PoSH Act | Internal Complaint Committee Has To Make Attempt To Settle Matter By Conciliation; Matter Can Be Enquired Into As Per Service Rules Only If It Fails: Madhya Pradesh HC

The High Court further held that the matter has to be enquired into as per Service Rules only if the Committee fails in settling the matter.

The petitioner approached the High Court after being dismissed from the post of Assistant Professor in the Department of Materials and Metallurgical Engineering of Maulana Azad National Institute of Technology, Bhopal by way of punishment passed in a departmental enquiry which according to him was conducted in complete violation of principles of natural justice and contrary to the procedure prescribed under the law.

The Single-Judge Bench of Justice Sanjay Dwivedi said, “Only on the basis of complaint made and reply submitted by the respondents, the finding given by the Enquiry Committee cannot be given a seal of approval to prove the charges levelled against the delinquent. Not only this, but the statement of witnesses produced by the petitioner in writing was also not taken note of. ”

Senior Advocate Manoj Sharma appeared for the Petitioner while Advocate Yogesh Bhatnagar represented the Respondents.

As per the petitioner, respondent no.3, the senior most faculty in the Institution had some personal issues with him and was after him ever since he joined in the Department of respondent No.3 in the Institution. Even though the petitioner did not get any lab space he could get a DST project worth around 46 lakhs.

It was contended that as the third respondent was jealous he planned a conspiracy against the petitioner with the help of his major project students. Later respondent No.3 submitted that two female students came to his cabin to complain about the conduct of the petitioner. The Petitioner complained that instead of referring the matter to the Internal Complaint Committee (ICC), it was referred to respondent No.4 who was his female friend and as such, they started conspiracy against the petitioner. The Petitioner submitted that those complaints were not signed by any female student but was prepared by the male students maliciously claiming themselves to be the class representative and as such, representation was made to the Director of the Institution.

The Respondents, on the other hand, contended that the petition was barred by Section 29 of the National Institute of Technology Act, 2007 which provides that any dispute arising out of a contract between an Institute and any of its employees shall, at the request of the employee concerned or at the instance of the Institute be referred to a Tribunal of Arbitration consisting of one member appointed by the Institute, one member nominated by the employee, and an Umpire appointed by the Visitor.

The Bench observed that Section 29 does not preclude the petitioner from availing remedy available under Article 226 of the Constitution of India because it is the choice of an employee to refer a dispute to the Arbitration Tribunal, if he/she so desires. It was clear from the record that the petitioner being an employee had not made any request to refer the dispute to the Arbitration Tribunal and under such circumstances, it would not have come in his way to file a petition under Article 226.

Reference was also made to Section 10 which prescribes that the Internal Committee or a Local Committee before initiating any enquiry in the matter may try to settle the dispute by referring the matter for conciliation and thereafter enquiry shall be conducted as per Section 11 of the Act, 2013.

“The language used in the aforesaid provision makes it clear that the Committee is under obligation to make an attempt to settle the matter by way of conciliation and if it fails then only the matter has to be enquired into as per Service Rules. There is a complete violation of the provision of Sections 10 and 11 of the Act, 2013”, the Bench affirmed.

Coming to the facts of the case, the Bench noted that even after directing the respondents to produce the order-sheets of enquiry, they failed to show as to how and when opportunity was provided to the petitioner to cross-examine the complainants. Nothing was produced so as to ascertain whether the statements of complainants were recorded during the course of enquiry or not.The Bench was of the view that in absence of any statement of witnesses or an opportunity to cross-examine them, the procedure adopted by the respondents was unknown to law.

The High Court further observed, “Thus, it is clear that the respondents have not followed the principles of natural justice so as to ascertain that the charges levelled against the petitioner are found proved. The manner in which the enquiry was conducted and the procedure adopted by the respondents are unacceptable and contrary to law.”

From a perusal of order-sheets of enquiry, the Bench noticed that no procedure was followed by the respondents as provided under Rule 14 of Central Civil Services (Classification, Control & Appeal) Rules, 1965. “This Court can say that the enquiry is nothing but an eye wash because the same was conducted without following any procedure which had to be mandatorily followed. The witnesses did not physically appeared before the Enquiry Officer and no opportunity to cross-examine those witnesses is given to the delinquent, despite that, their statements taken otherwise, such an enquiry is no enquiry in the eyes of law and it is in clear violation of principles of natural justice”, it held.

According to the Bench, from the very inception respondents had not followed any valid procedure for conducting the enquiry or the requirement of provisions of the Act of 2013. Allowing the petition, the Bench set aside the suspension Orders.

Cause Title: Dr. Kali Charna Sabat v. UOI Through National Institute of Technology & Others [Case No. WRIT PETITION No. 10021 of 2024]

Appearance:

Petitioner: Senior Advocate Manoj Sharma, Advocate Lavanya Verma

Respondents: Advocate Yogesh Bhatnagar

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