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2021 DIGILAW 699 (GAU)

Rakesh Medhi v. State of Assam

2021-11-17

SANJAY KUMAR MEDHI

body2021
ORDER : 1. The extra-ordinary jurisdiction of this Court conferred by Article 226 of the Constitution of India is sought to be invoked by filing this writ petition whereby the petitioner has put to challenge the arbitrary action taken against him on the basis of certain allegations which had culminated in an order dated 03.09.2021 by which the petitioner has been suspended for six months and also directed to move out from the hostel within two days. 2. The petition has been structured on the premises that the action against the petitioner is based upon the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the 2013 Act). It is the specific case of the petitioner that the provisions of the 2013 Act, which lays down the safeguards, have been blatantly violated rendering the impugned action non est in law. 3. To appreciate the issue involved, it would be convenient to narrate the facts of the case in brief. 4. The writ petitioner is a Post-Graduate Trainee-MS (General Surgery) at the Tezpur Medical College and Hospital (hereinafter referred to as the TMCH). It is the case of the petitioner that upon clearing the NEET examination in the year 2020, he was inducted as a trainee in the TMCH. The petitioner contends that some vested interested persons had started a malicious campaign against him by posting offensive materials in Twitter wherein the character of the petitioner was maligned. The Twitter messages have also been forwarded to important dignitaries and the police wherein specific allegation of harassing female interns by the petitioner has been made. 5. After publication of the said allegations in the public domain, the authorities of the TMCH had constituted a Three Member Committee (hereinafter Committee) to enquire into the issue which was in the social media. In the said office order dated 01.09.2021 issued by the Principal-cum-Chief Superintendent of TMCH, the Committee was requested to submit its report within 24 hours. It is the case of the petitioner that he was never aware about constitution of such Committee until he was furnished with the impugned order 03.09.2021 by which, based on the report of the enquiry, the petitioner was suspended for a period of six months and was also directed to vacate the hostel within two days from the date of the order. It is the legality and validity of the aforesaid decision which is the subject matter of challenge in the present writ petition. 6. I have heard Shri R. Chakravarty, learned counsel for the petitioner. Also heard Shri B. Gogoi, learned Standing Counsel, Health and Family Welfare Department, Assam, who represents the respondent nos. 1, 2, 4, 5, 6 and 7. Though the other respondents have been served, they have chosen not to contest the writ petition. 7. Drawing the attention of this Court to the 2013 Act, Shri Chakravarty, learned counsel for the petitioner submits that the allegation being one as contemplated in the said Act, the mandate thereof is required to be mandatorily followed. Assailing the very initiation of the proceeding by constitution of the Committee, the learned counsel for the petitioner has submitted that the Committee is not constituted in accordance with the requirement of Section 4 of the 2013 Act. The provision in question lays down the procedure of making the enquiry into the complaint which requires summoning of witness, production of documents, cross-examination. However, in the instant case, the authorities have given a complete goby to the prescribed procedure and have jumped to the conclusion of imposing penalty to the petitioner. Shri Chakravarty, learned counsel further submits that the penalty in question i.e., suspension for six months is also grossly disproportionate as there is no serious allegation against the petitioner and the allegations are trivial in nature. It is further submitted that because of the impugned order, immense prejudice is being suffered by the petitioner and the stigma would remain forever in his service career. 8. Per contra, Shri B. Gogoi, learned Standing Counsel, Health and Family Welfare Department submits that the entire premises on which the writ petition has been structured is erroneous. The learned Standing Counsel submits that to attract the provisions of the 2013 Act, the petitioner has to fall within the definition of employee as defined in Section 2(f). It is submitted that the Act will be applicable to an ‘employee’ which means a person employed at a workplace for any work and in the instant case, there is no employment of the petitioner as such. It is submitted that the Act will be applicable to an ‘employee’ which means a person employed at a workplace for any work and in the instant case, there is no employment of the petitioner as such. Shri Gogoi, learned Standing Counsel explains that though the word ‘trainee’ also appears in the definition, the same should be read together which is an inclusive one and which is connected to the first part by the expression ‘and’ which requires that the fact of employment has to be pre-condition. 9. The learned Standing Counsel by drawing the attention of this Court to Regulation 9 of the Post-Graduate Medical Education Regulations, 2000 (Regulations) submits that it is only a candidate who is selected for admission and not for any employment. The Regulations also contain the period of training under Regulation 10, departmental training facilities under Regulation 11, number of post-graduate students to be admitted under Regulation 12 and the training programme which is under Regulation 13. It is submitted that the above provisions of the Regulations make it amply clear that there cannot be any concept of any employment when an incumbent joins the Institute as a trainee. Shri Gogoi has also drawn the attention of this Court to Clause 13(3) thereof which provides for payment of stipend to the postgraduate students undergoing post-graduate degree/diploma and also Clause 14 of the said Regulation which is in connection with examination. It is contended that such provisions are not applicable to an employee and therefore, the contention made by the learned counsel for the petitioner that the petitioner should be treated to be an employee under the 2013 Act is absolutely without any basis. The learned Standing Counsel has also drawn the attention of this Court to the affidavit-in-opposition dated 27.10.2021 filed by the respondent no. 2 wherein written statement (in his own hand writing) of the petitioner which was given to the Committee has also been annexed. 10. Shri Gogoi, learned Standing Counsel submits that upon reading of the said statement, it would reveal that the petitioner has not categorically denied the allegation and has only put a casual denial and on certain occasions have also justified the action as to be without motive or ill intention. 10. Shri Gogoi, learned Standing Counsel submits that upon reading of the said statement, it would reveal that the petitioner has not categorically denied the allegation and has only put a casual denial and on certain occasions have also justified the action as to be without motive or ill intention. Since the allegations are also in connection with a number of female interns, instead of annexing the statement of the victims in the affidavit-in-opposition, copies of the same have been placed before this Court which is in the interest of justice. 11. Upon perusal of the same, it reveals that the nature of allegations by different victims is almost the same wherein they have been put to inconvenience by the petitioner by means of asking embarrassing question and by his conduct. 12. Shri Chakravarty, learned counsel has tried to refute the aforesaid contention of the learned Standing Counsel by stating that the allegations made against him are not so serious and are in an exaggerated stage, but what intrigues this Court is that the petitioner in his own statement has made a casual denial and in fact, the explanation would show that certain allegations are admitted with some justification. 13. At this stage, the learned counsel for the petitioner has strenuously argued that the copies of the statement were never given to him and therefore, he was kept in dark. Though on the first blush, the submissions appear to have some force, on a comparative reading of the statement of the petitioner, it appears that by accepting the submission, no change in the outcome would be there and as coined by the Hon’ble Supreme Court in the case of Aligarh Muslim University vs. Mansoor Ali Khan, (2000) 7 SCC 529 , the same would be an useless formality. The relevant portion is extracted hereunder: “21. As pointed recently in M.C. Mehta v. Union of India1 there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao vs. Govt. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao vs. Govt. of A.P. it is not necessary to quash the order merely because of violation of principles of natural justice. 22. In M.C. Mehta it was pointed out that at one time, it was held in Ridge vs. Baldwin that breach of principles of natural justice was in itself treated as prejudice and that no other “de facto” prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor vs. Jagmohan, Chinnappa Reddy, J. followed Ridge vs. Baldwin and set aside the order of super-session of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer. 23. Chinnappa Reddy, J. in S.L. Kapoor case4 laid down two exceptions (at SCC p. 395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception. 24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi vs. State Bank of India, Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade’s Administrative Law (5th Edn. pp. In K.L. Tripathi vs. State Bank of India, Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade’s Administrative Law (5th Edn. pp. 472-475), as follows: (SCC p. 58, Para 31) “It is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent......There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.” Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala vs. S.K. Sharma. In that case, the principle of “prejudice” has been further elaborated. The same principle has been reiterated again in Rajendra Singh vs. State of M.P. 25. The “useless formality” theory, it must be noted, is an exception. Apart from the class of cases of “admitted or indisputable facts leading only to one conclusion” referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.” 14. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.” 14. In the opinion of this Court, the petitioner has not been able to show any prejudice caused to him by not serving the statements of the victims, more so because of the fact that the petitioner in his own statement has made very causal denial and as indicated above, has accepted few of the allegations with some justification. 15. That apart, the principal premises on which the writ petition was structured that is the applicability of the 2013 Act is concerned, this Court is unable to accept the submission of the learned counsel for the petitioner that the action contemplated would come within the purview of the said Act. On the other hand, this Court finds force in the submission of the learned Standing Counsel, Health Department that the petitioner does not fall within the definition of ‘employee’ as defined under Section 2 (f) of the 2013 Act. 16. As regards the argument made on behalf of the petitioner regarding the proportionality and the stigma attached for the action of suspension of the petitioner for six months, in the opinion this Court, the same is not a severe punishment in view of the fact that the authorities have the power to rusticate the petitioner from the Institution, which is however not done. 17. In the above facts and circumstances of the case, this Court is of the opinion that the action taken against the petitioner in view of the materials to substantiate the allegations is just and proper and does not require any interference. 18. Accordingly, this Court finds no merit in the writ petition which is accordingly dismissed. 19. No order as to cost.