V.S. Kunju Muhammed v. Kerala University of Fisheries and Ocean Studies (KUFOS)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943** **WP(C) NO. 703 OF 2022** ## **PETITIONER/S:** SRI. V.S.KUNJU MUHAMMED AGED 55 YEARS S/O V. A. SULAIMAN, VELLEKKATTU HOUSE, CHELAKKULAM, PIN - 683 556, VENGOLA P. O., NOW WORKING AS ASSISTANT LIBRARIAN (UNDER SUSPENSION), KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES (KUFOS), PANANGAD, ERNAKULAM, PIN - 682 506. BY ADVS. S.SREEKUMAR (SR.) P.MARTIN JOSE P.P.BIJU R.GITHESH P.PRIJITH THOMAS P.KURUVILLA AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT HARIKRISHNAN S. ## **RESPONDENTS :** 1 THE KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES (KUFOS) PANANGAD, ERNAKULAM, PIN - 682 506, REPRESENTED BY ITS REGISTRAR. 2 THE CHANCELLOR THE KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES (KUFOS), KERALA RAJ BHAVAN, THIRUVANANTHAPURAM - 695 099. 3 THE VICE-CHANCELLOR THE KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES (KUFOS), KERALA RAJ BHAVAN, THIRUVANANTHAPURAM - 695 099. 4 THE REGISTRAR THE KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES (KUFOS), PANANGAD, ERNAKULAM, PIN - 682 506, **WP(C) NO. 703 OF 2022 2** 5 THE INTERNAL COMPLAINTS COMMITTEE THE KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES (KUFOS), PANANGAD P. O., PIN - 682 506. REPRESENTED BY PRESIDING OFFICER. 6 THE EXECUTIVE AUTHORITY THE KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES (KUFOS), PANANGAD, ERNAKULAM, PIN - 682 506. 7 MISS. ATHIRA MAHESH 'AISWARYA', SANSKRIT COLLEGE ROAD, THRIPUNITHURA, PIN - 682 301. BY ADVS. SRI. N. SATHEESH, SC SMT. M.U VIJAYALAKSHMI, SC SRI. ABRAHAM P.GEORGE SMT. M.SANTHY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 703 OF 2022** **3** ## **JUDGMENT** The petitioner is working as an Assistant Librarian at the Kerala University of Fisheries and Ocean Studies (KUFOS). He has approached this Court challenging the disciplinary proceedings initiated by the respondents based on a sexual harassment complaint and the consequent show cause notice issued based on an enquiry, which according to the petitioner, is vitiated for violation of the principles of natural justice. 2. The case of the petitioner as is borne out from the pleadings are as under: The 7th respondent, who was working as an Intern under the guidance of the petitioner lodged a complaint before the 4th respondent that on 14.12.2021 at about 12.30 pm, the petitioner subjected her to abuse. The 4th respondent referred the matter to the Internal Complaints Committee constituted under the UGC (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015. On 16.12.2021, the petitioner was served with **WP(C) NO. 703 OF 2022 4** Ext.P2 and he was asked to appear before the ICC at 2 pm on 16.12.2021. A copy of Ext.P1 complaint dated 14.12.2021 was served on him. On his appearance before the committee, he was asked certain questions and his answers were recorded. His request to submit a written explanation was rejected. When he refused to sign the statement, he was threatened with the initiation of criminal prosecution and the signature was obtained. On 20.12.2021, the petitioner submitted Ext.P4 representation before the respondents 3 to 5. Immediately thereafter, the petitioner was served with Ext.P5 order of suspension and a copy of Ext.P6 report prepared by the ICC was also appended. In Ext.P5 order, it is mentioned that the petitioner has been found guilty by the ICC and that he is being suspended with immediate effect. The petitioner, in the said circumstances, submitted Ext.P7 representation before the 4th respondent refuting the entire allegations and demanding an independent enquiry. Ignoring Ext.P7 representation, the petitioner was served with Ext.P8 show-cause notice. The petitioner states that being aggrieved by Ext.P5 order of suspension, the petitioner has preferred an appeal before the 1st respondent as contemplated under Rule 6 of Chapter XII of the University Statute. As against Ext.P6, the petitioner has submitted a **WP(C) NO. 703 OF 2022** **5** separate appeal before the 6th respondent. It is in the afore circumstances that the petitioner is before this Court seeking the following reliefs: i. Call for the records leading to Exhibit P5, Exhibit P6, Exhibit P8 and quash the same by issue of a writ of certiorari or other writ, order or direction; ii. Declare that Exhibit P1 complaint does not make out any allegation so as to invoke the provisions of Exhibit P3 Regulations and hence the proceedings initiated by the 5th respondent as against the petitioner on the basis of Exhibit P1 is without jurisdiction on the subject matter and hence null and void; iii. issue a writ of mandamus or other writ, order or direction compelling the Respondents 1,3 and 4 to reinstate the petitioner in to service with all monetary benefits and without any break of service within a time limit to be fixed by this Hon’ble Court; iv. issue a writ of mandamus or other writ, order or direction compelling the 6th respondent to consider Exhibit P10 within a time limit to be fixed by this Hon’ble Court and after affording the petitioner an opportunity of being heard. v. Issue a writ of mandamus or other writ, order or direction compelling the 2nd Respondent to consider Exhibit P9 within a time limit to be fixed by this Hon’ble Court and after affording the petitioner an opportunity of being heard; 3. In the counter affidavit filed by the respondents 1, 3, 4, 5 and 6, it is stated that on receipt of the complaint filed by the lady Intern, the Registrar, **WP(C) NO. 703 OF 2022 6** based on the directions issued by the Vice Chancellor had handed over the complaint to the Presiding Officer, Internal Complaints Committee. The ICC heard the complainant and recorded her statement. The petitioner was summoned and the statement given by the complainant was read over to him. He denied the allegations levelled against him. The statement given by the petitioner was recorded and he has signed the same. The statements of other library staff were recorded and the committee came to the prima facie conclusion that the allegations levelled against the petitioner were prima facie grave and amounted to sexual harassment. It is stated that it is based on the report of the ICC that Ext.P5 suspension order was passed. As per 3(1)(m) of Ext.P3 Regulations, the Higher Educational Institution (HEI), is to treat sexual harassment as misconduct under Service Rules and initiate action as provided under the University Statute. Based on the preliminary finding, a fresh enquiry would be conducted following the provisions of Chapter XII to XIV of the University Statute and during the said enquiry, the petitioner would be afforded to cross-examine the witnesses and to examine witnesses in his defence. It is contended that the petitioner would have the opportunity to cross-examine the witnesses when the enquiry is conducted in accordance with the provisions of **WP(C) NO. 703 OF 2022** the Statute. **7** 4. I have heard Sri. S. Sreekumar, the learned Senior counsel as instructed by Sri. P. Martin Jose, the learned counsel appearing for the petitioner, Sri. N. Satheesh, the learned Standing Counsel appearing for respondents 1, 3, 4, 5 and 6 as well as Smt. M. U. Vijayalakshmi, the learned Standing Counsel appearing for the 2nd respondent. 5. I have considered the submissions advanced and have perused the records. 6. The records reveal that an Intern working under the guidance of the petitioner lodged a complaint against him alleging abuse. It is undisputed that on receipt of the complaint, the respondents were bound to act in terms of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015. The specific contention of the petitioner is that the enquiry conducted by the ICC was just a farce as the provisions of the regulations were violated. To appreciate the contentions advanced, it would be **WP(C) NO. 703 OF 2022** **8** profitable to have a look at the relevant regulations. 7. Regulation 8 of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 deals with the procedure for conducting enquiry. The said provision reads thus: 8. Process of conducting Inquiry: (1) The ICC shall, upon receipt of the complaint, send a copy of the complaint to the respondent within a period seven days of such receipt. (2) Upon receipt of the copy of the complaint, the respondent shall file his or her reply to the complaint along with the list of documents, and names and addresses of witnesses within a period of ten days. (3) The inquiry has 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 to the Executive Authority of the HEI. Copy of the findings or recommendations shall also be served on both parties to the complaint. (4) The Executive Authority of the HEI shall act on the recommendations of the committee within a period of thirty days from the receipt of the inquiry report, unless an appeal against the findings is filed within that time by either party. ## Xxxxxxxxxxxx 8. In the instant case, Ext.P2 dated 16.12.2021 would reveal that the **WP(C) NO. 703 OF 2022** **9** petitioner was asked to appear before the ICC on the same day at 2 pm. Though the regulations permitted the petitioner to file his reply to the complaint, along with the list of documents and name and addresses of the witnesses, no such opportunity was furnished. From Ext.P6 enquiry report, it appears that the statements of the complainant as well as the petitioner were recorded on 16.12.2021. Six witnesses were examined on 17.12.2021 and 18.12.2021. There is no case for the respondents that the petitioner was afforded an opportunity to cross examine the said witnesses or to produce witnesses in his defence. On 18.12.2021 itself, the enquiry report was submitted before the Registrar and on 20.12.2021, the petitioner was suspended as per Ext.P5 order. 9. It is clear from the sequence of events that a fair opportunity was not granted to the petitioner to defend himself against the allegations levelled against him. The petitioner was summoned to appear before the ICC on 16.12.2021 and his statement was recorded then and there. Records do not reveal that any further opportunity was granted to him. The ICC was bound to follow the principles of natural justice and fairness in the procedure. The minimum that could have been done was to afford the **WP(C) NO. 703 OF 2022 10** petitioner a breathing time to file a reply after furnishing a copy of the complaint. Opportunity also ought to have been granted to produce his witnesses and to controvert the statements of the independent witnesses, whose statements were relied on by the ICC. From the enquiry report, it is clear that the enquiry was concluded on 18.12.2021 and a report was furnished, which was relied on by the University to suspend the petitioner. 10. This Court in Sibu L.S. v. Air India Ltd., New Delhi and Ors . [2016 (2) KLT 374] was confronted with the question of the proper adherence to the principles of natural justice in a sexual harassment complaint, the proceedings in which case were initiated under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. 14. Therefore, the next question is, in what manner the principles of natural justice have to be secured in the enquiry conducted in a complaint relating to the sexual harassment. This is a delicate question to be addressed by the Committee itself. The natural justice has got elasticity and would depend upon the context in which it is referred. 15. The Hon'ble Supreme Court in Dev Dutt v. Union of India, 2008 (8) SCC 725 observed on principles of natural justice is as follows: - "What is natural justice? The rules of natural justice are not codified nor are they unvarying in all situations, rather they are flexible. They may, **WP(C) NO. 703 OF 2022** **11** however, be summarised in one word: fairness. In other words, what they require is fairness by the authority concerned. Of course, what is fair would depend on situation and context." 16. Lord Denning in B. Surinder Singh Kanda v. Government of the Federation of Malaya, 1962 AC 322 observed as follows: - "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them." 17. The fundamental principles relating to the principles of natural justice is that when prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and contradict. In sexual harassment complaint, sometimes the complainant may not have courage to depose all that has happened to her at the work place. There may be an atmosphere restraining free expression of victim's grievance before the Committee. The privacy and secrecy of such victims' also required to be protected. It is to be noted that verbal cross-examination is not the sole criteria to controvert or contradict any statement given by the aggrieved before any authority. Primarily, in a sexual harassment complaint, the committee has to verify and analyse the capability of the aggrieved to depose before them fearlessly without any intimidation. If the Committee is of the view that the aggrieved is feeble and cannot withstand any cross - examination, the Committee can adopt such other measures to ensure that the witness's statement is contradicted or corrected by the delinquent in other manner. The fair opportunity, therefore, has to be understood in the context of **WP(C) NO. 703 OF 2022** **12** atmosphere of free expression of grievance. If the Committee is of the view that the witness or complainant can freely depose without any fear, certainly, the delinquent can be permitted to have verbal cross - examination of such witnesses. In cases, where the Committee is of the view that the complainant is not in a position to express freely, the Committee can adopt such other method permitting the delinquent to contradict and correct either by providing a statement to the delinquent and soliciting his objections to such statement. 18. What is reminded here by this Court to the Committee is that a fair opportunity should be given to the delinquent in such a manner the Committee thinks fit to consider. There is no easy and precise rule defining fair opportunity 11. As held by this Court, an appropriate procedure ought to have been devised by the ICC to ensure that a fair opportunity is granted to the delinquent to substantiate his innocence. As to how it should be done is for the Committee to consider. 12. In the case on hand, I have no doubt in my mind that the procedure adopted by the ICC was in clear violation of Regulation 8 of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015. In that view of the matter, **WP(C) NO. 703 OF 2022 13** Ext.P6 and consequentially Ext.P5 and P8 will stand quashed. It would be open to the respondents to initiate the proceedings afresh in strict adherence to Regulation 8 and in compliance with the principles of natural justice. However, it is made clear that the higher educational institution may impose any of the interim redressal measures that they are entitled to impose in terms of Regulation 9 of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015. This writ petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** NS **WP(C) NO. 703 OF 2022** **14** ## **APPENDIX OF WP(C) 703/2022** PETITIONER(S) EXHIBITS : EXHIBIT P1 TRUE COPY OF COMPLAINT DATED 14.12.2021 SUBMITTED THE 7TH RESPONDENT. - EXHIBIT P2 TRUE COPY OF THE COVERING LETTER DATED 16.12.2021 ALONG WITH EXHIBIT P1. - EXHIBIT P3 TRUE COPY OF NOTIFICATION DATED 02.05.2016 ISSUED BY THE MINISTRY OF HUMAN RESOURCE DEVELOPMENT ISSUED. - EXHIBIT P4 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS 3, 4 AND 5. EXHIBIT P4(a) ENGLISH TRANSLATION OF EXHIBIT P4. EXHIBIT P5 TRUE COPY OF ORDER DATED 20.12.2021 OF THE 4TH RESPONDENT. EXHIBIT P6 TRUE COPY OF ENQUIRY REPORT DATED 18.12.2021 ACCOMPANYING WITH EXHIBIT P5. EXHIBIT P6(a) ENGLISH TRANSLATION OF EXHIBIT P6. EXHIBIT P7 TRUE COPY OF REPRESENTATION DATED 22.12.2021 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P7(a) ENGLISH TRANSLATION OF EXHIBIT P7. EXHIBIT P8 TRUE COPY OF SHOW CAUSE NOTICE DATED 20.12.2021 AND STATEMENT OF ALLEGATION. EXHIBIT P9 TRUE COPY OF APPEAL AGAINST EXHIBIT P5 ORDER OF SUSPENSION, SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P10 TRUE COPY OF APPEAL DATED 31.12.2021 AGAINST EXHIBIT P6, SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT. **WP(C) NO. 703 OF 2022 15** EXHIBIT P11 TRUE COPY OF DETAILED REPLY DATED 31.12.2021 AGAINST EXHIBIT P8, SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P12 TRUE COPY OF THE APPLICATION DATED 28.02.2022 SENT BY THE PETITINER TO 4TH RESPONDENT. EXHIBIT P13 TRUE COPY OF THE SCREEN SHOT OF THE WEB SITE OF THE KUFOS. RESPONDENT(S) EXHIBITS : Exhibit R1A A TRUE COPY OF THE REQUEST DATED 17-12-2021 SUBMITTED BY THE PETITIONER.