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2018 DIGILAW 685 (GAU)

Sushmita Purkayastha v. State of Assam

2018-04-20

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

body2018
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. K.N. Choudhury, learned senior counsel for the appellant as well as Ms. R. Choudhury, learned counsel for the respondents in the Education Department, Mr. R.D. Choudhury, learned Senior Government Advocate for the Deputy Commissioner, Cachar, Mr. J. Patowary, learned counsel for the Governing Body of the respondent college and Mr. P.K. Tiwari, learned senior counsel for the respondent No. 5. The respondent No. 5 is the Principal of Women College, Silchar, who by virtue of his appointment is also the ex officio Secretary of the Governing Body of the college. Some of the teachers as well as employees, of the college had lodged a written complaint against the respondent No. 5, alleging sexual harassment and mental torture being inflicted by him against some of the women employees. The complaint so lodged also included an alleged incident of the respondent No. 5 having sent an obscene e-mail to the librarian of the college. 2. In consequence thereof the Governing Body of the college by its resolution No. (a) dated 03.04.2014 had constituted an "Internal Complaints Committee" (ICC). The ICC so constituted was as follows: "1. Dr. (Mrs.) Aparajita Chowdhury Ex-Director, College Development Council Assam University, Silchar, Ex-Principal, G.C. College, Silchar, R.S. Girls' College, Karimganj and Women's College, Silchar.: Presiding Officer 2. Dr. Sankar Bhattacherjee, Ex-Principal Women's College, Silchar.: Member 3. Dr. Sunanda Nandi Purkayastha Former Associate Professor Deptt. of Education Women's College, Silchar.: Member 4. Smti. Sonalembi Devi Programme Coordinator Women in Government Assam C/O Surjya Kanta Singha Vill. Pakaipar P.O. Kabuganj, Cachar.: Member 5. Dr. Bibhash Dev, Director, College Development Council & Member, Governing Body, Women's College, Silchar.: Member 6. Prof. Snigdha Das Roy Deptt. of Sanskrit. AUS & Member, Governing Body Women's College, Silchar.: Member 7. Mrs. Susmita Purkayastha, Advocate Kanakpur, Silchar.: Member 8. Mrs. Sumita Shome, Advocate Malugram, Silchar.: Member". The communication of the President of the Governing Body dated 04.04.2014 notified the constitution of the ICC and the terms of its reference, which also included the incident related to the aforesaid e-mail, as well as, the allegations made by the teachers of the college against the Principal. 3. Mrs. Sumita Shome, Advocate Malugram, Silchar.: Member". The communication of the President of the Governing Body dated 04.04.2014 notified the constitution of the ICC and the terms of its reference, which also included the incident related to the aforesaid e-mail, as well as, the allegations made by the teachers of the college against the Principal. 3. By a communication dated 10.05.2014 the President of the Governing Body informed the Presiding Officer of the ICC that a clean chit was given to the Principal of the college by the CID Branch of the Assam Police, as regards the allegation of sending the obscene e-mail, and accordingly, a request was made that the ICC need not proceed any further in the matter. 4. In the meantime the Director of Higher Education Assam by an order dated 11.7.14, in consultation with the President of the Governing Body had constituted another ICC by claiming it to be the Committee constituted under Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (in short Sexual Harassment Act of 2013). The constitution of the ICC constituted by the Director was as follows:- “a. President (Presiding Officer) Mrs. Tapati Dhar Vice Principal/Associate Professor and Head of the Department of Political Science of Womens College, Silchar b. Member (1) Mrs. Arundhati Bhattacharjee, i. Lady member Associate professor & HOD, English, Womens College, Silcher ii. Social activist 2. Mr. Samar Roy Choudhury, President of GB, GC College, Silchar c. Member (non-government Organization or Association) Mr. Deepak Deb Advocate, Govt. Pleader, District-Bar Association, Silchar.” Prior to the said constitution, the Director of Higher Education by his communication of 06.06.2014 had required the President of the Governing Body to submit the proposal as well as the suggested panel of members for constitution of the ICC. 5. In the meantime, the ICC constituted by the Governing Body submitted its final report on 20.07.2014 with regard to the reference made to it against the allegation of sexual harassment by the respondent No. 5. 6. The above report of 20.07.2014 as well as the constitution of the ICC dated 11.7.14, of the Director were assailed by two of the members of the ICC constituted by the Governing Body resulting in WP(C) No. 331/2016. 6. The above report of 20.07.2014 as well as the constitution of the ICC dated 11.7.14, of the Director were assailed by two of the members of the ICC constituted by the Governing Body resulting in WP(C) No. 331/2016. The writ petition proceeded on the premises that the subsequent ICC was constituted by the Director in order to frustrate the proceeding that was pursued by the earlier ICC constituted by the Governing Body. According to the writ petitioners, the stand taken was further fortified by the fact that the constitution of the new ICC by the Director was circulated only after 28.07.2014 i.e., after the report was submitted by the earlier committee. The writ petitioners took the further stand that the constitution of the later ICC by the Director was contrary to the provisions of the Sexual Harassment Act of 2013. 7. The Director by filing affidavit took the stand that under the Assam College Employees (Provincialisation) Act, 2005 (in short Provincialisation Act of 2005) and the Assam College Employees (Provincialisation) Rules, 2010 (in short Provincialisation Rules of 2010), the Director of Higher Education is the Head of the Department and therefore, in terms of Section 4 of the Sexual Harassment Act of 2013, it is the Director alone who is the competent authority to constitute the ICC. According to the Director, the earlier ICC constituted by the Governing Body was not as per law and therefore, its constitution as well as the report submitted by it, are not to be taken into consideration. 8. The President of the Governing Body in his affidavit also took the stand that under the Provincialisation Act of 2005, and the Provincialisation Rules of 2010, the Governing Body is constituted by the Director of Higher Education and therefore, it is empowered to act as an employer within the meaning of the expression 'employer' Under Section 2(g) of the Harassment Act of 2013 and that the Director being in overall control of the college is to be deemed to be the employer, which is more so, inasmuch as, the Director is also the appointing authority of the teaching and nonteaching staff of the college. 9. 9. The respondent No. 5 in his affidavit took the stand that the ICC constituted by the Governing Body by the notification dated 04.04.2014 was not in accordance with the provisions of the Sexual Harassment Act of 2013 and as per the Provincialisation Act of 2005 and the Provincialisation Rules of 2010, it is the Director of Higher Education, and not the Governing Body, who is empowered to constitute the ICC. 10. The said writ petition was given a final consideration by the Judgment and Order dated 29.04.2016. One of the issues before the learned Single Judge was that in order to arrive at a conclusion as to who between the Governing Body of the College and the Director of Higher Education would be the employer of the employees of the Women College, Silchar, i.e., whether it would be the Governing Body of the College as provided under the Assam Provincialised Colleges and Assam Non-Government College Management Rules, 2001. (for short, Management Rules of 2001) or it would be the Director of Secondary Education as can be inferred from the Provincialisation Act of 2005 and the Provincialisation Rules of 2010. The learned Single Judge arrived at a conclusion that after the Provincialisation Rules of 2010 came into force, the same would hold the field and the Management Rules of 2001 would not be applicable in the facts of the present case to determine as to who would be the employer of the employees of the Women College, Silchar. Accordingly, it was held that under the Provincialisation Act of 2005 and the Provincialisation Rules of 2010 the employer in respect of the employees of a provincialised college would be the Director of Secondary Education, and therefore, the ICC constituted by the Director of Secondary Education Assam on 11.07.2014 would prevail over the earlier ICC constituted by the Governing Body. It was also held by the learned Single Judge that the ICC constituted by the Governing Body is not a validly constituted ICC and consequently the report prepared by the ICC constituted by the Governing Body cannot have any sanctity. 11. It was also held by the learned Single Judge that the ICC constituted by the Governing Body is not a validly constituted ICC and consequently the report prepared by the ICC constituted by the Governing Body cannot have any sanctity. 11. In the appeal preferred by the writ petitioners, the Judgment and Order of the learned Single Judge has been assailed on the ground that it is the Management Rules of 2001, which, in fact, governs the field as regards the question as to who would be the employer of an employee of a provincialised college and though the Provincialisation Act of 2005 and the Provincialisation Rules of 2010 may provide for the provincialisation of the employees, but that by itself do not provide as to who would be their employer. A further ground taken in the appeal is that the expression 'employer' would have to be understood in relation to the definition of employer as found in Section 2(g) of the Sexual Harassment Act of 2013 and not from the concept of an employer as can be found in common parlance. 12. Mr. K.N. Choudhury, learned senior counsel for the appellant by referring to the definition of employer' under Section 2(g) of the Sexual Harassment Act of 2013 submits that the employer of the employees of the Women College, Silchar would be covered by Section 2(g)(ii) inasmuch as the college not being an institution of the appropriate Government or a local authority, would not be covered under Section 2(g)(i). Accordingly, as the employer under Section 2(g)(ii) would be any person responsible, for the management, supervision and the control the workplace, therefore, in order to arrive as to who would be the employer in the Women College, Silchar, an examination would be required as to who is responsible for the management, supervision and control of the college. As 'workplace' is defined under Sexual Harassment Act of 2013 under Section 2(o), which includes, any institution wholly or substantially financed by funds provided directly or indirectly by the appropriate Government and the expression appropriate Government having been appropriately defined, the Women College, Silchar being, at least, substantially financed by the Government of Assam would satisfy the requirements of being a workplace. Therefore, to arrive at as to who would be the employer an examination would be required as to which person or authority is responsible for the management, supervision and control of the workplace. 13. Per contra it is the submission of Mr. P.K. Tiwari, learned senior counsel for the respondent No. 5 that there is a direct nexus between the definition of the expression employer as found in Section 2(g) (i) and the definition of workplace in Section 2(o)(i) of the Sexual Harassment Act of 2013 and as the College in question is substantially financed by the funds provided directly and indirectly by the Government of Assam, therefore the head of the institution would be the employer. It is submitted that the Provincialisation Act of 2005 and the Provincialisation Rules of 2010 having provided that the appointments in the provincialised colleges would be made by the Director of Higher Education and further it having been provided that upon provincialisation the employees of the college would be deemed to be employees of the Government, as a result of which their salary etc. would be paid by the Government, in would be the Director of Higher Education who would be the head of the institution and consequently would be the employer as provided under Section 2(g)(i). 14. In the aforesaid premises, in order to arrive at a conclusion as to who would be the employer of the Women College, Silchar as provided under Section 2(g) of the Sexual Harassment Act of 2013 it would be apposite to examine the relevant provisions of the Act as well as the Rules which governs the provincialised the colleges. 15. Admittedly, prior to being provincialised, the affairs such colleges were governed by the Assam Non-Government College Management Rules, 2001. The said Rules of 2001 was notified by the No. B(2) H. 294/2001/4, dated 15th June, 2001, by providing that the Rules were framed for regulating the management of the non-government colleges in Assam. Rule 3 inter alia provided that every non-government college affiliated to any Central or State University shall be governed by a Governing Body whose composition was provided therein. 16. Accordingly, under the Assam Non-Government College Management Rules, 2001, the person responsible for the management, supervision and control of the college would be the Governing Body constituted under Rule 3. 17. Rule 3 inter alia provided that every non-government college affiliated to any Central or State University shall be governed by a Governing Body whose composition was provided therein. 16. Accordingly, under the Assam Non-Government College Management Rules, 2001, the person responsible for the management, supervision and control of the college would be the Governing Body constituted under Rule 3. 17. By the Provincialisation Act of 2005, the services of the employees of the non-government colleges in receipt of the deficit grants-in-aid were provincialised where Section 3 thereof provided that subject to the provisions of Articles 30 and 309 of the Constitution of India, all employees of the nongovernment colleges, save and except as provided therein, shall be deemed to have become employees of the Government Section 6 further provides that upon the services of the employees being so provincialised all appointments of both teaching and non-teaching post in the colleges shall be made by the Director of Higher Education on the basis of the selection and recommendation of Governing Body in accordance with the rules and procedure of the Government in force. 18. The Provincialisation Rules of 2010, framed for the purpose of carrying out the Provincialisation Act of 2005, under Rule 5 provides for the method of recruitment of the various employees of the colleges so provincialised. The Rules further provide for the various conditions of services in respect of the employees of the provincialised of the college. 19. From a conjoint reading of the Provincialisation Act of 2005 and the Provincialisation Rule of 2010, what is noticeable is that upon the services of the employees being provincialised, from the appointed date they become the employees of the State Government and their salary and allowances are paid by the State Government and henceforth all appointments of the teaching and non-teaching staff are to be done by the Director of Higher Education, who in other words would be the appointing authority. 20. What is further noticeable is that neither the Provincialisation Act of 2005, nor the Provincialisation Rules of 2010 provides for as to how the affairs of such colleges upon being provincialised would be managed. 20. What is further noticeable is that neither the Provincialisation Act of 2005, nor the Provincialisation Rules of 2010 provides for as to how the affairs of such colleges upon being provincialised would be managed. In the absence of any such provision under the Provincialisation Act of 2005 and the Provincialisation Rules of 2010, as to how the provincialised colleges are to be managed, neither the said Act nor the Rules can be said to form the basis to arrive at any conclusion as regards how and who would continue to manage the affairs of the college after the provincialisation. 21. It is noticed that in order to mitigate the situation, an amendment was brought in by the Notification No. AHE.331/2008/26, dated the 18th June, 2009, to the Assam Non-Government College Management Rules, 2001. By the said amendment of 2009, the Assam Non-Government College Management Rules, 2001 became the Assam Provincialised Colleges and the Assam Non-Government College Management Rules, 2001. Further under Rules 2(a) of the amended Rules the definition of college now means a provincialised college and also a non-government college. Considering the said definition of college under the amended Rules, Rule 3 thereof would now have to be read to mean that every provincialised college, as well as non-government college, affiliated to any Central or State University shall be governed by the Governing Body. It is also to be taken note that under Rule 21 (iii) of the Management Rules of 2001, the Governing Body is authorized to deal with the discipline and conduct of the teaching and non-teaching staff of the provincialised colleges. 22. As noticed, upon the amendment brought in 2009, even the provincialised college, provincialised as per the Provincialisation Act of 2005, are also to be governed and managed by the Governing Body to be constituted as per the amended Management Rules of 2001. 23. 22. As noticed, upon the amendment brought in 2009, even the provincialised college, provincialised as per the Provincialisation Act of 2005, are also to be governed and managed by the Governing Body to be constituted as per the amended Management Rules of 2001. 23. In view of the conclusion already arrived that neither the Provincialisation Act of 2005 nor the Provincialisation Rules of 2010 provides for any provision as to how a provincialised college would be managed or governed and with further reference to the conclusion that a provincialised college would also be governed by the Governing Body to be constituted under the Management Rules of 2001, the conclusion arrived at by the learned Single Judge that after framing of the Provincialisation Rules of 2010 the Management Rules of 2001 ceases to have its applicability in respect of the provincialised colleges is found to be contrary to the combined provisions of the Management Rules of 2001 and the Provincialisation Act of 2005 and the Provincialisation Rules of 2010. Accordingly the said conclusion of the learned Single Judge would be unsustainable.. 24. In view of the aforesaid conclusion that even after provincialisation, the colleges so provincialised would continued to be governed and managed by the Governing Body constituted under the Management Rules of 2001, the aspect as to who would be an employer under Section 2(g) of the Sexual Harassment Act of 2013, when looked into, would give an indication that the employer in respect of the employees of the provincialised college would be the Governing Body of the college, as provided under Section 2(g)(ii) of the said Act. 25. In the aforesaid context, when the submission of Mr. P.K. Tiwari, learned senior counsel for the respondent No. 5 is looked into, it is noted that Mr. Tiwari tries to draw an equivalence between the concept of an employer as defined in Section 2(g)(i) and that of a workplace as defined in Section 2(o)(i), of the Sexual Harassment Act of 2013. 26. P.K. Tiwari, learned senior counsel for the respondent No. 5 is looked into, it is noted that Mr. Tiwari tries to draw an equivalence between the concept of an employer as defined in Section 2(g)(i) and that of a workplace as defined in Section 2(o)(i), of the Sexual Harassment Act of 2013. 26. As provided in Section 2(g)(i) of the Sexual Harassment Act of 2013 employer' means: "in relation to any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organization, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in his behalf." On the other hand, as provided in Section 2(o)(i) of Sexual Harassment Act of 2013 workplace' includes: "any department, organization, undertaking establishment, enterprise, institution, office, branch or unit which is established, owned controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society" 27. Accordingly, as per Section 2(g)(i) an employer also includes the head of an institution of the appropriate government, whereas, under Section 2(o)(i), a workplace includes an institution wholly or substantially financed by funds provided directly and indirectly by the appropriate government. Mr. Tiwari by contending that the definition of employer under Section 2(g)(i) corresponds to the definition of workplace under Section 2(o)(i) submits that even the head of an institution which is wholly or substantially financed by funds provided directly and indirectly by the appropriate government would also be an employer. 28. The said submission of Mr. P.K. Tiwari would be fallacious inasmuch as, there is a clear distinction between the institution referred in Section 2(g)(i) and that of which is referred in Section 2(o)(i). In Section 2(g)(i), the institution of the appropriate government is being referred whereas in Section 2(o) (i) the institution wholly or substantially financed by the funds provided by the appropriate government is referred. An institution may be financed by the funds wholly or substantially provided by the appropriate government, but the same by itself would not lead to a conclusion that such institution is also of the government. An institution may be financed by the funds wholly or substantially provided by the appropriate government, but the same by itself would not lead to a conclusion that such institution is also of the government. Therefore, there being a clear distinction in the statutory provisions of Section 2(g)(i) and 2(o)(i), it cannot be inferred that the institution of the government referred in Section 2(g)(i) and the institution wholly or substantially financed from the funds provided by the government would be one and the same. 29. In such view of the matter, the submission of Mr. P.K. Tiwari, learned senior counsel for the respondent No. 5 that the employer of the employees of the Women College, Silchar would also be as defined the Section 2(g)(i) of the Sexual Harassment Act of 2013 is found to be unacceptable. 30. In view of the conclusion as already arrived that the provincialised colleges are also governed and managed by the Governing Body of the college, the employer of the employees of such provincialised colleges would also have the same meaning as defined under Section 2(g)(ii) of the Sexual Harassment Act of 2013. 31. In the instant case, therefore, the Women College, Silchar being a provincialised college under the Provincialisation Act of 2005, the employer of its employees under the Sexual Harassment Act of 2013 would be the Governing Body of the college and not the Director of Secondary Education as sought to be presented by the respondent authorities and also as held by the learned Single Judge in the judgment and order dated 29.04.2016. It is clarified that the said meaning of the employer of the provincialised colleges would be only with reference to the Sexual Harassment Act of 2013. 32. In view of such conclusion that the employer of the employees of the respondent Women College, Silchar is its Governing Body, the ICC constituted by the Director of Secondary Education on 11.07.2014 would be held to be without any authority and jurisdiction and on the other hand, it would be the Governing Body of the college who would be the appropriate authority to constitute the ICC under Section 4 of the Sexual Harassment Act of 2013. 33. 33. At the same time, it is also noticed that the ICC constituted by the Governing Body by the communication dated 04.04.2014 also do not conform to the requirement of Section 4 of the Sexual Harassment Act of 2013. When the constitution of the ICC by the Governing Body is looked into, it can be seen that it comprises of Dr. (Mrs.) Aparajita Chowdhury Ex-Director, College Development Council Assam University, Silchar, Ex-Principal, G.C. College, Silchar, R.S. Girls College, Karimganj and Women's College, Silchar. Apparently Dr. Aparajita Chowdhury, who was appointed as the Presiding Officer of the ICC was not an employee of the college as on 03.04.2014 when the ICC was constituted. 34. In the said background, when the provision of Section 4 is looked into, it is noticed that Section 4(2)(a) provides that the ICC shall consist of a Presiding Officer who shall be a woman employed at a senior level at the workplace from amongst the employees, meaning thereby, that in the instant case, the Presiding Officer ought to have been an woman employed at the senior level in the Women College, Silchar. 35. As a consequence, the conclusion of the learned Single Judge to the extent that the constitution of the ICC by the Governing Body by the communication dated 4.4.2014 is not in consonance with the requirement of the Section 4(2)(a) of the Sexual Harassment Act of 2013 is found to acceptable. Accordingly, the further conclusion of the learned Single Judge that the said ICC constituted by the Governing Body is not a validly constituted ICC and that the report of the said ICC does not have any valid sanctity also does not require any interference. 36. As the ICC constituted by the Director of Secondary Education by the as per the communication dated 11.07.2014, as well as the ICC constituted by the Governing Body of Women College, Silchar are both found to be unsustainable, therefore it would be a requirement under the Sexual Harassment Act of 2013 for the Governing Body of the Women's College Silchar to constitute another ICC strictly in terms of the provisions of Section 4 of the Sexual Harassment Act of 2013 to look into the complaint lodged by the women employees of the college against the respondent No. 5. 37. 37. It is also been brought to the notice of the Court that one of the members of the ICC constituted by the Governing Body by the communication of 04.04.2014, is presently the President of the Governing Body of the college. In view of the said factual situation, this Court is of the view that for the purpose of constituting the ICC as required by this order, the said President of the Governing Body, who was also a member of the earlier ICC, shall not preside over the meeting of the Governing Body in which the required ICC would be constituted. Such a method adopted would also be in consonance with Rule 15 of the Management Rules of 2001, which inter alia provides that the meeting of the Governing Body shall be presided by the President and in the absence of the President, the other members present may select or elect one of them to preside over the meeting. As the complaint lodged by the women employees was of the year 2014 itself, it would be in the interest of justice that the Governing Body forthwith constitutes the ICC and thereupon the ICC so constituted proceed with the enquiry and submit its report with a period of not later than 3 months thereof. Depending upon the report of the ICC the matter be proceeded further and brought to its logical end as provided under the Sexual Harassment Act of 2013. In terms of the above, the writ appeal stands disposed of. Interim order passed earlier stands vacated.