Law Web: Whether sexual harassment complaint can be dropped if an aggrieved woman desire not to prosecute it?

Had the student been really aggrieved with the action of the petitioner then she ought to have taken steps in proper time to protest the same. On the contrary, it appears that there was no intention of the lady ever, to fight for her rights. Law provides enough scope and facility to an aggrieved woman to file a complaint either personally or through persons authorised by her. She sat tight over the matter for nearly two years and thereafter the alleged incident was brought to the forefront by

third parties, who neither had personal knowledge of the incident nor were witnesses to the incident. Reliance was placed on audio clippings, veracity of which have not been tested. It may be that the lady was threatened or intimidated not to proceed further in the matter. It is possible that the student was not advised and guided properly. But where the lady herself puts forth in writing that neither she nor her parents intend to proceed with the matter, then the desire of the lady has to be respected.

The Hon’ble Supreme Court in Dr. Vijayakumaran (supra) held that upon receipt of complaints from girl student of the University about sexual harassment in University campus, it was obligatory on the administration to refer such complaints to the ICC within the stipulated time period as pre-predicated in

Section 9 of the said Act. The same implies that the compliant of the lady and the time limit for filing such complaint both are equally important. The allegations against the petitioner have criminal connotations. No complaint was ever lodged before the police by any person alleging the incident. Without being convinced and satisfied with the documents, the University ought

not to have initiated any proceeding against the petitioner.

The submission of the University that the charge-sheet ought not to fail

automatically in the event the recommendation of ICC fails, cannot be accepted by

the Court. If the initial action of ICC cannot be supported, then obviously the

subsequent actions by the University are bound to fail. It is only on the basis of

the recommendation of ICC that the University initiated disciplinary proceeding.

In fact, the University has relied upon the UGC Guidelines which mention

that the Higher Educational Institution must mandatorily extend full support to

see that the recommendations of ICC are implemented in a timely manner. The

support which is to be extended in terms of the aforesaid provision of the UGC

guideline is with regard to the institutional resources given for functioning of ICC

and the office and building infrastructure as well as sufficient allocation of

financial resources. The recommendation as indicated therein does not mean the

recommendation for initiating disciplinary proceeding against a person even

though the very basis for initiating such proceeding does not exist.

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

Appellate Side

Present :- Hon’ble Justice Amrita Sinha

W.P.A. No. 8018 of 2020

With

W.P.A. No. 11995 of 2021

Angshuman Kar Vs. The State of West Bengal & Ors.

Judgment on :- 07.09.2021

Author: Amrita Sinha, J.

The petitioner is a professor in the Department of English and Culture

Studies in the University of Burdwan. He is in service of the University since 2002.

By an order dated 9th September, 2020 the Registrar (Officiating) of the University

notified that pursuant to the resolution of the Executive Council on 8th September,

2020 the petitioner is debarred from all examinations and academic activities of

the University, with immediate effect.

The petitioner made an application before the University praying for

recalling the order of debarment. The Registrar (Officiating) by a letter dated 26th

September, 2020 intimated the petitioner that the Executive Council resolved that

during the pendency of proceedings the Council is unable to withdraw the order

debarring him from all examinations and academic activities of the University.

Being aggrieved by the same the petitioner approached this Court by filing writ

petition being WPA 8018 of 2020 inter alia praying for setting aside the order of

debarment and an order of injunction restraining the authority from proceeding

with the inquiry as reflected in the charge-sheet.

On 25th September, 2020 the petitioner was informed that the University

proposed to hold an inquiry against him. The Article of Charges along with list of

supporting documents was forwarded to him. The petitioner was directed to

submit his representation in his defence.

The allegation against the petitioner is that he had sexually harassed a

student of the English Department (MA) 2016-2018 over a period and thereafter

intimidated her so that she did not lodge any complaint against him. The said act

was unbecoming of a teacher and he seriously breached the trust which

constitutes grave misconduct. Further allegation was that the audio conversation

between the professor and the student went viral in different media including

social media. The said heinous act has caused disrepute to the esteemed

institution as well as to the teachers’ community at large adversely affecting the

sanctity of the educational institution.

The statement of imputation of charge in support of the Articles of Charge

mentions that the University received mail from the Head, Department of English

and Culture Studies, University of Burdwan wherein allegation of sexual

harassment was intimated and it was also communicated that the student sought

help from two other professors of the English Department. It was alleged that the

petitioner intimidated her to stop her from lodging any complaint against him. It

was further alleged that the conversation between the petitioner, his wife and the

student reveals that the petitioner threatened the student for causing detriment to

her career.

The specific case of the petitioner is that as there was no formal complaint

of sexual harassment against him in terms of the Sexual Harassment of Women at

Workplace (Prevention, Prohibition and Redressal) Act, 2013 hereinafter referred to

as the ‘said Act’ and the corresponding Rules accordingly, issuance of charge-sheet

was bad ab initio.

It is the further case of the petitioner that the University Grants

Commission (Prevention, Prohibition and Redressal of Sexual Harassment of

Woman Employees and Students in Higher Educational Institutions) Regulations,

2015, hereinafter referred to as the ‘Regulations, 2015’, has laid down the

procedure for inquiring into the allegation of sexual harassment. The University

could not have bypassed the aforesaid provision and issued charge-sheet against

him. According to the petitioner there was an element of malice /mala fide and the

language of the charge-sheet reflected the closed mind-set of the authority. The

petitioner allege bias, motivated and pre-determined mind-set of the authority.

Initially the Internal Complaint Committee (ICC) was not a party in the writ

petition but subsequently pursuant to the leave granted by the Court, ICC has

been impleaded as respondent.

During hearing of the said writ petition University submitted that steps

were taken against the petitioner as per the recommendation of ICC. The petitioner

filed the second writ petition being WPA 11995 of 2021 challenging the

recommendation made by ICC and prays for setting aside the same. Both the writ

petitions have been tagged together and are being dealt with analogously and

disposed of by a common judgment.

The petitioner draws attention of the Court to the report of the ICC dated

25th August, 2020 wherein it was mentioned that since there was no formal

complaint of any allegation of sexual harassment by the student or by anyone on

her behalf before ICC, so as per UGC guidelines, the members of ICC expressed

their doubts whether ICC has any jurisdiction to proceed further with the matter.

As the members of ICC failed to come to a definite conclusion as to whether to

proceed on the basis of the email and audio clip received from the Bardhaman

Viswavidyalaya Chhatra Samsad, email from Akhil Bharatiya Vidyarthi Parishad,

BU and email from Head, Department of English and Culture Studies, the

members of ICC emphasized on seeking legal opinion from a lawyer with regard to

the future course of action in the matter. After receiving the advice from the

advocate a threadbare discussion took place.

Legal advice was sought for and ICC reopened the case after receiving the

legal advice on 14th August, 2020. The members of ICC repeatedly tried to contact

the student but she denied meeting the members citing ill-health. The student

expressed her desire not to lodge a formal complaint against any person by an

email dated 17th August, 2020 written to the Presiding Officer, ICC. In the absence

of a formal written complaint of the student, ICC expressed inability to proceed

further in the matter. However, considering the available documents and the

statements of the reported victim student, ICC recommended that University may

take appropriate steps against the concerned professor after receiving legal advice.

Addendum to the report of ICC submitted on 25th August, 2020 mentions

that the Presiding Officer, ICC received email from the University on 5th September,

2020 along with email, audio clip and the opinion of a different learned advocate.

An emergent meeting of ICC was called on 6th September, 2020 and after

discussion the members of ICC unanimously opined on reaffirming their earlier

recommendation dated 25th August, 2020 not to proceed any further in the matter.

The petitioner contends that the University ought not to have reopened the

case on the advice of the advocate in the absence of a complaint from the student.

Reliance has been placed on the provisions of Section 9 and 11 the said Act.

It is the specific submission of the petitioner that the alleged student

passed out from the University way back in the year 2018. The allegation of sexual

harassment surfaced in the year 2020, that is, long after the period prescribed

under the Act. Moreover, there has been no formal complaint pursuant to which

the authority could have acted upon.

The said Act contemplates that the Internal Committee may proceed to

make inquiry into the complaint in accordance with the provisions of the service

rules, but in the absence of a complaint, ICC could not have proceeded in the

matter.

The petitioner further submits that as the University proceeded against the

petitioner on the basis of the recommendation of ICC, accordingly the said

proceeding should also fail if the steps taken by ICC are found not to be in

accordance with law. The charge-sheet will be redundant in case the Court is of

the opinion that the ICC could not have proceeded in the matter in the absence of

a formal complaint from the victim student.

The petitioner prays for setting aside the recommendation of ICC, the

charge-sheet issued by the University and all subsequent steps taken pursuant to

issuance of charge-sheet.

The petitioner relies upon the judgment delivered by the Hon’ble Supreme

Court in the matter of:

Medha Kotwal Lele & Ors. –vs- UOI & Ors. reported in (2013) 1 SCC

297 paragraphs 37 and 41.

Dr. Vijayakumaran C. P. V. –vs- Central University of Kerala & Ors.

reported in 2020 SCC Online SC 91 paragraph 12.

Anjan Bhattacharjee –vs- Registrar General, High Court & Ors.

reported in 2018 SCC Online Cal 14714 paragraph 39.

Debdulal Maity –vs- National Insurance Co. Ltd. & Ors. reported in

2014 SCC Online Cal 17152.

The learned advocate representing ICC opposes the prayer of the petitioner.

It has been submitted that recommendation of ICC has been made relying on the

telephonic conversation and the audio clips which are available with ICC. It has

been submitted that though the victim student completed her course in 2018 but

she intended to proceed with her higher education in the said University and

accordingly ICC thought it fit to take steps against the petitioner. It has further

been submitted that the petitioner intimidated the victim to such extent that she

refrained from making the complaint out of fear and out of threat that her future

academic prospect may be hampered. It has been submitted that the email and

audio clips were enough evidence to proceed against the petitioner. Principle of

zero tolerance of allegation of sexual harassment is followed by ICC.

The learned advocate for the University submits that according to

Regulations, 2015 it is the responsibility of the Higher Educational Institution to

bring those guilty of sexual harassment against its employees and students to

book and initiate all proceedings as required by law and also put in place

mechanisms and redressal system like the ICC to curb and prevent sexual

harassment on it campus.

According to Clause 3(1)(m) of Regulations, 2015 every Higher Educational

Institution shall treat sexual harassment as a misconduct under service rules and

initiate action for misconduct if the perpetrator is an employee.

It has further been submitted that the action of the petitioner falls under

misconduct in accordance with the service rules of the employee. Regulations,

2015 mention that ICC shall, upon receipt of the complaint, send a copy of the

same to the respondent within a period of seven days of such receipt. The inquiry

is to be completed within a period of ninety days from the receipt of the complaint.

The inquiry report, with recommendations, if any, has to be submitted within ten

days from the completion of the inquiry. In the instant case, the University acted

on the basis of the recommendation of ICC.

The University argued that on receipt of the recommendation of ICC there

was no other option for the University but to initiate proceeding against the

petitioner as the law mandates. It has been contended that as disciplinary

proceeding has already been initiated, the petitioner has enough scope and

opportunity to place his case before the disciplinary authority. It may happen that

the disciplinary authority, upon being satisfied by the submission of the petitioner,

drops the disciplinary proceeding. It has been contended that since the proceeding

under the said Act and the Service Rules of the petitioner are independent of each

other, accordingly, if the proceeding under the said Act fails the same cannot have

an automatic effect on the disciplinary proceeding. The petitioner may however

refer and rely upon the order passed by ICC and thereafter the disciplinary

authority shall take an informed decision in the matter.

The University relies upon the judgment delivered by the Hon’ble Supreme

Court in the matter of Vishaka & Ors. –Vs- State of Rajasthan & Ors. reported

in (1997) 6 SCC 241 (paragraph 17) wherein it was held that where the conduct of

the perpetrator amounts to misconduct in employment, appropriate disciplinary

action should be initiated by the employer in accordance with the Rules. It has

been submitted that as the incident occurred within the college campus the same

has to be taken as a work place and dealt with in accordance with Regulations,

2015.

Respondents pray for dismissal of the writ petition.

I have heard and considered the submissions made on behalf of all the

parties. It appears from the report of ICC that the proceeding under the said Act

was sought to be initiated relying upon certain documents which happens to be

email and audio clip from the Bardhaman Viswavidyalaya Chhatra Samsad, email

from Akhil Bharatiya Vidyarthi Parishad, BU and email from Head, Department of

English and Culture Studies.

There is no complaint from the student. The aforesaid documents i.e the

email and audio clip were never re-checked or verified to test its genuineness. The

student has made a written communication to the members of ICC that she does

not want to make any formal or written complaint about the incident. She has also

indicated in her email that her parents are also not willing to lodge a formal

complaint in connection with the incident which allegedly took place.

ICC, in their meeting held on 25th August, 2020, took note of the statement

of the student and expressed their doubts as to whether ICC could exercise

jurisdiction to proceed in the matter in the absence of a complaint from the

student. After threadbare discussion the members of ICC were of the opinion that

in the absence of a formal complaint of the victim, ICC is unable to proceed further

in the matter. ICC however, indicated that considering all available documents and

statements of the reported victim, it is recommended that the University may take

steps considering the legal advice received by ICC.

It is thereafter that legal advice was sought for and on the basis of such

advice given by the learned advocate, ICC called an emergent meeting on 5th

September, 2020 to discuss the next course of action as ICC had already sent

recommendation and suggestion to the University on 25th August, 2020. It was

resolved that considering the documents carefully it was decided that the audio

clip does not add any new relevant information and no conclusion can be drawn.

ICC reiterated its earlier recommendation as submitted to the University on 25th

August, 2020. On the basis of the aforesaid recommendation the University issued

the charge-sheet against the petitioner.

Section 9 of the said Act lays down that the aggrieved woman may make, in

writing, complaint of sexual harassment at workplace to the Internal Committee if

so constituted or the Local Committee, in case it is not so constituted, within a

period of three months from the date of incident and in case of a series of incidents

within a period of three months from the date of last incident. The time period may

be extended, for reasons to be recorded in writing, for a further period of three

months. If the aggrieved women in unable to make a complaint on account of her

physical or mental incapacity, such other person as may be prescribed may make

the complaint.

According to the Sexual Harassment of Women at Work Place (Prevention,

Prohibition and Redressal) Rules, 2013 where the aggrieved women for any reason

is unable to make a complaint, a complaint may be filed by any person who has

knowledge of the incident, with her written consent.

On receipt of the complaint ICC may proceed to make inquiry into the

same in accordance with the provisions of the Service Rules applicable to the

respondent. All further actions in the matter may be initiated only after receipt of

the complaint from the aggrieved person.

It appears from the said Act and the corresponding Rules that a complaint

either from the aggrieved person or on behalf of the aggrieved person is a sine-quanon

for the purpose of initiating any proceeding under the said Act. The Act lays

down the competence of the complainant and the time period within which a

complaint has to be filed. The aggrieved person or anybody on her behalf, with her

consent, is competent to file the complaint. The same implies that, any person

apart from those mentioned above, is incompetent to file a complaint under the

said Act. The same suggests that compliant, if any, filed by any person lacking

competence, is illegal and void ab initio. The same cannot be treated as a valid

complaint in the eye of law.

The time limit as prescribed in the said Act is also important. A complaint

has to be lodged latest within a period of six months from the date of the last

incident. The time limit is of prime importance so as to check stale allegation being

levelled against persons with a view to harass them. At the same time, timely

reporting also helps in taking prompt action against the perpetrator as the

evidences may be readily available. The offender doesn’t get much time to tamper

evidence or intimidate witnesses.

In Debdulal Maity (supra) the Court was of the opinion that as the

complaint was not filed within the prescribed period of limitation, ICC acted hastily

in issuing the impugned notice.

In the instant case, admittedly there is no complaint from the aggrieved

person. On the contrary, the alleged aggrieved person has categorically made her

mind clear that, neither she, nor her parents are eager to proceed with the matter.

Incidentally, the alleged incident took place in the year 2018 or prior thereto, when

the student was studying in the University. The student has passed out from the

University in the year 2018, but for strange reasons, no complaint was lodged

either by the student or any competent person on her behalf within the time as

specified in the said Act and the corresponding Rules. After lapse of about two

years the incident surfaced, that too, at the behest of some organization/ students’

union. Neither the students’ union nor any of its members have obtained consent

from the concerned student prior to proceeding with the matter. The complainants

do not have any personal knowledge of the alleged incident. It appears that, for

reasons best known to them, the Union became extra vigilant and re-opened the

case, when practically the alleged incident died a natural death. The same has

caused disrepute to not only the petitioner but also to the University and the

student concerned.

It appears from the report of ICC that they were prudent enough not to

proceed in the matter in the absence of a complaint. ICC ought to have stopped

there. ICC ought not to have recommended initiation of proceeding by the

University. The University, in its turn, without application of mind, solely relying

on the recommendation of ICC, initiated a disciplinary proceeding against the

petitioner. The University ought to have been satisfied and /or convinced that

there were enough materials to proceed against him. It is not known as to how and

why the University proceeded against the petitioner even though ICC did not. It

appears that the advice of the learned advocate and the recommendation of ICC

may have prompted the University to initiate the proceeding. The University ought

to have formed an independent opinion by checking the corresponding law as to

whether it was permissible for initiating proceeding in such a situation.

Had the student been really aggrieved with the action of the petitioner then

she ought to have taken steps in proper time to protest the same. On the contrary,

it appears that there was no intention of the lady ever, to fight for her rights. Law

provides enough scope and facility to an aggrieved woman to file a complaint either

personally or through persons authorised by her. She sat tight over the matter for

nearly two years and thereafter the alleged incident was brought to the forefront by

third parties, who neither had personal knowledge of the incident nor were

witnesses to the incident. Reliance was placed on audio clippings, veracity of

which have not been tested. It may be that the lady was threatened or intimidated

not to proceed further in the matter. It is possible that the student was not advised

and guided properly. But where the lady herself puts forth in writing that neither

she nor her parents intend to proceed with the matter, then the desire of the lady

has to be respected.

The Hon’ble Supreme Court in Dr. Vijayakumaran (supra) held that upon

receipt of complaints from girl student of the University about sexual harassment

in University campus, it was obligatory on the administration to refer such

complaints to the ICC within the stipulated time period as pre-predicated in

Section 9 of the said Act. The same implies that the compliant of the lady and the

time limit for filing such complaint both are equally important.

The allegations against the petitioner have criminal connotations. No

complaint was ever lodged before the police by any person alleging the incident.

Without being convinced and satisfied with the documents, the University ought