The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 1464 of 2022 Dr. Swapan Kumar Karak …. Appellant -versus- National Institute of Technology (NIT), Rourkela and others …. Respondents Advocates appeared in the case: For Appellant
Legal Reasoning
: Mr. Prafulla Kumar Rath, Sr. Advocate assisted by Mr. S.B. Rath, Advocate For Respondents : Mr. Nirod Kumar Sahu, Advocate (NIT) Mr. R.N. Mishra, Addl. Government Advocate for State CORAM: THE CHIEF JUSTICE MR. JUSTICE MURAHARI SRI RAMAN JUDGMENT 14.03.2024 Chakradhari Sharan Singh, CJ 1. The Appellant is working as an Assistant Professor in the National Institute of Technology (NIT), Rourkela. A girl student of the NIT made allegation of sexual harassment against the present appellant which led to an inquiry conducted by the Internal Complaints Committee (ICC). The ICC submitted its findings on 18.03.2019. Page 1 of 5 2. Based on the findings of the ICC, the Disciplinary Authority (DA) imposed the punishment of dismissal from service. The order imposing punishment of dismissal from the service came to be challenged by the appellant by filing writ petition registered as W.P.(C) No.5175 of 2020. The appellant had also preferred a writ petition giving rise to W.P.(C) No.2244 of 2020 questioning the
Decision
findings of the report of the ICC. Both the writ petitions were taken up together and came to be disposed of by a common judgment dated 26.09.2022. By the said order, the learned Single Judge quashed the order of dismissal dated 20.01.2020 with a direction to the NIT to reinstate the appellant in service. As regards the finding of the ICC, the learned Single Judge has observed as under:- It shall be open to the Petitioner to prefer “11(iv). appeal against the findings of ICC in accordance with law within a period of two weeks. In the event such appeal is preferred within the period aforesaid, the appellate authority shall consider condonation of delay in filing thereof in view of the pendency of the Writ Petition before this Court and in case, delay is condoned the appellate authority shall dispose of the appeal within a period of three weeks giving full opportunity of hearing to the Petitioner.” 3. Aggrieved by the said part of the order whereby the appellant has been asked to approach the appellate authority, the present writ appeal has been filed. 4. Mr. Prafulla Kumar Rath, learned Senior Counsel assisted by Mr. S.B. Rath, learned counsel appearing on behalf of the appellant has argued that the recommendation made by the ICC cannot be treated to be the recommendation made under sub-Section (2) of Section 13 or under clause (i) or clause (ii) of sub-Section (3) of Page 2 of 5 Section 13 or sub-Section (1) or sub-Section (2) of Section 14 or Section 17 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (in short ‘the 2013 Act’) and, therefore, the appeal will not lie under the provision of the 2013 Act. 5. After having heard learned counsel appearing on behalf of the parties, we are of the view that the said observation made by the learned Single Judge does not require any interference. 6. It is seen that certain disputes arose as to who will be the appellate authority in terms of Section 18 of the 2013 Act. Section 18 reads thus:- from the “18. Appeal-(1) Any person aggrieved recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or sub-section (1) or sub-section (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the Court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed. (2) The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.” 7. It is manifest from the language of Section 18 that the appellate authority for the purposes of Section 18 shall be as per the service rules applicable to the said person who is aggrieved by the recommendation of the ICC. Page 3 of 5 8. Our attention has been drawn to sub-rule (9) of Rule 26 of the First Statutes of the National Institute of Technology which reads as under:- “9. A member of the staff aggrieved by any order imposing penalty passed by the Director against him shall be entitled to prefer an appeal to Board of Governors against the order and there shall be no further appeal from the decision of the Board.” 9. It is evident that under sub-rule (9), any member of the NIT, aggrieved by an order imposing penalty passed by the Director, is entitled to prefer an appeal before the Board of Governors. 10. In our view thus, the Board of Governors is the appellate authority under the rules governing service conditions of the appellant. Accordingly, he shall be treated to be the appellate authority for the purpose of preferring an appeal under Section 18(1) of the 2013 Act. 11. Our attention has also been drawn to certain office memorandum issued by the Government of India referring to Central Civil Services (Classification, Control and Appeal) Rules, 1965. In our view, the said office memorandum shall have no application in case of the employees of the NIT who are governed by separate statutes for the purpose of exercise of power under Section 18(1) of the 2013 Act as the service rules of the NIT staff specifically provide for appellate authority. 12. It goes without saying that the appellant shall have liberty to raise all the points before the appellate authority which had been raised in W.P.(C) No.2244 of 2020. Page 4 of 5 13. This appeal stands disposed of accordingly. 14. It is made clear that if the appeal is preferred within a period of 30 days from today, the appellate authority shall keep in mind the fact that the appellant was pursuing his remedy before this Court by filing the writ petition and the present writ appeal while considering the prayer for condonation of delay and decide it on merits. 15. Till filing of the appeal, the effect of the interim order passed by this Court on 06.03.2023 shall operate. Chief Justice (Chakradhari Sharan Singh) Judge (M.S. Raman) S. Behera Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Mar-2024 11:26:00 Page 5 of 5