In this case Mr. Auroliano Farnandes, the appellant is an HOD in the Department of Political Science, University of Goa who began as a lecturer on an ad-hoc basis from 1996. Mr. Farnandes was alleged to have physically harassed the girl students of the Department repeatedly. Complaints were registered in 2009. There were a total of nine complaints and the Committee issued him a notice to present him on April 24, 2009 which later changed to April 27, 2009. The Registrar of University of Goa has asked Mr. Farnandes to hand over his charge(duties) to the University and took leave till the inquiry was going on.
The Appellant filed a fifty-three(53) page reply to the Committee in which he said that there is a well-organized conspiracy against him by some indisciplined students along with some faculty members. He clearly showed in the reply that the content of the complaint is completely false and baseless. The appellant also wrote a letter to the Registrar seeking removal of two faculty members in the Committee on the ground of bias as they were his subordinates.
Issue in Aureliano Farnandes vs. State of Goa
Whether the procedure adopted by the respondents No. 2 and 3 herein violated the principles of natural justice and thereby caused prejudice to Mr. Aureliano Farnandez.
Main Arguments
Mr. Bhishwajeet Bhattacharya, senior counsel argued on behalf of the appellant. He contended that the dismissal order was based only on a report submitted by the committee which was nothing more than a fact finding report.
The inquiry was rushed, the entire proceedings were hurriedly closed within a span of thirty-nine days, relying on forty-eight(48) documents, forty-three (43) depositions, and eighteen(18) meetings. Still, no adequate opportunity was given to the faculty member to present his version.
It was argued that though the Committee had accepted the request of the appellant for extension of time and had granted him time till 12th June, 2009, the period was abruptly curtailed by almost one month and the date was advanced to 14th May, 2009, without any justification and without informing the appellant. When the appellant wrote to the Committee seeking a new date for his further deposition and for conducting further proceedings, only then he came to know that the Committee had concluded its proceedings and submitted its Report on 5 th June, 2009 itself. It was finally contented that the principles of natural justice were violated grossly by the Goa University and the faculty member had been made to suffer by denying him an opportunity of fair hearing and fair trial. The order of dismissal has caused him serious prejudice.
Further it was argued that Article 311(2) proviso had also not been complied with.
The counsel for respondents no. 2 and 3 stated that the Committee had afforded adequate opportunities to the faculty to cross-examine the witnesses of respondents, produce his witnesses and complete his own version but he was delaying the proceedings under one pretext or the other. Referring to the Report, the counsel stated that it shows that the Committee exercised its discretion by keeping a balance and conducted the proceedings without violating the principles of natural justice, which is amply borne out from a perusal of the Report itself. All the statements of the seventeen students and other witnesses were provided to him. He was afforded ample opportunity to respond to the said complaints, cross-examine the witnesses and produce his own witnesses in defence not just by enquiry committee but also by the Disciplinary Authority and the Appellate Authority before taking any action against him.
The Triad of Articles 309, 310, 311 of the Constitution of India
Part XIV of the Constitution is dedicated to the Services under the Union and the States. Article 309 of the Constitution provides for recruitment and conditions of service of persons serving the Union or a State. Article 310 refers to the tenure of office of persons serving the Union or a State. Article 311 discusses the conditions of dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.
Conditions of Services
The expression “conditions of service” in Article 309 takes in its scope all such conditions that regulate holding of a post by a person which begins from the time he enters the service till his retirement,dismissal and even post-retirement, in relation to matters like pension, pending disciplinary proceedings, etc.
A Statute can be enacted by the appropriate Legislature or Rules can be made by the appropriate Executive under Article 309 for prescribing the procedure and the authority who can initiate disciplinary action against a Government servant .
Doctrine of Pleasure
Article 310(1) says that the tenure of Government servants is subject to the pleasure of the President or the Governor of a State except as when the Constitution expressly provides for some other condition. This Article is analogous to the rights of the Crown/King in England where all public officers and servants of the Crown are appointed at the pleasure of the Crown/King and their services can be terminated at will, without notifying any reason. All members of such services who receive their stipend from the public exchequer, whether at the top of the hierarchy or at the very bottom of the hierarchy, are finally accountable to the public and expected to discharge their duties responsibly, efficiently, effectively and above all, for the highest good of the public.
Principle of Natural Justice under Article 311
Article 311 of the Constitution manifests the basic principles of natural justice. It is the rule of fair hearing.It imposes a duty on the Government to ensure that any such decision against the public servant is started with an inquiry that provides an opportunity of hearing to the public servant, so that he can represent against such a decision.
Here in this Article the Constitution framers tried to balance protection of public servant and public both.Principle of natural justice says that public servants must not be treated unfairly. They must be given notice, opportunity to speak against the allegations, etc. But if the conduct of the concerned public servant goes against the welfare of the public their services can be terminated under Article 311(2) even without the inquiry.
Thus, the golden thread that joins these three Articles 309, 310 and 311 is public interest, directed towards larger public good. Together, they form a triad and symbolize the guiding principle, i.e., Doctrine of Public Policy.
Article 14 of the Constitution of India and Natural Justice
Hon’ble Supreme Court said that Article 14, often seen as the ‘Constitutional Guardian’ of the principles of natural justice. Article 14 ensures that any law or administrative action is fair where both the parties or all stakeholders have been given a chance of being heard. There is no bias towards anyone and only application of legal and judicial points. This is where principles of natural justice come to play. Article 14 expressly forbids the State, as defined in Article 12, from denying to any person, equality before the law or equal protection of the laws. It expresses guarantee of equality before the law to all persons and extends a protection to them against discrimination by any law. Article 13(3)(a) defines law to include any ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India, the force of law. Principles of natural justice guaranteed under Article 14, prohibit a decision-making adjudicatory authority from taking any arbitrary action, be it substantive or procedural in nature.Principles of natural justice that are reflected in Article 311, form the very bedrock of Article 14 and any violation of these principles tantamounts to a violation of Article 14 of the Constitution.
Nemo Judex in Causa Sua and Audi Alteram Partem
There are two fundamental pillars of natural justice. One is, “Nemo Judex in Causa Sua”, and the other is “Audi Alteram Partem”. One says, no person shall be a judge in his own cause as justice should not only be done, but should manifestly be seen to be done, and the other says, a person affected by a judicial, quasi-judicial or administrative action must be afforded an opportunity of hearing before any decision is taken. We have a most important authority on internalization and incorporation of these pillars of natural justice, Maneka Gandhi vs. Union of India (1978). In this case, the passport of the appellant was impounded without any valid reason behind this action by the respondent state. Hon’ble Justice P.N. Bhagwati authored the judgement and observed that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise. Opportunities that may be regarded as reasonable would necessarily depend on the practical requirements of the situation. Therefore, it was held that life and liberty of a person cannot be restricted by any procedure that is established by law, but only by procedure that is just, fair and reasonable.
Procedural fairness plays a major role in ascertaining that principles of natural justice have been followed. This was highlighted by a Division Bench in Madhyamam Broadcasting Limited vs. Union of India and Others(2023). The then Hon’ble Chief Justice of India D.Y. Chandrachud said that The core of natural justice ensures a reasonable procedure, which is a constitutional requirement under Articles 14, 19, and 21. The principle of “Audi Alteram Partem” includes important elements like notice, proper contents of the notice, access to inquiry reports, and other materials for perusal. Depending on the situation some modifications are allowed. However, the rules of natural justice cannot be modified to such an extent that their core is gone, because this core ensures procedural reasonableness.The burden is on the applicant to show that the procedure followed or not followed by the adjudicating authority has actually violated the core right to a fair and reasonable hearing.
Fair Action and Impartiality in Service Jurisprudence
Hon’ble Apex Court went on and said that In service law, it is mandatory to provide for a Government servant or an employee a reasonable opportunity of being heard and give his explanation in his/her defence before an order is passed. In Mangilal vs. State of Madhya Pradesh (2004), Hon’ble Supreme Court said that the courts must grant an opportunity to the person against whom the trial has started before passing an order of compensation. The ability to pay such a person should also be kept in mind.
In Tulsiram Patel vs. Union of India(1985), Hon’ble Supreme Court held that the principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of State in Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matters fairly and impartially.
In a nutshell, When it comes to authorities that are expected to discharge judicial and quasi-judicial functions, the rule of Audi Alteram Partem applies with equal force.
Statutes for University’s Teachers
University of Goa is governed by the Goa University statute SSB-1(XXVI). Service conditions SC-6(1) says that for departmental action or disciplinary inquiry the teachers shall be governed under CCS(CCA) Rules, 1965. The relevant rule for this case is Rule 3(c). Which prohibits sexual harassment of working women. This rule prohibits public servants from sexually harassing any woman at the workplace. Incharge of that workplace will take relevant steps on such complaints. IT further describes sexual harassment as follows:
“Sexual harassment can be one or more following acts, namely:
- Physical contacts and advances;or
- Demand or request of sexual favours; or
- Making sexually coloured remarks;or
- Showing pornography;or
- Any other unwelcome physical,verbal or non-verbal conduct of a sexual nature.”
Rule 14 specifies that inquiry is a must in these complaints. Disciplinary authority shall appoint an inquiry authority.
A Journey from Vishaka to POSH
After Fifteen(15) years from the decision of Vishaka vs. State of Rajasthan(1997) the Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act, 2013 came into being on December 09, 2013. This Act provides a complete framework for prevention of sexual harassment at the workplace.
It provides for the formation of Internal Complaints Committees(ICC) and Local Committees at district level. Vishaka’s case provided the guidelines to give a structure to the procedure to deal with cases of sexual harassment. Vishaka Guidelines has taken the shape of POSH Act, 2023.The fundamental principle required to be kept in mind is that the person accused of misconduct at the workplace must be informed of the case, must be supplied the evidence in support thereof and be given a reasonable opportunity to present his arguments before any decision is taken against him. The inquiry must be free from the taint of arbitrariness, unreasonableness or unfairness.
The Guidelines directed creation of a complaints mechanism to ensure time bound treatment of complaints, constitution of a Complaints Committee and recommended disciplinary action where such conduct amounted to misconduct in employment ‘as defined by the relevant service rules.
Further in Medha Kotwal Lele vs. Union of India and others (2012), Vishaka guidelines were strengthened. It provided for the implementation of Vishaka guidelines in letter and spirit. It was held that Complaints Committee will be deemed to be an inquiry authority for the purposes of the Central Civil Services (Conduct) Rules, 1964 (hereinafter called the CCS Rules) and the report given by the Complaints Committee shall be considered an inquiry report under the CCS Rules.
Analysis
While exercising the power of judicial review, the hon’ble High Court has to examine that no injustice has been caused. It has to only examine that the findings are supported and procedure carried out was fair and faulted on account of procedural illegalities or irregularities not acting as appellate authority. The purpose of judicial review is not only to ensure that the individual concerned receives fair treatment, but also to ensure that the authority, after according fair treatment, reaches a conclusion, which is correct in the eyes of law as held in Apparel Export Promotion Council vs. A.K. Chopra(1999). The High Court in its writ jurisdiction should not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The Court is under a duty to satisfy itself that an inquiry into the allegations of sexual harassment by a Committee is conducted in terms of the service rules and that the concerned employee gets a reasonable opportunity to vindicate his position and establish his innocence.
The Committee was expected to conduct the inquiry as if it was a full-fledged trial. The expression used in the proviso to Rule 14(2), ‘as far as practicable’ has to be read and understood in a practical way not just by following ideas or principles. In any such proceedings initiated by the Disciplinary Authority,a careful balance has to be maintained between the rights of a victim of sexual harassment and those of the delinquent employee. At the same time, fairness in the procedure is also necessary in the interest of both sides. The same rule is applicable on both sides.
Final Verdict
Rule of fair hearing says that a person against whom an inquiry or trial has started should be informed about all allegations and charges. It must not be releasing an order by listening to the victim or passing a judgement too quickly after listening to one sentence. That person should also be told all evidence whether oral or documentary which are presented to prove him/her guilty. So that he can inspect the documents, get the witnesses examined before him/her. He/she should get the right to cross-examine all witnesses, and lead his/her evidence for defence. The rules of natural justice are neither codified or passed by legislature nor are they cast in stone so that they cannot be changed. This means they are flexible and can be adapted as per the facts and circumstances, and they can be modified by law.
Although the Committee appointed by the Disciplinary Authority did not hold an inquiry strictly in terms of the step-by-step procedure laid down in Rule 14 of the CCS (CCA) Rules. But it furnished copies of all the complaints, the statements of the complainants and the relevant documents and evidence to the appellant. The Disciplinary Authority called upon him to file his reply in his defence and directed him to furnish the list of witnesses from his side.The appellant had also furnished a detailed reply in defence. He had also submitted a list of witnesses and submissions. Till here everything was under the compliance of Rule 14. Lapses started from May 2009 when back to back twelve hearings took place in the lightening speed.Even if the medical grounds taken by the appellant seemed faulty or cannot be trusted, the Committee ought to have given him reasonable time to prepare his defence, more so his request to be presented by a lawyer was also declined. This anxiety led to lack of fairness. University of Goa received seventeen complaints and they tried to be fair and concerned for such serious allegations for the interest of the female students. This tension to stay fair to victims of sexual harassment formed the base of more harm than good even to the termination of employment of the appellant.The discretion vested in the Committee for conducting the inquiry has been against the principles of natural justice. As a consequence thereof, the challenged judgement upholding the decision taken by the Enquiry Committee of ending the services of the appellant, approved by the Appellate Authority cannot be sustained and is accordingly quashed and set aside. The court also issued further guidelines to ensure that all working women are safe. The court also directed the Union of India, state government/union territories to file their affidavit within eight weeks for reporting compliances..
Directions Issued
For effective implementation of the PoSH Act, hon’ble court gave the following directions:
- They made it mandatory for Union Government, state governments and Union Territories that they must ensure that all the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. have constituted ICCs/LCs/ICs, in timebound manner and they are composed strictly as per the provisions of the PoSH Act.
- The concerned organisation or authority will furnish all the information regarding the constitution and composition of the ICCs/LCs/ICs, details of the e-mail IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, as also the relevant rules, regulations and internal policies on their respective websites. That information shall be updated time to time as and when required.
- The same compliance applies equally on (a) Apex and State level bodies of professionals like doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals, (b) by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes.
- The authorities/ managements/employers shall take immediate and effective steps to ensure that members of the ICCs/LCs/ICs are familiar with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace. This includes the time period right from the receipt of the complaint till till the inquiry is finally concluded and the Report submitted.
- There shall be regular conduct of orientation programmes, workshops, seminars and awareness programmes to upskill members of the ICCs/LCs/ICs and to educate women employees and women’s groups about the provisions of the Act, the Rules and relevant regulations by the authorities/management/employers.
- The National Legal Services Authority (NALSA) and the State Legal Services Authorities(SLSAs) shall develop modules to conduct workshops, awareness programmes to sensitize authorities/managements/employers, employees and adolescent groups with the provisions of the PoSH Act, which shall be included in their annual calendar.
- It has been made compulsory for National Judicial Academy and State Judicial Academies to organise orientation programmes, seminars and workshops for capacity building of members of the ICCs/LCs/ICs established in the High Courts and District Courts. Also, for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules.
Conclusion
It is almost more than a decade that PoSH has come into being. Now it’s the high time to see its implementation and effect. The main working lies with the Internal Complaints Committee,local committees, Internal committees An improperly constituted committee will not serve any purpose rather create an impediment in achieving its objectives. An inquiry which is rushed and pushed or in simple terms half-cooked can lead to serious consequences, namely, imposition of major penalties on the delinquent employee, to the point of termination of service. Being a victim of sexual harassment not only dents the selfesteem of a woman, it also takes a toll on her emotional, mental and physical health. It is often seen that when women face sexual harassment at the workplace, they are reluctant to report such misconduct. Many women even leave their jobs. This also leads to lack of confidence in the process and its outcome. We require an effective and strong implementation of the PoSH Act. It is important to bring awareness to the complainant regarding the functioning and implementation of the Act.They must be made aware of how a complaint can be registered, the procedure that would be adopted to process the complaint, the objective manner in which the ICC/LC/IC is expected to function under the Statute, the nature of consequences that the delinquent employee can be visited with if the complaint is found to be true, the result of lodging a false or a malicious complaint and the remedies that may be available to a complainant if dissatisfied with the Report of the ICC/LC/IC etc. If the authorities/management/employers cannot assure them a safe and secure work place, they will fear stepping out of their homes to make a dignified living and exploit their talent and skills. So the hon’ble court issued directions for the Union Government and the State Governments to take necessary positive action and make sure that the altruistic object behind enacting the PoSH Act is achieved in real terms.
References
- https://api.sci.gov.in/supremecourt/2012/21189/21189_2012_17_1501_44461_Judgement_12-May-2023.pdf
- https://www.equalrightstrust.org/ertdocumentbank/Case%20Summary%20Medha%20Kotwal%20Lele%20Vs%20%20Union%20of%20India%20October%202012.pdf
- https://cag.gov.in/uploads/cms_pages_files/Vishkha-Guidelines-against-Sexual-Harassment-in-Workplace-061de8308de91c7-65164897.pdf
- https://poshatwork.com/importance-of-service-rules-when-dealing-with-posh-act/
