Aureliano Fernandes vs State of Goa and Others

12 hearings, most of them back to back, were conducted by the Committee – Appellant was unable to appear due to health reasons, however, he had sought extension of time, which was denied – Proceedings proceeded ex-parte and submitted its report establishing sexual harassment by the appellant – Committee recommended his termination from service – The Executive Council (EC) accepted the report submitted by the Committee and the appellant was placed under suspension with immediate effect – EC proposed to conduct an inquiry against him under Rule 14 of CCS (CCA) Rules – However, appellant was informed that in the light of an order passed by the Supreme Court in Medha Kotwal’s case, the report of the Complaints Committee for Prevention of Sexual Harassment of Women at Workplace shall be deemed to be an Inquiry Report under the CCS (CCA) Rules which shall be binding on the disciplinary authority for initiating disciplinary action against the government servant – Disciplinary Authority dismissed the appellant from service – Appellant filed writ petition before the High Court, which was dismissed – On appeal, held: It is an admitted position that the inquiry proceedings were aborted at the initial stage itself and it was the Report of the Committee submitted earlier, that was acted upon by the EC – The Committee itself was unclear as to the scope of its inquiry, the appellant cannot be blamed for harbouring an impression that the remit of the Committee was confined to fact finding alone and it was not discharging the functions of a disciplinary committee, as contemplated under the service Rules – It is also noteworthy that the time span prescribed under the CCS (CCA) Rules for concluding an inquiry is ordinarily within a period of six months from the date of receipt of the order of appointment – In the instant case, the entire process was wrapped up in flat 39 days – This shows the tearing hurry in which the Committee was to submit its Report – The undue haste demonstrated by the Committee for bringing the inquiry to a closure, cannot justify curtailment of the right of the appellant to a fair hearing – When the legitimacy of the decision taken is dependent on the fairness of the process and the process adopted itself became questionable, then the decision arrived at cannot withstand judicial scrutiny and is wide open to interference – The discretion vested in the Committee for conducting the inquiry has been exercised improperly, defying the principles of natural justice – As a consequence thereof, the impugned judgment upholding the decision taken by the EC of terminating the services of the appellant, duly endorsed by the Appellate Authority cannot be sustained.

Constitution of India – Art. 309 – Conditions of service – Scope – Art. 309 does not by itself provide for recruitment or conditions of service of Government servants, but confers this power on the appropriate legislature to make the laws and on the President and the Government of a State to make rules relating to these matters – However, any Act or Rule that violates the rights guaranteed to a government servant under Article 311, would be void – Similarly, such an Act or Rule would be treated as void if it violates any of the fundamental rights guaranteed under Part III of the Constitution. Constitution of India – Art. 310 – Doctrine of Pleasure – Article 310 embodies the “Doctrine of Pleasure” and in the context of Government servants, relates to their tenure of service – The origin of Government servants may be contractual, once appointed to the post or office, they acquire a status and their rights and obligations are no longer determined by the consent of both the parties, but are governed by the Statute or Statutory Rules. Constitution of India – Art. 311 – Manifestation of the Principle of Natural Justice – To provide a sense of security of tenure to Government servants, the framers of the Constitution have incorporated safeguards in respect of the punishment or dismissal or removal or reduction in their rank as provided for in Clauses (1) and (2) of Article 311 – At the same time, being mindful of the very same public interest and public good which does not permit that Government servants found to be corrupt, dishonest or inefficient be continued in service, a remedy is provided under the second proviso to Clause (2) of Article 311 whereunder their services can be dispensed with, without conducting a disciplinary inquiry. Constitution of India – Art.14 – A Bedrock of Principles of Natural Justice – Principles of natural justice that are reflected in Article 311, are not an empty incantation – They form the very bedrock of Article 14 and any violation of these principles tantamounts to a violation of Article 14 of the Constitution – Denial of the principles of natural justice to a public servant can invalidate a decision taken on the ground that it is hit by the vice of arbitrariness and would result in depriving a public servant of equal protection of law.

Principles/Doctrines – Principle of Natural Justice – Twin anchors : Nemo Judex In Causa Sua and Audi Alteram Partem – The twin anchors on which the principles of natural justice rest in the judicial process, whether quasi-judicial or administrative in nature, are Nemo Judex In Causa Sua, i.e., no person shall be a judge in his own cause as justice should not only be done, but should manifestly be seen to be done and Audi Alteram Partem, i.e. a person affected by a judicial, quasi-judicial or administrative action must be afforded an opportunity of hearing before any decision is taken. Administration of Justice – Fair action and impartiality in service jurisprudence – Courts interpret statutory provisions in sync with the aforesaid principles of natural justice on a premise that no statutory authority would violate the fundamental rights enshrined in the Constitution – Further when it comes to authorities that are expected to discharge judicial and quasi-judicial functions, the rule of audi alteram partem applies with equal force – Reasonableness infuses lifeblood in procedural matters, be it elements of the notice, the contents of the notice, the scope of inquiry, the material available or an adequate opportunity to rebut such material and all of this is to avoid miscarriage of justice at any stage.

Central Civil Services (Classification, Control and Appeal) Rules, 1965 – r. 14 – Expression “as far as is practicable” – The use of the expression “as far as is practicable” indicates a play in the joints available to the Complaints Committee to adopt a fair procedure that is feasible and elastic for conducting an inquiry in a sensitive matter like sexual harassment at the workplace, without compromising on the principles of natural justice.

Administration of Justice – Reasonableness into the procedural regime in Service Matter – The cardinal principle required to be borne in mind is that the person accused of misconduct must be informed of the case, must be supplied the evidence in support thereof and be given a reasonable opportunity to present his version before any adverse decision is taken – Similarly, the concerned employer is also expected to act fairly and adopt a procedure that is just, fair and reasonable – The whole purpose is to breathe reasonableness into the procedural regime but, the test of reasonableness cannot be abstract – It has to be pragmatic and grounded in the realities of the facts and circumstances of a case. Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 – To fulfil the promise that the PoSH Act holds out to working women all over the country – Appropriate directions issued.

Allowing the appeal and issuing directions, the Court HELD: 1. The plea of the appellant that the Committee understood the remit of its inquiry as a ‘fact-finding proceeding’, can be discerned from the contents of the letters dated 17th March 2009 and 20th April 2009 addressed to the appellant. The impression carried by the Committee that it was only required to submit a fact- finding report to the University was no different for the EC as is borne out from a perusal of the Memorandum dated 8th September 2009, issued by the Chairman of the EC who, after receiving the Committee’s Report, informed the appellant that an inquiry was proposed to be conducted against him under Rule 14 of the CCS (CCA) Rules. This was the first time when the respondents informed the appellant that the EC had decided to follow the procedure prescribed under the rules of drawing up a Statement of Articles of Charge, imputation of misconduct in support of each Article of Charge and other documents and had granted the appellant time to submit his reply in defence. The appellant did submit a reply. But it is an admitted position that the said inquiry proceedings were aborted at the initial stage itself and it was the Report of the Committee submitted earlier, that was acted upon by the EC in terms of a decision taken on 28th January 2010. when the Committee itself was unclear as to the scope of its inquiry, the appellant cannot be blamed for harbouring an impression that the remit of the Committee was confined to fact finding alone and it was not discharging the functions of a disciplinary committee, as contemplated under the service Rules. [Para 61][817-E-H; 818-A]

2. It is also noteworthy that the time span prescribed under the CCS (CCA) Rules for concluding an inquiry is ordinarily within a period of six months from the date of receipt of the order of appointment. But, here, the entire process was wrapped up in flat 39 days. This shows the tearing hurry in which the Committee was to submit its Report. One such glaring instance of the over anxiety to conclude the proceedings is apparent from the letter dated 5th May 2009, addressed by the Committee to the appellant informing him that the next date for filing his reply and for recording further depositions was 12th June 2009. Surprisingly, on the very next day, the Committee issued yet another letter advancing the said dates by claiming that an error had crept into the previous letter and informing the appellant that the date for filing his reply should be read as ‘12th May 2009’ and the date for recording further depositions should be read as ‘14th May, 2009’, thus moving the dates back by a whole month. Another egregious example of the hurry and scurry shown by the Committee can be gathered from the fact that on 20th May 2009, the Committee had written to the appellant giving him a last opportunity to present himself on 20th May 2009, not only to complete his deposition, but also to cross- examine the complainants and other witnesses. Simultaneously, the Committee forwarded six more depositions to the appellant and directed him to furnish his reply within 48 hours i.e. by 22nd May, 2009. [Para 63][818-E-H; 819-A]

3. The undue haste demonstrated by the Committee for bringing the inquiry to a closure, cannot justify curtailment of the right of the appellant to a fair hearing. The due process, an important facet of the principles of natural justice was seriously compromised due to the manner in which the Committee went about the task of conducting the inquiry proceedings. As noted above, when the proceedings, subject matter of the present appeal had taken place, the PoSH Act was nowhere on the horizon and the field was occupied by the Vishaka Guidelines. The said Guidelines also did not exclude application of the principles of natural justice and fair play in making procedural compliances. The silence in the Guidelines on this aspect could not have given a handle to the Committee to bypass the principles of natural justice and whittle down a reasonable opportunity of affording a fair hearing to the appellant. This Court has repeatedly observed that even when the rules are silent, principles of natural justice must be read into them. In its keen anxiety of being fair to the victims/complainants and wrap up the complaints expeditiously, the Committee has ended up being grossly unfair to the appellant. It has completely overlooked the cardinal principle that justice must not only be done, but should manifestly be seen to be done. The principles of audi alterem partem could not have been thrown to the winds in this cavalier manner. [Para 65][819-D-G]

4. 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. The intent and purpose of the proviso inserted in Rule 14(2) of CCS (CCA) Rules and Rule 3C of CCS (Conduct) Rules is that the procedure required to be adopted for conducting an inquiry into the complaint of sexual harassment that can lead to imposition of a major penalty under the Rules, must be fair, impartial and in line with the Rules. Pertinently, the emphasis on adhering to the principles of natural justice during an inquiry conducted by a Complaints Committee finds specific mention in Rule 7(4) of the subsequently enacted Rules of 2013. But the spirit behind the due process could never be suppressed or ignored even in the absence of the Statute or the Rules inasmuch as the principles of natural justice is the very essence of the decision-making process and must be read into every judicial or even a quasi-judicial proceeding. [Paras 67, 68][820-D-G]

5. This is not to say that the Committee even if described as an Inquiring authority, by virtue of the ruling in Medha Kotwal’s case and required to follow the procedure prescribed under Rule 14, was expected to conduct the inquiry as if it was a full-fledged trial. The expression used in the proviso to Rule 14(2), ‘as far as practicable’ has to be read and understood in a pragmatic manner. In any such proceedings initiated by the Disciplinary Authority, a calibrated balance would have to be struck between the rights of a victim of sexual harassment and those of the delinquent employee. At the same time, fairness in the procedure would have to be necessarily adopted in the interest of both sides. After all, what is sauce for the goose, is sauce for the gander. [Para 69][820-H; 821-A-B]

6. In fact, the glaring defects and the procedural lapses in the inquiry proceedings took place only thereafter, in the month of May, 2009, when 12 hearings, most of them back-to-back, were conducted by the Committee at a lightning speed. On the one hand, the Committee kept on forwarding to the appellant, depositions of some more complainants received later on and those of other witnesses and called upon him to furnish his reply and on the other hand, it directed him to come prepared to crossexamine the said complainants and witnesses as also record his further deposition, all in a span of one week. Even if the medical grounds taken by the appellant seemed suspect, the Committee ought to have given him reasonable time to prepare his defence, more so when his request for being represented through a lawyer had already been declined. It was all this undue anxiety that had led to short-circuiting the inquiry proceedings conducted by the Committee and damaging the very fairness of the process. [Para 71][821-E-H]

7. For the above reasons, the appellant cannot be faulted for questioning the process and its outcome. There is no doubt that matters of this nature are sensitive and have to be handled with care. The respondents had received as many as seventeen complaints from students levelling serious allegations of sexual harassment against the appellant. But that would not be a ground to give a complete go by to the procedural fairness of the inquiry required to be conducted, more so when the inquiry could lead to imposition of major penalty proceedings. When the legitimacy of the decision taken is dependent on the fairness of the process and the process adopted itself became questionable, then the decision arrived at cannot withstand judicial scrutiny and is wide open to interference. It is not without reason that it is said that a fair procedure alone can guarantee a fair outcome. In this case, the anxiety of the Committee of being fair to the victims of sexual harassment, has ended up causing them greater harm. [Para 72][822-A-C]

8. This Court is, therefore, of the opinion that the proceedings conducted by the Committee with effect from the month of May, 2009, fell short of the “as far as practicable” norm prescribed in the relevant Rules. The discretion vested in the Committee for conducting the inquiry has been exercised improperly, defying the principles of natural justice. As a consequence thereof, the impugned judgment upholding the decision taken by the EC of terminating the services of the appellant, duly endorsed by the Appellate Authority cannot be sustained and is accordingly quashed and set aside with the following directions: (i) The matter is remanded back to the Complaints Committee to take up the inquiry proceeding as they stood on 5 th May 2009; (ii) The Committee shall afford adequate opportunity to the appellant to defend himself; (iii) The appellant shall not seek any adjournment of the proceedings; (iv) A Report shall be submitted by the Committee to the Disciplinary Authority for appropriate orders; (v) Having regard to the long passage of time, the respondents are directed to complete the entire process within three months from the first date of hearing fixed by the Committee; (vi) The procedure to be followed by the Committee and the Disciplinary Authority shall be guided by the principles of natural justice; (vii) The Rules applied will be as were applicable at the relevant point of time; (viii) The decision taken by the Committee and the Disciplinary Authority shall be purely on merits and in accordance with law; (ix) The appellant will not be entitled to claim immediate reinstatement or back wages till the inquiry is completed and a decision is taken by the Disciplinary Authority. [Para 73][822-D-H; 823-A-B]

Maneka Gandhi v. Union of India and Another (1978)

1 SCC 248 : [1978] 2 SCR 621; Rustom Cavasjee

Cooper v. Union of India (1970) 1 SCC 248 : [1970] 3 SCR 530; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Others (1991) Supp (1) SCC

600 : [1990] 1Suppl. SCR 142; Union of India and Another v. Tulsiram Patel (1985) 3 SCC 398 : [1985] 2 Suppl. SCR 131 – followed.

Medha Kotwal Lele v. Union of India (2013) 1 SCC

297 : [2012] 9 SCR 895; Hira Nath Mishra and Others v. Principal, Rajendra Medical College, Ranchi and Another (1973) 1 SCC 805; P.D. Agrawal v. State Bank of India and Others (2006) 8 SCC 776 : [2006] 1 Suppl. SCR 454; Vishaka and Others v. State of Rajasthan and Others (1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404; A.K. Gopalan v. State of Madras (1950) SCC 228; Madhyamam Broadcasting Limited v. Union of India & Others (2023) SCC Online 366; A.K. Kraipak and Others v. Union of India and Others (1969) 2 SCC 262 : [1970] 1 SCR 457; In re: H.K. (All Infant) (1967) 1 All ER 226; Mangilal v. State of M.P. (2004) 2 SCC

447 : [2004] 1 SCR 1; Union of India v. Col. J.N. Sinha and Another (1970) 2 SCC 458 : [1971] 1 SCR 791; Swadeshi Cotton Mills v. Union of India (1981) 1 SCC

664 : [1981] 2 SCR 533; Medha Kotwal Lele and Others v. Union of India and Others (2013) 1 SCC 311; Dr. Vijaykumaran C.P.V. v. Central University of Kerala and Others, (2020) 12 SCC 426 : [2020] 3 SCR 374 – relied on.

Sandeep Khurana v. Delhi Transco Ltd. And Others ILR 2006 (11) Del 1313; Professor Giridhar Madras v. Indian Institute of Science represented by Chairman and Others (2019) SCC Online Kar 3508; Avinash Mishra v. Union of India 2014 SCC Online Del 1856 – referred to.