Delhi High Court: An appeal was filed by the appellant assailing the impugned judgment/order dated 25-11-2019 passed by the Single Judge wherein he dismissed the writ petition assailing the decision of the Executive Council, University of Delhi/respondent 1 imposing the punishment of compulsory retirement upon the appellant on the basis of a Sexual Harassment complaint filed by respondent 2, who is hereinafter referred by the pseudonym, namely Ms. ‘M’ in order to protect her identity. A division bench of Yashwant Varma and Dharmesh Sharma, JJ., held that there has been no illegality, perversity or incorrect approach committed by the Single Judge in passing the impugned judgment, and thus, there is no merit in the present appeal.
The appellant is a professor working in the Hindi Department in the Faculty of Arts, University of Delhi. A complaint was addressed by respondent No. 2, Ms. “M” on 09-09-2008 to the Vice-Chancellor, who was pursuing M. Phil. in the Hindi Department, alleging sexual harassment meted out to her not only by the present appellant but also two other members of the faculty.
The main grounds for challenge in the present appeal are that the Single Judge passed the impugned judgment after more than 13 months of reserving the judgment and thereby causing severe prejudice to the appellant. The Single Judge wrongly read down and interpreted the definition of “sexual harassment” by carving out a special category of teacher-student relationship despite the fact that the student in question was a mature girl pursuing a post-graduation course; and that the appellant was neither given a Show Cause notice nor a hearing prior to the decision taken by the Executive Committee to compulsorily retire him from service so much so that he was not even provided a copy of the inquiry report dated 31-08-2010. The Single Judge even failed to appreciate that the final report of the Apex Committee was vitiated due to the participation of respondent 3 Professor Vibha Arya; and that non-cooperation on the part of respondent 2 in her act of not appearing for cross-examination.
On the aspect of whether there was any substantial non-compliance with the principles of natural justice and/or any statutory parameters while holding the disciplinary inquiry against the appellant, the Court noted that the appellant/delinquent official was supplied with the copy of the complaint lodged by the complainant to which a detailed reply was submitted by the appellant/delinquent official. A bare perusal of the reply would show that he was well aware of not only the nature but also the substance of the allegations leveled against him so much so that in his reply he on his own acknowledged that he had sent the objectionable messages to the complainant inter alia, conceding romantic messages sent on 16-05-2007 when he had gone to Patna, Bihar to attend a program organized by Doordarshan, though at the same time claiming that the relationship between him and the complainant was consensual and rather she had been acting in a calculated manner so as to entrap him into a relationship in order to later on blackmail him.
Thus, in view of the directions passed by the Supreme Court, there was substantial compliance with the principles of natural justice, particularly when the Ordinance XV (D) (applicable to the University of Delhi, which is based on the policy against sexual harassment adopted by the Delhi University, which seeks to maintain and create an academic and work environment free of sexual harassment for students, academicians as also non-teaching staff of Delhi University) did not provide for a face-to-face cross-examination vide Clause (10) in the Appendix. There has been no serious violation of principles of natural justice to prejudice the appellant during the inquiry after the imposition of charges.
The Court further noted that there has been a perceptible departure in service law doing away with its earlier concept that even a small violation shall result in the order being rendered a nullity. In the realm of application of the principle/doctrine of audi alteram partem, a perceptible distinction has been laid down between the cases where there was no hearing at all and the cases where there was a merely technical infringement of the principle. The ultimate test is always the same viz., the test of prejudice or the test of fair hearing. Thus, the delinquent employee has miserably failed to prove that the impugned order was prejudiced and resulted in a miscarriage of justice.
The Court concluded that the acts complained of were not legally permissible in the first instance, and existence or otherwise, of consent, on the part of the “other party” paled into insignificance. There was no question of closure of the inquiry proceedings vide letter dated 12-05-2010 which, in effect only signified that neither the appellant nor complainant was required for any further questioning. The inquiry was not closed by the disciplinary authority. The report dated 30-04-2009 was never set at naught based on which the “ACC” framed charge against the appellant, and post charge, the appellant submitted his questionnaire for cross-examination and a reply from the complainant was sought but then proceedings had to be closed for the non-cooperation of the complainant. There has been no illegality in the decision by the disciplinary authority seeking a final report from the “ACC”. No hearing was envisaged by the Ordinance XV(D) and the “ACC” did not commit any illegality in appreciation of all the material on the record including admission by the appellant of his misdemeanors resulting in report dated 31-08-2010.
The Court held that the disciplinary authority took a just and fair decision to compulsorily retire the appellant from the service in the interest of the institution and the impugned decision cannot be said to be perverse, harsh or unconscionable in any manner.
[Prof Ajay Tiwari v. University of Delhi, 2023 SCC OnLine Del 4390, decided on 26-07-2023]
Advocates who appeared in this case :
Mr. Manish K. Bishnoi, Advocate for the Petitioner;
Ms. Beenashaw Soni and Ms. Mansi Jain, Advs. for the R-1;
Ms. Tanya Agarwal, Adv. for the R-2/complainant;
None for the R-3 to R-5.
