis Department, Gandhi Medical College, Bhopal w.e.f. 1.11.2005. In response to the advertisement issued by the AIIMS, Bhopal for the post of Professor Radio Diagnosis, the applicant applied for the said post and after going through selection process, he was appointed as Professor Radio Diagnosis for a period of two years by order dated 21.3.2013. On completion of successful probation, the applicant was confirmed on the post of Professor w.e.f. 15.5.2015. It is averred that the applicant has also been entrusted the charge of Dean (Academics) vide order dated 3.11.2020 on second occasion and prior to it, he was appointed as Dean (Academics) in AIIMS, Bhopal w.e.f. 11.7.2017 and he continued as such till 19.7.2018. It is alleged in the O.A. that during his second tenure as Dean (Academics), the respondent no.7 denounced and vocally criticized the appointment of the applicant as Dean saying that she would lodge a false and fictitious complaint before the ICC of AIIMS, Bhopal to teach a lesson to the applicant. Accordingly, the respondent no.7 lodged a complaint against the applicant before ICC on totally false and frivolous grounds. At this juncture, it is pertinent to note that the applicant took over the charge of Dean on 3.11.2020 and the complaint was lodged by the respondent no.7 on 6.11.2020 with two allegations viz. (i) during a meeting in Exam Section in Room 20 in the presence of Prof. Bartha, Mr. Benny, Dr. Karuna and Dr. Suryabhan Kokhande, the applicant asked the respondent no.7 to remove the rubber band from her pony tail, turn her head and display the haircut which the respondent no.7 had undergone recently and (ii) on 7th or 8th Sept.2020 during a conversation in her office, the applicant suddenly walked up to the door and bolted the door and again resumed the conversation which was intimidating act from a person of his stature.
3. On receipt of complaint from the respondent no.7, the applicant submitted his reply on 19.11.2020 stating therein that said complaint has been made with a view to ruin the status of the applicant and nothing else. Thereafter, the said complaint was investigated into by Dr. Bhavna Sharma, who is a Professor. It is averred that when the alleged incident took place, Professor Neelkamal Kapoor, HoD Pathology and Lab Medicine, Dr. Shashank Purwar and Professor Rajay N Bharashankar HoD, Physiology were present and they submitted a letter to the Chairman, ICC stating therein that incident which has been mentioned in the complaint dated 6.11.2020 did not occur. The applicant was given letter dated 23.12.2020 by Prof. Bhavna Sharma (respondent no.6) Chairman of ICC by means of which he was offered to examine the statements given by witnesses. It is alleged that the statements of these witnesses were recorded behind the applicant’s back and no opportunity was afforded to cross examine the witnesses. The applicant furnished his comments on these statements on 4.1.2021 and 13.1.2021 wherein the applicant has requested for permission to orally cross examine the witnesses. Ultimately, the applicant received a letter dated 29.1.2021 enclosing therewith a letter dated 15.1.2021 as well as preliminary enquiry report with recommendations of ICC. The Inquiry report concluded that with reference to the first incident ICC could not reach any definite conclusion by reason of inconsistent statement of witnesses, but in para 10, the second incident regarding the bolting of the door from inside was held to have been proved. The said recommendations have the approval of the President of AIIMS, Bhopal. It is also pleaded in the O.A. that the ICC has no right, authority and power to make any recommendations under Section 13(3)(1) of 2013 Act until and unless it arrives at the findings that the allegations leveled against the applicant have been proved. The applicant has also stated that the ICC has resorted to the ultimate action of Section 13(3)(i) of Sexual Harassment Act bypassing the mandatory requirement of hearing. Being aggrieved, the applicant preferred a representation before the authorities concerned by making certain grounds with a request that the recommendations as made by the ICC be quashed. Hence this O.A.
4. While entertaining this Original Application, this Tribunal has passed an interim order dated 8.3.2021 directing the respondents not to proceed further in pursuance to Annexure-1 till the next date of hearing, which has been extended from time to time.
5. The respondent nos. 1 to 4 have contested the claim of the applicant by filing detailed Reply along with an application for vacation of stay order wherein they have stated that the ICC was constituted as per the provisions of Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (in short POSH Act) vide Office Order dated 8.7.2017. The respondents have admitted that the applicant was 2nd time was appointed as Dean (Academics) as per order dated 3.11.2020. As per procedure, a copy of the report containing the recommendations was forwarded to the applicant after approval of the President, AIIMS, Bhopal, who is the competent authority. The respondents have also pleaded in their Reply that in compliance of Section 13(4) of the POSH Act, the President, AIIMS, Bhopal is under obligation to act upon the recommendations within sixty days from the date of receipt of letter dated 29.1.2022. They have reiterated that the due procedure as laid down in the POSH Act has been followed by the Director and the President, AIIMS, Bhopal after receipt of the report and the recommendations from the Chairperson of ICC. The reasons as explained by the applicant in his representation are devoid of merit and against the legal proposition and as such the same is not liable to be sustained. The respondents have also added that the action so taken by the respondents is legally valid and the same does not suffer from any infirmity or illegality, hence the O.A. deserves to be dismissed.
6. A separate Reply has been filed by the respondent no.5 whereby she has stated that the action so taken by the respondents are perfectly legal and valid by reiterating the averments as advanced by the respondent nos. 1 to 4 in their Reply and nothing new has been added.
7. The respondent no.6, who has been impleaded by name, has also filed her Reply stating therein that she has been unnecessarily impleaded as one of the respondents in the O.A. as she has nothing to do in the matter in her personal capacity. She has further stated that though she has been impleaded by name, but no malafide has been alleged in the O.A. against her and in absence thereof, no person can be impleaded by name. However, she has stated that the action taken by the respondents is perfectly legal and valid and the same does not suffer from any infirmity with a prayer that her name may be deleted from the array of the parties.
8. The applicant has filed separate Rejoinder to the Reply filed by the respondents wherein the applicant has stated that the action of the respondents is faulty one and also the same is not in accordance with rules and law on the subject by refuting the contentions so made by the Respondents in their Reply by affirming the averments as already made in the Original Application.
9. The applicant in para 5.14 of the O.A. has stated that the name of Law Officer has been deleted in the composition of members of ICC. In this regard, it is submitted that in Section 4 of POSH Act dealing with sub heading of Constitution of Internal Complaints Committee, no where it has been mentioned that the Law Officer is mandatorily to be included in the composition of Members of ICC and as such this plea of the applicant is not sustainable.
10. We have heard the learned counsel for both the parties at length and have also perused the pleadings available on record.
11. The moot question involved in this case is whether the instant O.A. is maintainable before this Tribunal against the recommendations of ICC, without passing any punishment by the disciplinary authority or not ?. The first limb of argument of the applicant is that chairman of ICC is junior to the applicant and as such the recommendations of ICC is faulty one. In this regard, we may refer the Office Memorandum dated 9.9.2016 issued by the Department of Personnel & Training wherein after referring the decision of Allahabad High Court in the case of Smt. Shobha Goswami Vs. State of U.P. & Others has observed as under:
“In my opinion, there is nothing in the scheme of the section which requires the lady member to be senior in rank to the officer against whom allegations of sexual harassment are brought. The language of Section 4 of the Act requires the lady member to be of a senior level.”
From the plain reading of the aforementioned O.M. it would be clear that no-where in the scheme provides that lady member to be senior in rank to the officer against whom allegations of sexual harassment has been leveled. As such, the argument of the applicant that the chairperson of the ICC is junior to him, is unfounded and hence the same is not legally sustainable in the eyes of law
12. On the point of malafide, learned counsel for the respondents has placed reliance on the decision rendered by Hon’ble Supreme Court in the case of Rajneesh Khajuria Vs. Wockhardt Limited & Another reported in (2020) 3 SCC 86 wherein after referring the judgment in the case of Union of India Vs. Ashok Kumar, it has been held that allegations of malafide are often more easily made than proved and the very seriousness of such allegations demands proof of a higher order of credibility. Further, mere allegations of bias/malafide does not hold good unless and until the same has been proved through documentary evidence. In the instant case, though malafides have been leveled against the respondents who have been impleaded by name, but no documentary evidence has been annexed in order to establish the malafide against them. In absence thereof, the allegations of malafide cannot be sustained.
13. On the point of sexual harassment, the learned counsel for the respondents has placed reliance on the decision of Hon’ble Supreme Court in the case of Medha Kotwal Lele & Others Vs. Union of India & Others reported in (2013) 1 SCC 297 wherein the Hon’ble Supreme Court has observed as under:-
“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 Civil Services Conduct Rules. In other words, the disciplinary authority shall treat the report/findings etc. of the Complaints Committee as the findings in a disciplinary inquiry 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.”
14. The identical question cropped up before the Hon’ble High Court of Delhi in Writ (C) 6538 of 2019 in the case of Dinesh Chandra Mishra Vs. Indian Council of Agriculture Research & Others decided on 31st May, 2019 wherein the Hon’ble Delhi High Court has been pleased to dismiss the Writ petition by affirming the judgment and order as passed by Principal Bench in O.A. No. 405 of 2019
15. As noted above, the applicant is governed by the CCS (CCA) Rules, which specifically provide that the enquiry conducted by the ICC would be treated as one held under Rule 14 of the CCS (CCA) Rules by an Inquiring Authority appointed by the Disciplinary authority and the same shall be acted upon in terms of Rule 14. The report of the ICC in respect of the applicant would be considered by the Disciplinary authority.
16. After this, Tribunal reserved the order on 6.4.2023; learned counsel for the applicant has produced a copy of judgment and order passed by Hon’ble High Court at Jabalpur in Misc. Petition No. 1048 of 2023 in re. Dr. Rajesh Malik (applicant herein) Vs. All India Institute of Science through its Executive Director & Others on 17.4.2023. On perusal of the same, it would reveal that the Hon’ble High Court has requested this Tribunal to decide the O.A. No. 183 of 2021 as expeditiously as possible.
17. We may also observe that it appears that no appeal has been filed by the applicant against the recommendations of ICC and not only that, no punishment has so far been awarded by the disciplinary authority pursuant to recommendations of ICC and as such the present O.A. is not maintainable at this stage.
19. In view of the discussions made hereinabove as well as legal proposition on the subject particularly in the case of Dinesh Chandra Mishra Vs. Indian Council of Agriculture Research & Others (supra), we are of the considered view that the instant O.A. is not legally maintainable at this stage and as such the same is liable to be dismissed. Ordered accordingly. Interim order, as passed earlier shall stand vacated. Parties are directed to bear their own costs.
