# AURELIANO FERNANDES v. STATE OF GOA AND OTHERS

- **Citation:** [2023] 7 S.C.R. 772
- **Court:** Supreme Court of India
- **Decided:** 2023-05-12
- **Case number:** Civil Appeal No. 2482 of 2014
- **Bench:** A. S. Bopanna, Hima Kohli
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/aureliano-fernandes-v-state-of-goa-and-others-37497
- **Pages:** 55

## Headnote

Central Civil Services (Classification, Control and Appeal)
Rules, 1965 - r. 11(IX), r. 14(2) - Central Civil Services (Conduct)
Rules, 1964 - r. 3C - Allegation of sexual harassment at work place
- Defying the principles of natural justice - Appellant was appointed
by the respondent no.2-Goa University - Appellant was accused of
sexual harassment by several girl students - Appellant was served
with notice to explain charges levelled against him - Inquiry
proceedings took place thereafter, in the month of May 2009, when
12 hearings, most of them back to back, were conducted by the
Committee - Appellant was unable to appear due to health reasons,
however, he had sought extension of time, which was denied -
Proceedings proceeded ex-parte and submitted its report establishing
sexual harassment by the appellant - Committee recommended his
termination from service - The Executive Council (EC) accepted
the report submitted by the Committee and the appellant was placed
under suspension with immediate effect - EC proposed to conduct
an inquiry against him under Rule 14 of CCS (CCA) Rules - However,
appellant was informed that in the light of an order passed by the
Supreme Court in Medha Kotwal's case, the report of the Complaints
Committee for Prevention of Sexual Harassment of Women at
Workplace shall be deemed to be an Inquiry Report under the CCS
(CCA) Rules which shall be binding on the disciplinary authority
for initiating disciplinary action against the government servant -
Disciplinary Authority dismissed the appellant from service -
Appellant filed writ petition before the High Court, which was
dismissed - On appeal, held: It is an admitted position that the
inquiry proceedings were aborted at the initial stage itself and it
was the Report of the Committee submitted earlier, that was acted
upon by the EC - The Committee itself was unclear as to the scope
of its inquiry, the appellant cannot be blamed for harbouring an
impression that the remit of the Committee was confined to fact
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finding alone and it was not discharging the functions of a
disciplinary committee, as contemplated under the service Rules -
It is also noteworthy that the time span prescribed under the CCS
(CCA) Rules for concluding an inquiry is ordinarily within a period
of six months from the date of receipt of the order of appointment -
In the instant case, the entire process was wrapped up in flat 39
days - This shows the tearing hurry in which the Committee was to
submit its Report - The undue haste demonstrated by the Committee
for bringing the inquiry to a closure, cannot justify curtailment of
the right of the appellant to a fair hearing - When the legitimacy of
the decision taken is dependent on the fairness of the process and
the process adopted itself became questionable, then the decision
arrived at cannot withstand judicial scrutiny and is wide open to
interference - The discretion vested in the Committee for conducting
the inquiry has been exercised improperly, defying the principles of
natural justice - As a consequence thereof, the impugned judgment
upholding the decision taken by the EC of terminating the services
of the appellant, duly endorsed by the Appellate Authority cannot
be sustained.
Constitution of India - Art. 309 - Conditions of service -
Scope - Art. 309 does not by itself provide for recruitment or
conditions of service of Government servants, but confers this power
on the appropriate legislature to make the laws and on the President
and the Government of a State to make rules relating to these matters
- However, any Act or Rule that violates the rights guaranteed to a
government servant under Article 311, would be void - Similarly,
such an Act or Rule would be treated as void if it violates any of the
fundamental rights guaranteed under Part III of the Constitution.
Constitution of India - Art. 310 - Doctrine of Pleasure -
Article 310 embodies the "Doctrine of Pleasure" and in the context
of Government servants

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SUPREME COURT REPORTS
[2023] 7 S.C.R.
 [2023] 7 S.C.R. 772
772
AURELIANO FERNANDES
v.
STATE OF GOA AND OTHERS
(Civil Appeal No. 2482 of 2014)
MAY 12, 2023
[A. S. BOPANNA AND HIMA KOHLI, JJ.]
Central Civil Services (Classification, Control and Appeal)
Rules, 1965 - r. 11(IX), r. 14(2) - Central Civil Services (Conduct)
Rules, 1964 - r. 3C - Allegation of sexual harassment at work place
- Defying the principles of natural justice - Appellant was appointed
by the respondent no.2-Goa University - Appellant was accused of
sexual harassment by several girl students - Appellant was served
with notice to explain charges levelled against him - Inquiry
proceedings took place thereafter, in the month of May 2009, when
12 hearings, most of them back to back, were conducted by the
Committee - Appellant was unable to appear due to health reasons,
however, he had sought extension of time, which was denied -
Proceedings proceeded ex-parte and submitted its report establishing
sexual harassment by the appellant - Committee recommended his
termination from service - The Executive Council (EC) accepted
the report submitted by the Committee and the appellant was placed
under suspension with immediate effect - EC proposed to conduct
an inquiry against him under Rule 14 of CCS (CCA) Rules - However,
appellant was informed that in the light of an order passed by the
Supreme Court in Medha Kotwal's case, the report of the Complaints
Committee for Prevention of Sexual Harassment of Women at
Workplace shall be deemed to be an Inquiry Report under the CCS
(CCA) Rules which shall be binding on the disciplinary authority
for initiating disciplinary action against the government servant -
Disciplinary Authority dismissed the appellant from service -
Appellant filed writ petition before the High Court, which was
dismissed - On appeal, held: It is an admitted position that the
inquiry proceedings were aborted at the initial stage itself and it
was the Report of the Committee submitted earlier, that was acted
upon by the EC - The Committee itself was unclear as to the scope
of its inquiry, the appellant cannot be blamed for harbouring an
impression that the remit of the Committee was confined to fact
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finding alone and it was not discharging the functions of a
disciplinary committee, as contemplated under the service Rules -
It is also noteworthy that the time span prescribed under the CCS
(CCA) Rules for concluding an inquiry is ordinarily within a period
of six months from the date of receipt of the order of appointment -
In the instant case, the entire process was wrapped up in flat 39
days - This shows the tearing hurry in which the Committee was to
submit its Report - The undue haste demonstrated by the Committee
for bringing the inquiry to a closure, cannot justify curtailment of
the right of the appellant to a fair hearing - When the legitimacy of
the decision taken is dependent on the fairness of the process and
the process adopted itself became questionable, then the decision
arrived at cannot withstand judicial scrutiny and is wide open to
interference - The discretion vested in the Committee for conducting
the inquiry has been exercised improperly, defying the principles of
natural justice - As a consequence thereof, the impugned judgment
upholding the decision taken by the EC of terminating the services
of the appellant, duly endorsed by the Appellate Authority cannot
be sustained.
Constitution of India - Art. 309 - Conditions of service -
Scope - Art. 309 does not by itself provide for recruitment or
conditions of service of Government servants, but confers this power
on the appropriate legislature to make the laws and on the President
and the Government of a State to make rules relating to these matters
- However, any Act or Rule that violates the rights guaranteed to a
government servant under Article 311, would be void - Similarly,
such an Act or Rule would be treated as void if it violates any of the
fundamental rights guaranteed under Part III of the Constitution.
Constitution of India - Art. 310 - Doctrine of Pleasure -
Article 310 embodies the "Doctrine of Pleasure" and in the context
of Government servants, relates to their tenure of service - The
origin of Government servants may be contractual, once appointed
to the post or office, they acquire a status and their rights and
obligations are no longer determined by the consent of both the
parties, but are governed by the Statute or Statutory Rules.
Constitution of India - Art. 311 - Manifestation of the
Principle of Natural Justice - To provide a sense of security of
tenure to Government servants, the framers of the Constitution have
AURELIANO FERNANDES v. STATE OF GOA AND OTHERS
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incorporated safeguards in respect of the punishment or dismissal
or removal or reduction in their rank as provided for in Clauses (1)
and (2) of Article 311 - At the same time, being mindful of the very
same public interest and public good which does not permit that
Government servants found to be corrupt, dishonest or inefficient
be continued in service, a remedy is provided under the second
proviso to Clause (2) of Article 311 whereunder their services can
be dispensed with, without conducting a disciplinary inquiry.
Constitution of India - Art.14 - A Bedrock of Principles of
Natural Justice - Principles of natural justice that are reflected in
Article 311, are not an empty incantation - They form the very
bedrock of Article 14 and any violation of these principles
tantamounts to a violation of Article 14 of the Constitution - Denial
of the principles of natural justice to a public servant can invalidate
a decision taken on the ground that it is hit by the vice of arbitrariness
and would result in depriving a public servant of equal protection
of law.
Principles/Doctrines - Principle of Natural Justice - Twin
anchors : Nemo Judex In Causa Sua and Audi Alteram Partem - The
twin anchors on which the principles of natural justice rest in the
judicial process, whether quasi-judicial or administrative in nature,
are Nemo Judex In Causa Sua, i.e., 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 Audi Alteram Partem, i.e. a person affected
by a judicial, quasi-judicial or administrative action must be
afforded an opportunity of hearing before any decision is taken.
Administration of Justice - Fair action and impartiality in
service jurisprudence - Courts interpret statutory provisions in sync
with the aforesaid principles of natural justice on a premise that no
statutory authority would violate the fundamental rights enshrined
in the Constitution - Further 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 - Reasonableness
infuses lifeblood in procedural matters, be it elements of the notice,
the contents of the notice, the scope of inquiry, the material available
or an adequate opportunity to rebut such material and all of this is
to avoid miscarriage of justice at any stage.
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Central Civil Services (Classification, Control and Appeal)
Rules, 1965 - r. 14 - Expression "as far as is practicable" - The
use of the expression "as far as is practicable" indicates a play in
the joints available to the Complaints Committee to adopt a fair
procedure that is feasible and elastic for conducting an inquiry in
a sensitive matter like sexual harassment at the workplace, without
compromising on the principles of natural justice.
Administration of Justice - Reasonableness into the
procedural regime in Service Matter - 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 - Similarly, 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.
Sexual Harassment of Women at Work Place (Prevention,
Prohibition and Redressal) Act, 2013 - To fulfil the promise that the
PoSH Act holds out to working women all over the country -
Appropriate directions issued.
Allowing the appeal and issuing directions, the Court
HELD: 1. The plea of the appellant that the Committee
understood the remit of its inquiry as a 'fact-finding proceeding',
can be discerned from the contents of the letters dated 17th
March 2009 and 20th April 2009 addressed to the appellant. The
impression carried by the Committee that it was only required to
submit a fact- finding report to the University was no different for
the EC as is borne out from a perusal of the Memorandum dated
8th September 2009, issued by the Chairman of the EC who,
after receiving the Committee's Report, informed the appellant
that an inquiry was proposed to be conducted against him under
Rule 14 of the CCS (CCA) Rules. This was the first time when
the respondents informed the appellant that the EC had decided
to follow the procedure prescribed under the rules of drawing up
a Statement of Articles of Charge, imputation of misconduct in
support of each Article of Charge and other documents and had
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granted the appellant time to submit his reply in defence. The
appellant did submit a reply. But it is an admitted position that
the said inquiry proceedings were aborted at the initial stage itself
and it was the Report of the Committee submitted earlier, that
was acted upon by the EC in terms of a decision taken on 28th
January 2010. when the Committee itself was unclear as to the
scope of its inquiry, the appellant cannot be blamed for harbouring
an impression that the remit of the Committee was confined to
fact finding alone and it was not discharging the functions of a
disciplinary committee, as contemplated under the service Rules.
[Para 61][817-E-H; 818-A]
2. It is also noteworthy that the time span prescribed under
the CCS (CCA) Rules for concluding an inquiry is ordinarily within
a period of six months from the date of receipt of the order of
appointment. But, here, the entire process was wrapped up in
flat 39 days. This shows the tearing hurry in which the Committee
was to submit its Report. One such glaring instance of the over
anxiety to conclude the proceedings is apparent from the letter
dated 5th May 2009, addressed by the Committee to the appellant
informing him that the next date for filing his reply and for
recording further depositions was 12th June 2009. Surprisingly,
on the very next day, the Committee issued yet another letter
advancing the said dates by claiming that an error had crept into
the previous letter and informing the appellant that the date for
filing his reply should be read as '12th May 2009' and the date
for recording further depositions should be read as '14th May,
2009', thus moving the dates back by a whole month. Another
egregious example of the hurry and scurry shown by the
Committee can be gathered from the fact that on 20th May 2009,
the Committee had written to the appellant giving him a last
opportunity to present himself on 20th May 2009, not only to
complete his deposition, but also to cross- examine the
complainants and other witnesses. Simultaneously, the Committee
forwarded six more depositions to the appellant and directed him
to furnish his reply within 48 hours i.e. by 22nd May, 2009. [Para
63][818-E-H; 819-A]
3. The undue haste demonstrated by the Committee for
bringing the inquiry to a closure, cannot justify curtailment of the
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right of the appellant to a fair hearing. The due process, an
important facet of the principles of natural justice was seriously
compromised due to the manner in which the Committee went
about the task of conducting the inquiry proceedings. As noted
above, when the proceedings, subject matter of the present appeal
had taken place, the PoSH Act was nowhere on the horizon and
the field was occupied by the Vishaka Guidelines. The said
Guidelines also did not exclude application of the principles of
natural justice and fair play in making procedural compliances.
The silence in the Guidelines on this aspect could not have given
a handle to the Committee to bypass the principles of natural
justice and whittle down a reasonable opportunity of affording a
fair hearing to the appellant. This Court has repeatedly observed
that even when the rules are silent, principles of natural justice
must be read into them. In its keen anxiety of being fair to the
victims/complainants and wrap up the complaints expeditiously,
the Committee has ended up being grossly unfair to the appellant.
It has completely overlooked the cardinal principle that justice
must not only be done, but should manifestly be seen to be done.
The principles of audi alterem partem could not have been thrown
to the winds in this cavalier manner. [Para 65][819-D-G]
4. When the employer itself was oblivious to the remit of
the Committee and the Committee remained under the very same
impression having described its proceedings as fact-finding in
nature, it was all the more incumbent for the respondents to have
paused on receiving the Report of the First Committee and verify
the legal position before taking the next step. In all this back and
forth, it was the procedure prescribed under Rule 14 for
conducting an inquiry of sexual harassment at the workplace that
came to be sacrificed at the alter of expeditious disposal, which
can neither be justified nor countenanced. The intent and purpose
of the proviso inserted in Rule 14(2) of CCS (CCA) Rules and
Rule 3C of CCS (Conduct) Rules is that the procedure required
to be adopted for conducting an inquiry into the complaint of sexual
harassment that can lead to imposition of a major penalty under
the Rules, must be fair, impartial and in line with the Rules.
Pertinently, the emphasis on adhering to the principles of natural
justice during an inquiry conducted by a Complaints Committee
finds specific mention in Rule 7(4) of the subsequently enacted
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Rules of 2013. But the spirit behind the due process could never
be suppressed or ignored even in the absence of the Statute or
the Rules inasmuch as the principles of natural justice is the very
essence of the decision-making process and must be read into
every judicial or even a quasi-judicial proceeding. [Paras 67,
68][820-D-G]
5. This is not to say that the Committee even if described
as an Inquiring authority, by virtue of the ruling in Medha Kotwal's
case and required to follow the procedure prescribed under Rule
14, 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 pragmatic manner.
In any such proceedings initiated by the Disciplinary Authority, a
calibrated balance would have to be struck between the rights of
a victim of sexual harassment and those of the delinquent
employee. At the same time, fairness in the procedure would
have to be necessarily adopted in the interest of both sides. After
all, what is sauce for the goose, is sauce for the gander. [Para
69][820-H; 821-A-B]
6. In fact, the glaring defects and the procedural lapses in
the inquiry proceedings took place only thereafter, in the month
of May, 2009, when 12 hearings, most of them back-to-back, were
conducted by the Committee at a lightning speed. On the one
hand, the Committee kept on forwarding to the appellant,
depositions of some more complainants received later on and
those of other witnesses and called upon him to furnish his reply
and on the other hand, it directed him to come prepared to crossexamine the said complainants and witnesses as also record his
further deposition, all in a span of one week. Even if the medical
grounds taken by the appellant seemed suspect, the Committee
ought to have given him reasonable time to prepare his defence,
more so when his request for being represented through a lawyer
had already been declined. It was all this undue anxiety that had
led to short-circuiting the inquiry proceedings conducted by the
Committee and damaging the very fairness of the process. [Para
71][821-E-H]
7. For the above reasons, the appellant cannot be faulted
for questioning the process and its outcome. There is no doubt
that matters of this nature are sensitive and have to be handled
with care. The respondents had received as many as seventeen
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complaints from students levelling serious allegations of sexual
harassment against the appellant. But that would not be a ground
to give a complete go by to the procedural fairness of the inquiry
required to be conducted, more so when the inquiry could lead
to imposition of major penalty proceedings. When the legitimacy
of the decision taken is dependent on the fairness of the process
and the process adopted itself became questionable, then the
decision arrived at cannot withstand judicial scrutiny and is wide
open to interference. It is not without reason that it is said that a
fair procedure alone can guarantee a fair outcome. In this case,
the anxiety of the Committee of being fair to the victims of sexual
harassment, has ended up causing them greater harm. [Para
72][822-A-C]
8. This Court is, therefore, of the opinion that the
proceedings conducted by the Committee with effect from the
month of May, 2009, fell short of the "as far as practicable" norm
prescribed in the relevant Rules. The discretion vested in the
Committee for conducting the inquiry has been exercised
improperly, defying the principles of natural justice. As a
consequence thereof, the impugned judgment upholding the
decision taken by the EC of terminating the services of the
appellant, duly endorsed by the Appellate Authority cannot be
sustained and is accordingly quashed and set aside with the
following directions: (i) The matter is remanded back to the
Complaints Committee to take up the inquiry proceeding as they
stood on 5 th May 2009; (ii) The Committee shall afford adequate
opportunity to the appellant to defend himself; (iii) The appellant
shall not seek any adjournment of the proceedings; (iv) A Report
shall be submitted by the Committee to the Disciplinary Authority
for appropriate orders; (v) Having regard to the long passage of
time, the respondents are directed to complete the entire process
within three months from the first date of hearing fixed by the
Committee; (vi) The procedure to be followed by the Committee
and the Disciplinary Authority shall be guided by the principles
of natural justice; (vii) The Rules applied will be as were applicable
at the relevant point of time; (viii) The decision taken by the
Committee and the Disciplinary Authority shall be purely on
merits and in accordance with law; (ix) The appellant will not be
entitled to claim immediate reinstatement or back wages till the
AURELIANO FERNANDES v. STATE OF GOA AND OTHERS
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inquiry is completed and a decision is taken by the Disciplinary
Authority. [Para 73][822-D-H; 823-A-B]
Maneka Gandhi v. Union of India and Another (1978)
1 SCC 248 : [1978] 2 SCR 621; Rustom Cavasjee
Cooper v. Union of India (1970) 1 SCC 248 : [1970] 3
SCR 530; Delhi Transport Corporation v. D.T.C.
Mazdoor Congress and Others (1991) Supp (1) SCC
600 : [1990] 1Suppl. SCR 142; Union of India and
Another v. Tulsiram Patel (1985) 3 SCC 398 : [1985] 2
Suppl. SCR 131 - followed.
Medha Kotwal Lele v. Union of India (2013) 1 SCC
297 : [2012] 9 SCR 895; Hira Nath Mishra and Others
v. Principal, Rajendra Medical College, Ranchi and
Another (1973) 1 SCC 805; P.D. Agrawal v. State Bank
of India and Others (2006) 8 SCC 776 : [2006] 1 Suppl.
SCR 454; Vishaka and Others v. State of Rajasthan
and Others (1997) 6 SCC 241 : [1997] 3 Suppl. SCR
404; A.K. Gopalan v. State of Madras (1950) SCC 228;
Madhyamam Broadcasting Limited v. Union of India &
Others (2023) SCC Online 366; A.K. Kraipak and
Others v. Union of India and Others (1969) 2 SCC 262
: [1970] 1 SCR 457; In re: H.K. (All Infant) (1967) 1
All ER 226; Mangilal v. State of M.P. (2004) 2 SCC
447 : [2004] 1 SCR 1; Union of India v. Col. J.N. Sinha
and Another (1970) 2 SCC 458 : [1971] 1 SCR 791;
Swadeshi Cotton Mills v. Union of India (1981) 1 SCC
664 : [1981] 2 SCR 533; Medha Kotwal Lele and Others
v. Union of India and Others (2013) 1 SCC 311; Dr.
Vijaykumaran C.P.V. v. Central University of Kerala and
Others, (2020) 12 SCC 426 : [2020] 3 SCR 374 - relied
on.
Sandeep Khurana v. Delhi Transco Ltd. And Others ILR
2006 (11) Del 1313; Professor Giridhar Madras v.
Indian Institute of Science represented by Chairman and
Others (2019) SCC Online Kar 3508; Avinash Mishra
v. Union of India 2014 SCC Online Del 1856 - referred
to.
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Case Law Reference
[2012] 9 SCR 895
relied on
para 15
[1985] 2 Suppl. SCR 131
followed
para 21
(1973) 1 SCC 805
relied on
para 25
[2006] 1 Suppl. SCR 454
relied on
para 25
[1997] 3 Suppl. SCR 404
relied on
para 26
[1978] 2 SCR 621
followed
para 37
[1970] 3 SCR 530
followed
para 38
(1950) SCC 228
relied on
para 38
[1990] 1 Suppl. SCR 142
followed
para 39
[1970] 1 SCR 457
relied on
para 41
[2004] 1 SCR 1
relied on
para 42
[1971] 1 SCR 791
relied on
para 43
[1981] 2 SCR 533
relied on
para 44
(2013) 1 SCC 311
relied on
para 49
[2020] 3 SCR 374
relied on
para 57
CIVIL APPELLATE JURISDICTION : Civil Appeal No.2482
of 2014.
From the Judgment and Order dated 15.03.2012 of the High Court
of Judicature at Bombay Bench at Panaji in WP No.602 of 2011.
Bishwajit Bhattacharyya, Sr. Adv., Atul Jha, Pragyan Pradip
Sharma, Surya Narayan Patro, N. B. V. Srinivasa Reddy, Priyonkoo
Anjan Gogoi, P. V. Yogeswaran, Advs. for the Appellant.
Ms. Ruchira Gupta, Shishir Deshpande, Ms. Urvi Kapoor, Deep
Narayan Sarkar, Advs. for the Respondents.
The following Judgment of the Court was delivered:
I N D E X*
A.
Scope of the Appeal
1
B.
Sequence of Events
1-8
AURELIANO FERNANDES v. STATE OF GOA AND OTHERS
Ed. Note : Pagination in the Index is as per the original judgment
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(a)
Proceedings before the First
Committee
1-6
(b)
Proceedings before the Executive
Council
6-8
C.
Decision of the Disciplinary Authority
and the Appellate Authority
8-9
D.
Decision of the High Court
9-10
E.
Arguments advanced by counsel for the
parties
10-16
(a)
Counsel for the appellant
10-12
(b)
Counsel for the respondents
No. 2 & 3
12-16
F.
The TRIAD: Articles 309, 310 and 311
of the Constitution of India
16-19
(a)
Article 309: Conditions of Service
17
(b)
Article 310 : Doctrine of Pleasure
18
(c)
Article 311 : A Manifestation of the
Principles of Natural Justice
19
G.
Article 14 : Bedrock of the Principles of
Natural Justice
 20-21
H.
The Twin Anchors : Nemo Judex In Cause
Sua and Audi Alterem Partem
21-26
I.
Fair Action and Impartiality in Service
Jurisprudence
26-29
J.
The Statutory Regime
29-31
(a)
Goa University Statute
29
(b)
CCS (CCA) Rules
29-30
(c)
Pragmatic Application of the
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"As far as is practicable" Rule
30-31
K.
Journey from "Vishaka" Case to the Posh
Act
31-38
(a)
Vishaka Guidelines: Filling in the
vacuum
31-33
(b)
Medha Kotwal Lele's case : Follow up
through continuing mandamus
33-36
(c)
Enactment of the Posh Act and
Rules
36-37
(d)
Breathing Reasonableness into the
Procedural Regime
37-38
L.
Analysis and Discussion
38-49
(a)
Scope of interference by the High
Court in Judicial Review
39-40
(b)
Extent of Adherence to the "as far as
practicable" norm
 40-42
(c)
The Committee's Understanding of its
mandate
42-44
(d)
Whirlwind Proceedings
44-47
(e)
How did the Executive Council
Falter?
 47-49
M.
Conclusion
49-52
N.
Epilogue
53-55
O.
Directions
55-59
****
HIMA KOHLI, J.
A. SCOPE OF THE APPEAL
1. A challenge has been laid by the appellant to the judgment
dated 15th March, 2012, passed by the High Court of Judicature at
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Bombay Bench, at Goa, dismissing a writ petition1 preferred by him
against an order2 passed by the Executive Council3 of Goa University
(Disciplinary Authority) accepting the Report4 of the Standing Committee
for Prevention of Sexual Harassment at Work Place5 and imposing upon
him, a major penalty of dismissal from services and disqualification from
the future employment under Rule 11(IX) of the Central Civil Services
(Classification, Control and Appeal) Rules, 19656 which was duly upheld
by the Governor and the Chancellor of Goa University, being the Appellate
Authority7.
B. SEQUENCE OF EVENTS
(a) PROCEEDINGS BEFORE THE FIRST COMMITTEE:
2. The factual matrix of the case needs to be placed in a
chronological sequence. The appellant commenced his career in the
respondent no. 2 - Goa University as a Temporary Lecturer in the
Department of Political Science, in the year 1996. He was appointed as
the Head of the said Department, in the year 2003. It is the appellant's
version, which is strongly refuted by the other side, that aggrieved by the
passing of a resolution by the Departmental Council of the Department
of Political Science against them, two girl students along with their friends
submitted a complaint to the respondent no.2 - University, alleging physical
harassment at his hands. The said complaints8 were the starting point of
an inquiry initiated by the Committee on receiving complaints by the
Registrar of the respondent no. 2 - University9. The Committee served
a notice10 on the appellant calling upon him to explain the charges levelled
against him in nine complaints and to appear before it for a personal
hearing on 24th April, 2009, a date that was subsequently changed to
27nd April, 2009. Contemporaneously, the Registrar of the respondent
no. 2 - University directed the appellant to hand over charge and proceed
on leave till the conclusion of the inquiry.
1 W.P. No. 602 of 2011
2 Dated 10th May, 2010
3 For short 'EC'
4 Dated 05th June, 2009
5 For short ' The Committee'
6 For short the CCS (CCA) Rules
7 Vide Order dated 19th April, 2011
8 Complaint dated 11.03.2009 & 17.03.2009
9 Under cover of letter dated 08.04.2009
10 Dated 17th April, 2009
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3. The appellant furnished a detailed reply to the Committee,
running into fifty-three pages wherein he raised some preliminary
objections to the inquiry being conducted by the Committee, alleged a
well-organized conspiracy against him by some wayward students in
connivance with the members of the faculty and refuted the contents of
fourteen depositions of girl students forwarded to him by the Committee.
He concluded by stating that the charges of sexual harassment levelled
against him were completely false and baseless. The appellant also
addressed a letter to the Registrar seeking removal of two Members of
the Committee on the ground of bias and on a plea that being his
subordinates, they were prone to bias.
4. The Committee called the appellant for a hearing on 27th April,
2009. It was alleged by the appellant that the deposition of all the
complainants including the witness named by him were recorded while
he was made to wait outside the Committee room. He was called later
on and the Committee recorded his statement. Even on the next hearing,
on 28th April, 2009, a similar procedure was adopted by the Committee.
On 30th April, 2009, the appellant received a notice from the Committee
enclosing therewith another complaint of sexual harassment received
against him to which he was directed to respond and present himself on
6th May, 2009. Vide letter 2nd May 2009, the appellant sought more time
to submit a reply to the additional complaint and permission to engage an
Advocate to appear for him before the Committee.
5. The appellant submitted his reply to the notice on 8th May, 2009.
On 6th May, 2009, the request of the appellant to engage a lawyer was
declined by the Committee. On the same day, a corrigendum was issued
by the Committee to the earlier letter11 informing him that the next date
fixed for filing his reply should be read as "12th May, 2009" instead of
"12th June, 2009" and the date for further deposition should be read as
"14th May, 2009" instead of "12th June, 2009".
6. Vide letter dated 8th May, 2009, the appellant objected to the
inquiry being conducted by the Committee on a complaint12 received
from an ex-student of the respondent no. 2 - University on the ground
that she was neither a student nor an employee of the University.
Additionally, he asked for a copy of the said complaint, besides the
statement of deposition that had already been furnished to him.
11 Dated 5th May, 2009
12 Signed on 27th April, 2009
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7. On 12th May, 2009, the appellant forwarded an affidavit of a
witness to refute some of the allegations levelled against him by the
complainants. Vide letter of even date, the Committee forwarded an
additional deposition of a member of the Faculty, Dr. Rahul Tripathi,
who had stepped down from the Committee constituted to look into the
complaints against the appellant and deposed as a witness.
8. The appellant wrote a letter dated 13th May, 2009 to the
Committee seeking some time to appear before it on a plea that he was
admitted in the hospital with a severe back-ache. Vide notice dated 14th
May, 2009, the Committee directed the appellant to appear before it on
19th May, 2009 for recording his deposition and for submitting his written
reply to the fresh deposition of the other complainant. Further extension
of time, as requested, was however declined by the Committee.
9. In the meantime, vide letter dated 13th May, 2009, the appellant
applied to the respondent no.2 - University seeking voluntary retirement
on health grounds. However, the said application was withdrawn by him
on 18th May, 2009. On the same date, an advocate engaged by the
appellant's brother issued a notice to the respondents no.2 and 3 seeking
extension of time by one month for the appellant to appear before the
Committee.
10. In its letter dated 20th May, 2009, the Committee noted that
though the appellant had failed to appear before it on 19th May, 2009 for
recording his further deposition, he was being granted one last opportunity
to present himself on 23rd May, 2009, for completing his deposition and
for cross-examining the witness including the complainants. Alongside,
six more depositions were forwarded to the appellant, seeking his reply
by 22nd May, 2009.
11. The appellant addressed yet another letter13 to the Committee
expressing his inability to attend the proceedings on 23rd May, 2009, on
health grounds and requested for postponement of the proceeding by 34 weeks. However, his request was turned down by the Committee on
the very same day and the appellant was directed to remain present on
23rd May, 2009, failing which, he was informed that the Committee would
proceed further with the inquiry. A second request14 made by the appellant
for seeking postponement of the proceedings of the Committee, met the
same fate.
13 Dated 22nd May, 2009
14 Dated 23rd May, 2009
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12. After about ten days, the appellant sent a letter15 to the
Chairperson of the Committee stating inter alia that he had partially
recovered from his ailment and was in a position to depose. He sought
fresh dates to enable him to furnish a reply to the additional depositions
received by him. However, by then the Committee had proceeded exparte against the appellant and submitted its Report16 to the Registrar of
the respondent no. 2 - University stating that 18 meetings had taken
place in connection with the inquiry that had established sexual harassment
of the complaints by the appellant which act amounted to a grave
misconduct and was in gross violation of Rule 3(1)(III) of the CCS
Conduct Rules and consequently, recommended termination of his
services.
(b) PROCEEDINGS BEFORE THE EXECUTIVE
COUNCIL
13. The EC held a meeting on 13th June, 2009 wherein the Report
submitted by the Committee was accepted and the appellant was placed
under suspension with immediate effect. Vide Memorandum dated 8th
September, 2009, the Chairman of the EC informed the appellant that
the EC proposed to conduct an inquiry against him under Rule 14 of the
CCS (CCA) Rules. Enclosed with the said Memorandum, was the
statement of the Articles of Charge, statement of the imputation of the
misconduct in support of each Article of Charge, list of documents and a
list of witnesses for sustaining the said charges. The appellant was given
ten days' time to submit a written statement of his defence and state
whether he desired to be heard in person.
14. The appellant submitted a detailed reply to the aforesaid
Memorandum, running into twenty pages and also demanded several
documents and information relating to the complaints of sexual
harassment made against him, on the plea that they were relevant for
submitting his written statement which was turned down by the Vice
Chancellor of the respondent no. 2 - University17 and he was granted
twenty days to respond.
15. On 15th October, 2009 the EC appointed a former Judge of
the Bombay High Court to conduct an inquiry into the charges framed
against the appellant and he was informed that the Inquiry Officer will
15 Dated 4th June, 2009
16 Dated 5th June, 2009
17 vide letter 17th September, 2009
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hold a preliminary inquiry into the charges framed against him on 9th
November, 2009. The first sitting of the Inquiry Committee conducted
on 9th November, 2009, was duly attended by the appellant and his
Advocate. The second meeting was scheduled on 7th December, 2009
on which date when the Presenting Officer appearing on behalf of the
respondent no. 2 - University referred to the judgment dated 26th March,
2004, passed by this Court in the case of Medha Kotwal Lele and
Others v. Union of India and Others18 and the amendment19 to the
proviso to Rule 14(2) of the CCS (CCA) Rules that provides that where
there is a complaint of sexual harassment within the meaning of Rule 3C
of the Central Civil Services (Conduct) Rules, 196420, the Complaints
Committee shall be deemed to be the inquiring authority for the purpose
of imposing major penalties, the Inquiry Officer decided to keep the
inquiry in abeyance, so as to ascertain as to whether any further directions
had been issued by the Supreme Court in Medha Kotwal's case (supra).
16. On 15th December, 2009, the Registrar of the respondent no.
2 - University informed the appellant that the disciplinary proceedings
initiated against him on the recommendations made by the EC in its
meeting held on 12th December, 2009, stood terminated and the order
appointing the Inquiry Officer had also been withdrawn in the light of
the order dated 26th April, 2004, passed by the this Court in Medha
Kotwal's case holding that the report of the Complaints Committee for
Prevention of Sexual Harassment of Women at Workplace shall be
deemed to be an Inquiry Report under the CCS (CCA) Rules which
shall be binding on the disciplinary authority for initiating disciplinary
action against the government servant. Describing the decision taken by
the EC on 14th June, 2009 of appointing an Inquiry Officer to inquire into
the charges framed against the appellant as inadvertent, the Registrar
informed the appellant that the disciplinary authority will decide the further
course of action against him under the extant rules.
C. DECISION OF THE DISCIPLINARY AUTHORITY
AND THE APPELLATE AUTHORITY
17. This was followed by issuance of a Memorandum21 by the
Vice-Chancellor of the respondent no. 2 - University on behalf of the
18 (2013) 1 SCC 297
19 Dated 1st July, 2004
20 CCS (Conduct) Rules
21 Dated 17th February, 2010
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EC informing the appellant that in its meeting conducted on 28th January,
2010, the EC had accepted the report of the Committee and decided
that he was unfit to be retained in service in view of the gravity of the
charges levelled against him. Proposing to impose a major penalty of
dismissal thereby disqualifying him from future employment as
contemplated under the Rules22, the appellant was granted two weeks
to submit his representation.
18. The appellant submitted his reply on 13th March, 2010. After
examining his reply, the disciplinary authority dismissed the appellant
from service vide order dated 10th May, 2010. The appeal23 preferred
by the appellant against the said dismissal order was rejected by the
order24 of the Appellate Authority25.
D. DECISION OF THE HIGH COURT
19. The said orders were challenged before the Bombay High
Court. The High Court observed that the Committee had granted ample
opportunities to the appellant to cross-examine the complainants and the
witnesses, but he had deliberately elected not to appear before it. In
such circumstances, the Committee could not be blamed for proceeding
ex-parte against him and submitting its Report. It was also held that the
Committee was justified in discarding the medical certificates submitted
by the appellant as he kept on making flimsy excuses to stay away from
the enquiry proceedings. The plea of the appellant that the Committee
was improperly constituted or its composition was questionable as it
comprised of persons who were junior to him in the Department, was
rejected as meritless. Further, the contention that the enquiry had been
conducted with undue haste, without giving a fair and reasonable
opportunity to the appellant to defend himself, was also turned down. As
a result, the High Court did not see any merits in the said writ petition
which was dismissed holding that there was no breach of the principles
of natural justice and the Service Rules in the case.
E. ARGUMENTS ADVANCED BY COUNSEL FOR THE
PARTIES :
(a) COUNSEL FOR THE APPELLANT
22 Rule 11 (IX) CCS CCA, 1965
23 Appeal dated 25th June, 2010
24 Dated 19th April, 2010
25 Governor of Goa and Chancellor of Goa University
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20. Arguing on behalf of the appellant, Mr. Bishwajeet
Bhattacharya, learned Senior counsel has assailed the impugned judgment
on several counts. The main thrust of his arguments is that the dismissal
order26 passed by the Disciplinary Authority and upheld by the Appellate
Authority is based solely on the Report submitted by the Committee
which was nothing more than a fact-finding proceeding that had
commenced on 17th March, 2009 and concluded on 5th June, 2009; that
though the inquiry had purportedly commenced on 17th March, 2009, the
first hearing had actually taken place only on 27th April, 2009 and the
entire proceedings were hurriedly closed within a span of thirty-nine
days, by relying on forty-eight documents and forty-three depositions in
the course of eighteen meetings without affording the appellant adequate
opportunity to defend himself and present his case.