DRSKANNAN v Regional Cancer Centre (RCC) and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945 WP(C) NO. 25684 OF 2023`** ## **`PETITIONER/S:`** ``` DRSKANNAN AGED62YEARS PRAMILA,TC16/362,EVRA-204,EDAPAZHANJI, THIRUVANANTHARPURAM,WORKINGASHEADANDPROFESSOR, DIVISIONOFCANCERRESEARCH,REGIONALCANCERCENTRE, MEDICALCOLLEGEPO,THRIRUVANANTHAPURAM - NOWUNDERORDERSOFSUSPENSION,PIN695014 BYADVS. P.SREEKUMAR HELENP.A. ATHULROY STEPHANIESHARON ``` ## **`RESPONDENT/S:`** ``` 1REGIONALCANCERCENTRE(RCC) REPRESENTEDBYITSDIRECTOR, REGIONALCANCERCENTRE,MEDICALCOLLEGEPO, - THRIRUVANANTHAPURAM-,PIN695011 2THEDIRECTOR REGIONALCANCERCENTRE,MEDICALCOLLEGEPO, - THRIRUVANANTHAPURAM,PIN695011 3THEINTERNALCOMPLAINTSCOMMITTEERCC REPRESENTEDBYITSPRESIDINGOFFICER, REGIONALCANCERCENTRE,MEDICALCOLLEGEPO, - THRIRUVANANTHAPURAM-,PIN695011 4THEASSISTANTADMINISTRATIVEOFFICER{ENQUIRYOFFICER} REGIONALCANCERCENTRE,MEDICALCOLLEGEPO, - THRIRUVANANTHAPURAM-,PIN695011 SRI.ATHULSHAJI,SCFORREGIONALCANCERCENTRE ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 22.11.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` W.P. (C) No.25684 of 2023 2 ## **JUDGMENT** The petitioner, who was working as Head and Professor of the Division of Cancer Research in the Regional Cancer Centre (RCC), Thiruvananthapuram has approached this Court seeking to quash Ext.P6 order dated 05.06.2023 issued by the 2nd respondent, by which, the respondents have decided to conduct a detailed enquiry into the allegations of sexual harassment levelled against the petitioner and have appointed an enquiry officer and presenting officer. The petitioner has also sought to quash Ext.P8 notice issued by the 4th respondent directing him to appear before the enquiry officer. ## 2. The short facts of the case are as under: 2.1 As stated above, the petitioner is working under the 1st respondent. While so, he was issued with Ext.P1 informing him that a complaint submitted under Rule 7(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 has been received wherein certain allegations of sexual harassment have been levelled against the petitioner. He was requested to furnish his reply. The petitioner responded by issuing Exhibit P2 reply and denied the allegations. He contended the allegations W.P. (C) No.25684 of 2023 3 were unclear and vague and not supported by any evidence and requested that the complaint be dropped. It appears that his reply was not accepted, and he was served with Ext.P3 and directed to appear before the Internal Complaints Committee( ICC). Though Ext.P3 was issued on 10.11.2022, there was no follow-up action. Much later, on 27.4.2023, he was served with Ext.P4 appending the Memo of Charges and Statement of Allegations. On receipt of Ext.P4, the petitioner submitted Ext.P5 requesting the respondents to supply him the copies of the following documents. 1. Copies of all reports & proceedings of the internal Complaints Committee pertaining to all allegations against me. 2. Copies of all complaints submitted, if any, in relation to the aforesaid allegations. 3. Statements submitted by all complainants, respondent and all witnesses including RCC faculties, staff and students during the proceedings of the Internal Complaints Committee in relation to the allegations made in the show cause letter. 4. Entire copy of the alleged CCTV footage dated 02.10.2022 referred to in the Memo of Charges. - 2.2 He also denied all the allegations levelled against him. - 2.3. The petitioner states that the documents which were sought by him were not furnished to him. Instead, he was served with Ext.P6 on W.P. (C) No.25684 of 2023 4 5.6.2023, by which he was informed that a decision has been taken to conduct a detailed enquiry into the charges levelled against the petitioner herein. He points out that Ext.P5 request made by the petitioner to furnish the records was treated as a reply to the statement of allegations. 2.4 According to the petitioner, Ext.P5 is not a reply to the allegations, and all that he had asked for were the records mentioned therein to respond to the memo of charges as well as the statement of allegations. 2.5. The petitioner states that he has now been served with Ext.P8 notice on 25.7.2023 informing him that he can appear before the enquiry officer and peruse the documents and take notes. 3. The petitioner asserts that Exts.P6 and P8 cannot be sustained under law. According to the petitioner, the enquiry is being proceeded with in clear violation to the principles of natural justice and procedural fairness. The failure of the respondents to furnish the records impedes the right of the petitioner to defend himself. It is on these assertions that this writ petition is filed seeking the following reliefs: i) Issue a writ of certiorari or any other writ or order calling for the records leading to exhibit P6 and P8 and to quash the same. (ii) Issue a writ of mandamus or any other writ or order directing W.P. (C) No.25684 of 2023 5 the 2nd respondent to furnish the records sought for by the petitioner through exhibit P5 and provide him an ample opportunity to submit his explanation to exhibit P4. - (iii) Issue a writ of certiorari or any other writ or order calling for the records leading to exhibit P4 and to quash the same. 4. A counter affidavit has been filed by respondents 1 and 2. After reiterating the allegations against the petitioner, it is stated that the ICC had conducted a detailed enquiry into the complaint in terms of the provisions of the Act, 2013. It is stated that the statements of the victims were recorded and they have narrated the allegations of sexual harassment meted out by them. It is stated that though the petitioner was asked to appear and respond, he has refused to do so. It is stated that the petitioner had furnished the names of five witnesses who were also summoned, and their statements were recorded. It is stated that after a detailed deliberation, the 3rd respondent has come to the conclusion that the students and project staff have been subjected to sexual harassment by the petitioner, and the last incident was on 2.10.2022. Though opportunities were granted to the petitioner, he has not responded to appear before the committee and state his case. Though the enquiry officer had requested the petitioner to appear on 31.7.2023 to state his version, he has not chosen to do so. 5. I have considered the submissions and have gone through the W.P. (C) No.25684 of 2023 6 records. 6. I find that this Court, by an interim order dated 04.8.2023, had ordered the respondents to defer the proceedings against the petitioner. 7. Having gone through the records, I find that it is on the strength of a mass petition filed by the students as well as the project staff that proceedings have been initiated against the petitioner. I find from the records that the petitioner, while responding to the memo of charges as well as the statement of allegations, had requested that he be furnished with copies of all reports and proceedings of the internal complaints committee pertaining to the allegations. He has also requested to furnish him with the statements submitted by the complainants and witnesses, including the RCC faculty. He had also sought for a copy of the alleged CCTV footage dated 2.10.2022 which is referred to in the memo of charges. Admittedly, he has not been furnished with any of the records demanded by him. The respondents have taken a stand that the privacy of the students and the project staff will be infringed if the copies of the documents requested by the petitioner are furnished to him. 8. In **Aureliano Fernandez v. State of Goa and Others[1]** , it was held by the Apex Court that however women-centric the Guidelines and the Act may have been, they both recognize the fact that any inquiry into a complaint of > 1 [(2023) SCC Online 621] W.P. (C) No.25684 of 2023 7 sexual harassment at the workplace must be in accordance with the relevant rules and in line with the principles of natural justice. 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. 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. When conducting an inquiry, it is the duty of the Inquiring Authority to proceed in a manner that is visibly free from the taint of arbitrariness, unreasonableness or unfairness. An inquiry that can culminate into imposition of a major penalty like termination of service of an employee, must doubly conform to a just, fair and reasonable procedure. Any displacement of the principles of natural justice can only be in exceptional circumstances. Wherever the rules are silent, principles of natural justice must be read into them, and a hearing be afforded to the person who is proposed to be punished with a major penalty. 9. In the case on hand, the petitioner has been kept in the dark with regard to the documents and records relied on by the respondents. Of course, W.P. (C) No.25684 of 2023 8 in appropriate cases, if the respondent feels that the identity of a particular witness will have to be masked in the peculiar facts and circumstances, they have a right to do so, but that can only be in exceptional circumstances. Insofar as the CCTV clippings are concerned, the respondents are placing reliance on the same solely to substantiate that he had allegedly gone to Lab IV of the Research Division of RCC at around 3 pm, where one of the research fellows was working. As to why, the petitioner is denied a copy of the clip is not known. Instead of providing the petitioner the documents as requested by Ext.P5, the respondents have chosen to issue Ext.P6 ordering a detailed enquiry by appointing an enquiry officer. I am of the view that the procedure adopted by the respondents is not fair. Before taking a decision, the records, statements and documents relied on by the respondents ought to have been furnished to the petitioner to enable him to defend himself. 10. In view of the discussion above, the petitioner is entitled to succeed. This writ petition is ordered and the following directions are issued: a)Exts.P6 and P8 will stand quashed. There will be a direction to the respondents to furnish copies of the records sought by the petitioner and detailed in Ext.P5 within a period of one week from the date of receipt of a copy of this judgment. b) In exceptional cases, if the respondents feel that the W.P. (C) No.25684 of 2023 9 identity of any particular student or witness is to be masked it would be open to them to do so. - c) The petitioner shall respond to Ext.P4 within a period of two weeks from the date on which the records are furnished. d) After getting the response of the petitioner herein, it would be open to the respondents to take an appropriate decision as to whether a detailed enquiry is to be conducted. The writ petition is disposed of. Sd/- ## **RAJA VIJAYARAGHAVAN V,** **JUDGE** NS/23/11/2023 W.P. (C) No.25684 of 2023 10 ## **`APPENDIX OF WP(C) 25684/2023`** ``` PETITIONEREXHIBITS ``` |`Exhibit `|`P1`|`TRUE COPY OF THE COMMUNICATION DATED`| |---|---|---| |||`28.10.2022 OF THE RESPONDENTS TO THE`| |||`PETITIONER`| |`Exhibit `|`P2`|`TRUE COPY OF THE EXPLANATION SUBMITTED BY THE`| |||`PETITIONER DATED 4.11.2022`| |`Exhibit `|`P3`|`TRUE COPY OF THE NOTICE DATED 10.11.2022`| |||`ISSUED BY THE 3RD RESPONDENT`| |`Exhibit `|`P4`|`TRUE COPY OF THE MEMO OF CHARGES AND THE`| |||`STATEMENT OF ALLEGATION ISSUED TO THE`| |||`PETITIONER ON 27.4.2023`| |`Exhibit `|`P5`|`TRUE COPY OF THE REQUEST DATED 9.5.2023`| |||`SUBMITTED BY THE PETITIONER ALONG WITH THE`| |||`POSTAL ACKNOWLEDGMENT CARD`| |`Exhibit `|`P6`|`TRUE COPY OF THE ORDER DATED 05.06.2023 ISSUED`| |||`BY THE 2ND RESPONDENT`| |`Exhibit `|`P7`|`A TRUE COPY OF THE REPLY DATED 14.6.2023 ALONG`| |||`WITH THE POSTAL ACKNOWLEDGMENT CARD`| |`Exhibit `|`P8`|`TRUE COPY OF THE NOTICE DATED 25.7.2023 ISSUED`| |||`TO THE PETITIONER BY THE 4TH RESPONDENT`|