Governing Body, TKM College of Engineering, Kollam & the Chairman, Governing Body, TKM College of Engineering, Kollam v. NOWSHAD A. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944** **WA NO. 1593 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 11445/2018 OF HIGH COURT OF** ## **KERALA** ## **APPELLANTS/RESPONDENTS 1 AND 2:** - **1 GOVERNING BODY, TKM COLLEGE OF ENGINEERING, KOLLAM, PIN-691005, REPRESENTED BY ITS CHAIRMAN.** - **2 THE CHAIRMAN, GOVERNING BODY, TKM COLLEGE OF ENGINEERING, KOLLAM, PIN-691005.** ## **BY ADV NISHA GEORGE** ## **RESPONDENTS/WRIT PETITIONER & RESPONDENTS 3 TO 5:** - **1 NOWSHAD.A, (FORMERLY ASSISTANT PROFESSOR, DEPARTMENT OF ELECTRICAL AND ELECTRONICS ENGINEERING, TKM COLLEGE OF ENGINEERING, KOLLAM) RESIDING AT SIRAJ MANZIL, PALLIPPATUMURI, THRIKKUNNAPPUZHA P.O., ALAPPUZHA-690515.** - **2 A.P.J. ABDUL KALAM TECHNOLOGICAL UNIVERSITY, CET CAMPUS, THIRUVANANTHAPURAM, PIN-695016, REPRESENTED BY ITS REGISTRAR.** - **3 UNIVERSITY OF KERALA, PALAYAM, THIRUVANANTHAPURAM, PIN-695034, REPRESENTED BY ITS REGISTRAR.** - **4 DIRECTOR OF TECHNICAL EDUCATION, PADMAVILASAM STREET, FORT P.O., THIRUVANANTHAPURAM-695023.** Writ Appeal No.1593 of 2022 -: 2 :- **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY (B/O) S.P.ARAVINDAKSHAN PILLAY N.SANTHA V.VARGHESE PETER JOSE CHRISTO S.A.ANAND L.ANNAPOORNA K.N.REMYA SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal No.1593 of 2022 -: 3 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ. ----------------------------------------------Writ Appeal No.1593 of 2022 ----------------------------------------------Dated this the 10[th] day of January, 2023** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This appeal is directed against the judgment dated 09.06.2022 in W.P.(C) No.11445 of 2018. Respondents 1 and 2 in the writ petition are the appellants. Parties are referred to in this judgment for convenience, as they appear in the writ petition. 2. The petitioner was an Assistant Professor in an aided Engineering College. The first respondent is the Governing Body of the College and the second respondent is the Chairman of the first respondent. The management of the College received a complaint in December, 2015 raising allegations of sexual harassment against the petitioner from a fellow teacher. The complaint was referred by the management to the Internal Complaint Committee (ICC) in terms of the -: 4 :- Writ Appeal No.1593 of 2022 provisions contained in the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (the Act). The ICC found that the petitioner is guilty of unwelcome verbal conduct of sexual nature as alleged against him and recommended the management to take appropriate disciplinary action against him for the same. The petitioner has not challenged the report of the ICC under Section 18 of the Act and as such, the finding therein that the petitioner is guilty of sexual harassment has become final. The management of the College thereupon initiated disciplinary action against the petitioner, among others, on the charge that he made unwelcome verbal conduct of sexual nature against the complainant which is derogatory to the dignity of womanhood and that the ICC constituted under the Act recommended for disciplinary action against him after holding that he is guilty of sexual harassment. In the enquiry conducted as part of the disciplinary proceedings, without giving any regard to the finding rendered by the ICC, the enquiry officer found that the charge of sexual harassment levelled against the petitioner has not been established in the enquiry and that the only charge that was established in the enquiry is that the Writ Appeal No.1593 of 2022 -: 5 :- petitioner has misbehaved with and spoken rudely to the complainant. Based on the report of the ICC as also the report of the enquiry officer, the management issued Ext.P13 show cause notice to the petitioner calling upon him to show cause why he shall not be imposed with the penalty of removal from service. Ext.P14 is the reply of the petitioner to Ext.P13 notice. As the management found that Ext.P14 explanation is not satisfactory, in terms of Ext.P1 order, the petitioner was removed from service. 3. Another disciplinary proceedings was initiated earlier against the petitioner on charges that he misbehaved with female students, and based on the findings in the enquiry conducted as part of the said disciplinary proceedings, the petitioner was imposed a penalty of barring of one increment. It is seen that it is having regard to the proved conduct of the petitioner in the earlier disciplinary enquiry, that the management inflicted on the petitioner, as per Ext.P1 order, the penalty of removal from service. The petitioner challenged Ext.P1 order before this Court in the writ petition mainly on the ground that the penalty of removal from service is disproportionate to the gravity of misconduct proved. Writ Appeal No.1593 of 2022 -: 6 :- 4. The learned Single Judge noticed from Ext.P1 order that the same refers to the findings rendered against the petitioner in the enquiry conducted as part of the earlier disciplinary proceedings and consequently held that the management was swayed by this aspect; that the delinquent cannot be imposed with a punishment, except for the charges which have been proven in the enquiry for unwelcome verbal conduct of sexual nature and that having regard to the charge proved in the disciplinary enquiry against the petitioner, the penalty imposed on him is disproportionate. Consequently, the learned Single Judge quashed Ext.P1 order and directed the disciplinary authority to reconsider the penalty imposed on the petitioner, after affording him an opportunity of being heard. The management of the College is aggrieved by the said decision of the learned Single Judge and hence, this appeal. 5. Heard the the learned Senior Counsel for the appellants, respondents 1 and 2 in the writ petition as also the learned counsel for the first respondent, the petitioner in the writ petition. 6. As noted, the complaint received against the petitioner was referred by the management to the ICC Writ Appeal No.1593 of 2022 -: 7 :- constituted under the Act, and the ICC found that the petitioner is guilty of unwelcome verbal conduct of sexual nature as alleged against him and recommended appropriate disciplinary action against him. In **Medha Kotwal Lele v. Union of India,** (2013) 1 SCC 297, the Apex Court has held that the enquiry of the Complaint Committee constituted in terms of the directions contained in **Vishaka v. State of Rajasthan,** (1997) 6 SCC 241 shall not be treated as a mere preliminary enquiry leading to a disciplinary action but shall be treated as an enquiry into the misconduct of the delinquent. The said proposition does not appear to have been altered or diluted in any manner in terms of the provisions of the Act. If that be so, a report of the ICC constituted in terms of the Act which has become final in the absence of any challenge against the same by way of an appeal under Section 18 of the Act by the delinquent, cannot be ignored in a disciplinary action initiated pursuant to the recommendation made in the report. 7. Coming to the facts of the present case, it is seen that the officer who conducted the enquiry as part of the disciplinary proceedings initiated pursuant to the Writ Appeal No.1593 of 2022 ## -: 8 :- recommendation of the ICC, was under the mistaken impression that the report of ICC can be regarded only as a report of a preliminary enquiry and consequently, rendered findings on the charges levelled against the petitioner ignoring the same. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former and in case of disagreement, the disciplinary authority is free to arrive at its own findings based on the evidence available on record and proceed with the disciplinary action accordingly [See **Deputy General Manager (Appellate Authority) v. Ajai Kumar Srivastava,** (2021) 2 SCC 612]. It is seen that the management in the case on hand has adopted the said course of action and it is due to the said reason that the management has issued Ext.P13 show cause notice based on the report of the ICC also which is part of the records in the disciplinary action initiated against the petitioner and proceeded on the basis that the petitioner is guilty of sexual harassment as found by the ICC. We do not find any illegality in the said course of action adopted by the management. The view taken Writ Appeal No.1593 of 2022 -: 9 :- by the learned Single Judge that penalty can be imposed on the petitioner only for the misconduct proved in the enquiry conducted as part of the disciplinary proceedings and cannot be imposed on the misconduct proved in the enquiry conducted by the ICC which has become final, according to us, is unsustainable in law. That apart, it is trite that in the matter of imposing a penalty in a disciplinary proceedings for the proved misconduct, the disciplinary authority is certainly entitled to take note of the previous misconduct established against the delinquent as also the penalties imposed on him on such proved misconduct [See **ECIL v. B. Karunakar** , (1993) 4 SCC 727 and **Central Industrial Security Force v. Abrar Ali** , (2017) 4 SCC 507]. The only requirement under law in this regard is that the delinquent shall be put to notice regarding the same before a penalty is imposed on him, having regard to the previously proved misconduct also. The petitioner does not dispute the fact that there was a disciplinary action against him on similar allegations and the same culminated in a penalty of barring one increment. The view taken by the learned Single Judge that a delinquent cannot be imposed with a punishment, except for the misconduct which have been Writ Appeal No.1593 of 2022 ## -: 10 :- proven in the enquiry in question, is also therefore unsustainable in law. Needless to say, the management is certainly justified in taking the view that it can act upon the report of ICC in the matter of imposing appropriate penalty on the petitioner. Similarly, the management is right in taking the view that it can take into account the previous proved misconduct of the petitioner and the penalty imposed on him, for arriving at the right penalty to be imposed on the petitioner. 8. Having said so, the question that remains is as to whether the relief granted to the petitioner by the learned Single Judge is liable to be interfered with. As noted, the learned Single Judge quashed Ext.P1 order imposing penalty on the petitioner, and directed the management to reconsider the penalty to be imposed on the petitioner, after affording the petitioner an opportunity of hearing. The said direction being one issued by the learned Single Judge in exercise of the discretionary jurisdiction vested in this Court, we do not find any reason to interfere with the same, as we find that the findings rendered by us in the preceding paragraph would protect the interests of the management. We take this view Writ Appeal No.1593 of 2022 -: 11 :- also for the reason that there was no reference in Ext.P13 show cause notice about the finding in the previous disciplinary proceedings and the penalty imposed on the petitioner on the basis of the said finding though the petitioner does not dispute the said facts in this proceedings. In the result, the writ appeal is disposed of with the above findings and observations. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 12.01.2023