High Court · 2025

Judgment

1. This judgment will decide Writ-A No.4492 of 2023 and connected Writ-A No.2273 of 2023. Writ-A No.4492 of 2023 shall be treated as the leading case. Nevertheless, facts and materials, wherever necessary, shall also be noticed in the connected writ petition.

2. Anandh Subramaniam, a Professor in the Department of Material Science and Engineering at the Indian Institute of Technology, Kanpur is a respectable man, who has fallen from grace. He has been proceeded with against under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short, 'the PoSH Act'), held guilty on charges of sexual harassment of a scholar of his and punished with 'compulsory retirement' by the Board of Governors of the Indian Institute of Technology, Kanpur (for short, 'the IIT') vide resolution dated 22.02.2023. The said resolution was notified by the Director of the IIT vide order dated 01.03.2023. 2

3. In the leading writ petition, the petitioner challenges the order dated 01.03.2023 passed by the Director of the IIT as also the resolution of the Board of Governors of the said Institution dated 22.02.2023. He has further prayed, in substance, through two reliefs, myriadly worded, that the decision to retire him compulsorily from service be not given effect to in any manner whatsoever. The connected writ petition was instituted by the petitioner at a time when proceedings under the PoSH Act had not reached a terminus. The said petition, therefore, impugns determinations interlocutory, but still decisive like the inquiry report dated 30.09.2022 submitted by the Internal Complaints Committee (for short, 'ICC') of the IIT, the memorandum dated 01.11.2022 issued by the Director of the IIT, calling upon the petitioner to submit his representation against the inquiry report and the memorandum dated

22.12.2022, also issued by the Board of Governors of the IIT, requiring the petitioner to show cause against the proposed punishment of compulsory retirement from service. There is a more profound challenge by the petitioner in this petition and that is to the validity of the Indian Institute of Technology Kanpur (Inquiry into Complaints of Sexual Harassment of Women at Workplace) Rules, 2021 (for short, 'the IITK Rules'), questioning the said Rules as ultra vires the PoSH Act. It is this challenge to the validity of the IITK Rules that has kept the connected writ petition vibrant and alive, even if one were to regard the other interlocutory orders/ determinations merged in the final resolution/ orders of compulsory retirement passed against the petitioner.

4. The complainant in this case against the petitioner is a Ph.D. scholar of the IIT, whose research the petitioner was guiding. Proceedings under the PoSH Act commenced on a 3 complaint laid against the petitioner by the Ph.D. scholar under reference, who has been impleaded as respondent No.7 to the writ petition, anonymously described as 'complainant to be served through the Director, Indian Institute of Technology, Kanpur'. This complaint, which is one dated 24.06.2022, was submitted by the complainant to the Presiding Officer, ICC, constituted for the IIT under the PoSH Act. The petitioner, as he says, received an email dated 30.06.2022 from the Presiding Officer of the ICC, comprising a copy of the complaint dated

24.06.2022 and a notice dated 30.06.2022, requiring him to appear before the ICC on 15.07.2022.

5. It is the petitioner's case that the notice did not indicate the rule or statute, in terms of which it was issued, and this led the petitioner to address a letter dated 06.07.2022 to the Presiding Officer of the ICC. In response, the Presiding Officer of the ICC issued summons to the petitioner dated 12.07.2022, inter alia, indicating the authority of the ICC to act in the matter against him. It was indicated in the summons that the notice dated 30.06.2022 had been issued under Rule 18 of the IITK Rules. It was further said in the summons that the petitioner was called upon to appear before the ICC at 16:00 hours on

15.07.2022 at a venue described as 'FB212' in person along with his reply, if any, to the complaint. The petitioner appeared before the ICC on 15.07.2022 and put in a reply of two short paragraphs: in the first, he acknowledged the summons, and in the second, he denied the allegations in the complaint. He said that the complaint was false and motivated.

6. The ICC commenced an inquiry into the complaint on

15.07.2022. The petitioner says that during the hearing held on

15.07.2022, he requested the ICC, by a letter of that day, to permit him to appoint a legally trained person to defend him, as 4 one of the members on the ICC was an Advocate. It is the petitioner's case that during the hearing, he was informed that he is not allowed to consult on any matter relating to the complaint. It is also said that the complainant was asked to sit in a different room and questions could be asked of her in writing. According to the petitioner, upon conclusion of the hearing on 15.07.2022, the ICC declined to provide a copy of the daily order-sheet on the pretext that it was a confidential document. Immediately after the conclusion of the hearing as aforesaid, the petitioner sent a letter to the ICC, bringing on record the illegalities in the proceedings. He says that on the same day, to wit, 15.07.2022, the petitioner received a reply from the Director of the IIT, informing him that the inquiry will be done in accordance with the IITK Rules, inasmuch as the IIT was not governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short, 'the CCS Rules'). This reply of the Director came in response to the petitioner's letter dated 15.07.2022, already mentioned, where a clarification was sought by him in the following terms: “4) It is requested to clarify urgently whether,- (a) A punishment will straight away be imposed under the newly notified IITK ICSH Rules on an employee against whom the inquiry is held by ICC under the newly notified Indian Institute of Technology Kanpur (Inquiry into Complaints of Sexual Harassment of Women at Workplace) Rules, 2021 OR (b) After the inquiry by the ICC, the report of ICC will be placed before the Disciplinary Authority for considering and deciding under rule 14(2) of CCS (CCA) Rules, 1965 whether there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against the employee and, if the Disciplinary Authority decides that an inquiry is required, to hold the inquiry into the imputations of misconduct or misbehaviour in accordance with the procedure laid down in Rule 14 of CCS (CCA) Rules, 1965.”

7. The petitioner asserts that the statutes of the IIT are silent as regards the manner in which a domestic inquiry is to be conducted against an employee or teacher, and, therefore, it is 5 Rule 14 of the CCS Rules that would apply. It is also his case that in cases of misconduct against employees of the IIT, domestic inquiries have always been conducted in accordance with the CCS Rules, and this course of action has been upheld by Courts. The petitioner particularly pleads that in view of the proviso to sub-Rule (2) of Rule 14 of the CCS Rules, the procedure for holding an inquiry into complaints of sexual harassment is provided. Therefore, there was absolutely no occasion or need for the IIT to frame the IITK Rules to conduct an inquiry under the PoSH Act. If the IIT still wished to frame their own rules for holding inquiries into complaints of sexual harassment, it was incumbent to frame rules that provided for the manner in which an inquiry would be held, instead of merely providing what Rule 30 says in vague terms, to wit, 'the inquiry into the complaint shall be made by the Committee in accordance with the principles of natural justice'.

8. On 16.07.2022, the petitioner received an email from the Presiding Officer of the ICC, enclosing a list of witnesses provided by the complainant at the time of filing the complaint. It was said that this list could not be attached to the complaint at the time when a copy thereof was sent to the petitioner on

30.06.2022 due to oversight. The petitioner was asked to submit his detailed reply in six copies along with a list of witnesses and documentary evidence that he may seek to rely upon, on the next scheduled date of hearing set down for the 18th of July at 4:00 p.m. The petitioner addressed a letter dated

18.07.2022 to the Director of the IIT, saying that the complaint against him be placed before the Disciplinary Authority in the

first instance in order to enable that Authority to form an opinion on the complaint and to order an inquiry, if warranted, in the manner envisaged under Rule 14 of the CCS Rules. The 6 petitioner said in his letter that if an inquiry was found fit to be held by the Disciplinary Authority, a proper charge-sheet in the prescribed format had to be issued to the petitioner to enable him to defend properly. This request of the petitioner was also rejected by the Director promptly on the same day, to wit, the 18th of July, 2022.

9. Regular hearing before the ICC commenced on

27.07.2022, where the petitioner alleges breach of such fundamental procedures, which, according to him, violated natural justice and resulted in grave prejudice to his case. According to the petitioner, he was asked to cross-examine the complainant, who had appeared as her own witness as CW-1, without recording her examination-in-chief. The ICC disallowed a large number of questions that the petitioner asked of the complainant as part of the cross-examination. He says that the ICC itself answered for the complainant, completing and improving upon her answers to several questions. The ICC did not ensure that the complainant answered some of the questions that had been allowed to be put to her. The ICC also readily accepted additional documents and a list of new witnesses given by the complainant on 27.07.2022, that were never cited along with the complaint, without asking her the reason for not submitting these documents or citing witnesses before commencement of the inquiry. There is also this case by the petitioner that the ICC carried out a raid on the lab, where the petitioner worked and did an illegal search and seizure on three dates, to wit, 08.08.2022, 10.08.2022 and 05.09.2022 in order to help the complainant produce a document. Proceedings were held ex parte, denying opportunity to the petitioner, when he could not attend due to compelling circumstances. 7

10. It is also said that the petitioner was denied the opportunity to examine one of the complainant's witnesses, namely, CW-3. The ICC is blamed by the petitioner of asking the complainant's witnesses before, during and after their cross-examination numerous questions, purporting to seek clarifications, but in fact, reconciling discrepancies in their depositions and bringing up additional materials and allegations against the petitioner, as he chooses to describe it. It is also pleaded by the petitioner that on 01.08.2022, after the testimony of CW-1 was over, the ICC directed the petitioner to submit his deposition for cross-examination on 04.08.2022. He says that this was the most anomalous procedure to adopt, because the stage for the petitioner's deposition had not yet reached, the complainant's case having just begun. It is also said that after the commencement of regular hearing on

28.07.2022, copies of the daily order-sheet and depositions of witnesses were not supplied to the petitioner. After repeat requests, the ICC supplied a copy each of the daily order-sheet dated 05.08.2022 and the deposition recorded on that date, but copies of order-sheets of previous days and depositions recorded were not supplied. Those were supplied on

16.08.2022, after an undue and unconscionable delay of three weeks, as the petitioner chooses to call it. Again, on one of the dates of the scheduled hearing, that is to say, 23.08.2022, the petitioner was suddenly taken ill. He informed the ICC about his illness and requested adjournment by an email sent at 8.35 a.m. on 23.08.2022. The request for adjournment was rejected and evidence heard ex parte on 23.08.2022. The ICC went on further to commence hearing the defence evidence in the petitioner's absence on 23.08.2022 and before closure of the complainant’s case. 8

11. It is also the petitioner's case that when he submitted the list of documents required to be produced in his defence, the ICC orally directed him to indicate the relevance of each of those documents. It is for the said reason that the petitioner submitted a letter dated 27.08.2022 to the ICC, indicating the relevance of documents. The petitioner also complains that the ICC failed and avoided to summon documents that the petitioner sought, despite repeated requests and reminders.

12. The prayer was considered only on the last date of hearing i.e. 14.09.2022 and on that day, the ICC declined to summon 10 out of the 11 documents the petitioner desired to produce. The inquiry was then closed without production of the solitary document that the ICC permitted on the petitioner's behalf, crippling his defence, as the petitioner says. It is then the petitioner's case that of the 24 witnesses who were produced on his behalf as RW-1 to RW-24, he was not permitted to lead evidence. The ICC did not permit the petitioner to do the examination-in-chief of his witnesses. Instead, the ICC examined all the 24 witnesses themselves, recording those statements as their examination-in-chief. The petitioner's witnesses were then cross-examined, not only by the complainant, but also the ICC. It is, therefore, the petitioner's case that the ICC proceeded in violation of principles of natural justice, denying him a fair hearing, and acted with bias and mala fides in the conduct of the inquiry. They dealt with the inquiry in an arbitrary fashion in order to give undue advantage to the complainant and utterly prejudiced the petitioner's defence. There are many more details of violations of the same genre, where the petitioner calls natural justice a causality, resulting in prejudice to him. These would be noticed later in this judgment. 9

13. The petitioner has particularly pleaded a case that the IIT had no jurisdiction to frame the IITK Rules under the PoSH Act in view of the provisions of Section 11(1) thereof. According to the petitioner, an inquiry into a complaint under the PoSH Act can be made in accordance with the provisions of the service rules applicable to the employer, and where no such rules have been framed, it is to be done in the manner prescribed. The ‘manner prescribed’ is defined under Section 2(k) of the PoSH Act to mean prescribed by rules made under the last mentioned Act. The power to make rules under the PoSH Act vests in the Central Government, which is to be done by that Government by a notification in the official gazette. The Central Government has made rules under the PoSH Act, in exercise of their powers under Section 29, that is to say, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (for short, 'the PoSH Rules'). Therefore, inquiry into a complaint under the PoSH Act can either be held according to the service rules applicable to the employer’s establishment, and where no such rules exist, in accordance with the PoSH Rules. There is no jurisdiction with the employer to frame rules under the PoSH Act to hold an inquiry into a complaint under the said statute. It is, therefore, urged on behalf of the petitioner that the inquiry held in the petitioner’s case in accordance with the IITK Rules, which have been made by the IIT under the PoSH Act, is ultra vires the Act last mentioned, rendering the proceedings void.

14. The petitioner submitted his written brief of defence on

26.09.2022. The petitioner received a memo dated 01.11.2022, with the Director of the IIT forwarding a copy of the ICC's report dated 30.09.2022. The petitioner was directed to submit his representation against the said report, if any, by 16.11.2022. 10 The petitioner submitted a detailed representation dated

16.11.2022 against the report of the ICC, followed by a further letter dated 30.11.2022. He then received a memo dated

22.12.2022 from the Director of the IIT, saying that the Board of Governors of the IIT in their 251st Meeting held on 11.12.2022, had carefully considered the inquiry report and the petitioner's representations dated 04.11.2022, 08.11.2022 and 16.11.2022, along with another representation dated 30.11.2022, and after due deliberations, unanimously decided to reject the representations and accept the inquiry report submitted by the ICC.

15. It was also noticed in the memo dated 22.12.2022 that the petitioner had earlier been held guilty of sexually harassing another student working under his supervision, where the Board of Governors, in their 242nd Meeting held on 03.09.2021, had resolved to impose the penalty of withholding increments with cumulative effect for three years and that the said order of punishment was still in force. The memo under reference went on to say that considering the petitioner's previous misconduct as well as the one now arising, the Board, after extensive deliberations, had come to the conclusion that he was not a fit person to be retained in service of the IIT. The Board had, therefore, proposed to award the penalty of compulsory retirement in terms of Statute 13(9)(b)(b)(v) of the Statutes of the IIT. The Board had, accordingly, directed the issue of a show cause notice to the petitioner, seeking his clarification/ representation within 15 days as to why the penalty proposed be not awarded. The matter was directed to come up before the Board for a final decision along with the petitioner's representation, if any. The petitioner was, therefore, called upon to submit a representation against the penalty proposed to be awarded to him. 11

16. The petitioner instituted Writ-A No.121 of 2023, challenging the inquiry report dated 30.09.2022, the resolution of the Board of Governors of the IIT dated 27.10.2022, the memorandum dated 01.11.2022, the resolution of the Board of Governors dated 11.12.2022 and the memorandum dated

22.12.2022. The aforesaid writ petition was dismissed as withdrawn with liberty to file a fresh petition on 01.02.2023. The petitioner then submitted representations, numbering four, against the memorandum dated 22.12.2022, issuing him a show cause notice against the proposed penalty. These four representations were dated 4th, 5th, 6th and 7th January, 2023. In addition to these representations against the show cause dated

22.12.2022, the petitioner lodged an appeal under Rule 45 of the IITK Rules on 29.01.2023, challenging the inquiry report dated 30.09.2022 submitted by the ICC. In this appeal, the report was questioned on jurisdictional errors as well as the merits of the findings.

17. The Board of Governors, by their resolution dated

22.02.2023, which is quite eloquent, rejected the petitioner's appeal under Rule 45 in the first part, and in the second, his representations – all four against the show cause notice dated

22.12.2022, and punished the petitioner with an order for compulsory retirement from service. In accordance with the resolution of the Board of Governors dated 22.02.2023, the Director of the IIT issued an office order dated 01.03.2023, formally notifying the decision of the Board, punishing the petitioner with compulsory retirement, with effect from the date of the Director's order.

18. Aggrieved by the resolution of the Board of Governors of 12 the IIT dated 22.02.2023 and the order of the Director, notifying it dated 01.03.2023, the petitioner has instituted the present petition under Article 226 of the Constitution.

19. A counter affidavit has been filed on behalf of respondent Nos.2 to 6, and another, on behalf of respondent No.7. A rejoinder has been filed by the petitioner in reply to the counter on behalf of respondent Nos.2 to 6 and one separately to the counter affidavit on behalf of respondent No.7. In addition, there are supplementary counter affidavits dated 09.11.2023,

22.11.2023 and 28.07.2024, all filed on behalf of respondent Nos.2 to 6.

20. In the counter affidavit filed on behalf of respondent Nos.2 to 6, it is pleaded that the PoSH Rules have been approved by the Board of Governors of the IIT in exercise of their powers under Section 13(1) of the Institutes of Technology Act, 1961 (for short, ‘the Act of 1961’). These Rules were necessitated in view of the provisions of Section 11(1) of the PoSH Act. The CCS Rules, according to the respondents, are not applicable to the IIT, nor is there any provision under the Act of 1961 or the Statutes of the IIT, providing for the procedure and the manner of holding an inquiry into a complaint of sexual harassment. There are then pleadings to show that natural justice has been adhered to at various stages, consistent with the IITK Rules and the sensitive nature of the inquiry, where the rights of a woman, complaining of sexual harassment, were involved. It is emphasized that the procedure to hold an inquiry under the IITK Rules is flexible. It has been pleaded that the petitioner, by raising technical objections, wanted to procrastinate proceedings and violate the time limit of 90 days to complete an inquiry mandated by Section 11(4) of the PoSH Act. 13

21. The allegations of bias against the ICC have also been repelled, saying that it was a multi-membered body, drawing its members from different departments. The petitioner’s conduct was found blameworthy and his defence unsubstantiated by the ICC upon a consideration of evidence. The findings of the ICC, after due opportunity to the petitioner, have been accepted by the Board of Governors of the IIT. The question of quantum of punishment to be meted out to the petitioner too was carefully considered by the Board of Governors before the impugned order was passed.

22. The petitioner’s appeal under Rule 45 of the IITK Rules was duly considered and disposed of. It is highlighted that an appeal from the findings of the ICC to the Disciplinary Authority, that is to say, the Board of Governors, is a unique feature of the IITK Rules with no pari materia provisions in the PoSH Rules framed under the PoSH Act or the CCS Rules. The petitioner, therefore, had all protection in the matter of defending himself under the PoSH Rules, which he availed. It had been pleaded more than once that the CCS Rules do not apply to the IIT at all and the Board of Governors of the IIT are empowered under Section 13(1) of the Act of 1961 to make rules for proper and smooth functioning of the institution.

23. It must be recorded here that from a clarification matter arising out of Writ-A No.4878 of 2021, which pertains to an earlier proceeding against the petitioner with regard to sexual harassment, an order dated 25.04.2023 was passed by the learned Single Judge, post judgment. The order of the learned Single Judge dated 25.05.2023, passed on the clarification application in the writ petition aforesaid, was challenged in Special Appeal No.338 of 2023, where the Division Bench set aside the order passed by the learned Single Judge. The 14 petitioner moved the Supreme Court by a petition for Special Leave to Appeal No.14058 of 2023, wherein, their Lordships issued notice and ordered that until the next date of hearing, the petitioner shall not be evicted from the residential premises in his occupation. Later on, while hearing Special Leave Petition No.14058 of 2023, the following order was passed by the Supreme Court on 11.09.2023: “After hearing learned counsel for the parties, we find that the interim order dated 25.04.2023 passed in Writ Application No. 4878 of 2021 was challenged in Special Appeal No. 338 of 2023 wherein the impugned order dated 25.05.2023 has been passed allowing the said appeal. The Division Bench set aside the order dated 25.04.2023 of learned Single Judge passed on Modification Application – I.A.No. 7 of 2023. During hearing, it is conceded before us that the present Special Leave Petition is arising out of an interim proceedings, however, maintaining the interim order passed by this Court on 10.07.2023, the Writ Court may be requested to decide the Writ Petition No. 4492 of 2023 on its own merits, uninfluenced by the observations made in the impugned order dated 25.05.2023 and the order passed by the learned Single Judge on 25.04.2023. We find substance in the submissions jointly made by the parties. Accordingly, we defer hearing of this Special Leave Petition and request the High Court to decide the Writ Petition No. 4492 of 2023 as expeditiously as possible, uninfluenced by the observations made in the impugned order dated 25.05.2023 and the order dated 25.04.2023 passed by the learned Single judge. We further request the High Court to decide the said Writ Petition within a period of three months from the date of production of a copy of this order as far as possible. Re-list this Special Leave Petition in the month of February, 2024.”

24. This Court must notice that so far as this petition is concerned, the proceedings of the present matter have been expedited by the Supreme Court with the clarification that we would not take into account the orders passed by the learned Single Judge and the Division Bench in Writ-A No.4878 of 2021 and Special Appeal No.338 of 2023, respectively. We have, therefore, proceeded accordingly in this matter.

25. Heard Mr. Avneesh Tripathi, learned Counsel for the petitioner, Mr. Manish Goyal, learned Senior Advocate, assisted by Mr. Rohan Gupta, learned Counsel appearing on behalf of respondent Nos. 2 to 6 and Mr. Ashok Kumar Srivastava, learned Counsel appearing for respondent No. 7. 15

26. This Court must remark that the hearing in this matter ran into minute details and most of the time, learned Counsel for both sides attempted to charm this Court into entering the arena of appreciating the evidence of parties for and against the charge dealt with by the ICC and the Disciplinary Authority. Bearing in mind our limitations in a writ petition, we cannot arrogate to ourselves the powers of a first appellate Court, as if it were.

27. Broadly, there are two issues, amongst the many vociferously canvassed before us, that can legitimately be examined in the present writ petition. The first is: Whether the IIT was empowered to frame the IITK Rules under the PoSH Act? A corollary of this issue is: If the IIT did not have powers under the PoSH Act to make Rules, would the resultant inquiry under those rules be vitiated? The other substantial issue is: Whether the inquiry held was one in breach of principles of natural justice and the salutary procedure to hold an inquiry into misconduct involving the imposition of a major penalty?

28. So far as the first issue is concerned, there is little doubt that the inquiry here is one under the PoSH Act. Section 11 of the PoSH Act reads: “11. Inquiry into complaint.—(1) Subject to the provisions of Section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under Section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable: Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of Section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall 16 proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police: Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee. (2) Notwithstanding anything contained in Section 509 of the Indian Penal Code (45 of 1860), the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of Section 15. (3) For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely— (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; and (c) any other matter which may be prescribed. (4) The inquiry under sub-section (1) shall be completed within a period of ninety days.”

29. Section 11 (1) is relevant to the first issue. A bare reading of the statute would show that an ICC, where the respondent (delinquent) is an employee, is obliged to inquire into the complaint in accordance with the service rules applicable to the employer’s establishment and in the contingency, where no such rules exist, the Internal Committee must proceed in such manner as prescribed. Section 2(k) defines “prescribed’” in the following terms: “2. Definitions.—In this Act, unless the context otherwise requires,— (k) “prescribed” means prescribed by rules made under this Act;”

30. The power to make rules under the PoSH Act is provided under Section 29 thereof. Section 29 of the PoSH Act reads: “29. Power of appropriate Government to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely— 17 (a) the fees or allowances to be paid to the Members under sub-section (4) of Section 4; (b) nomination of members under clause (c) of sub-section (1) of Section 7; (c) the fees or allowances to be paid to the Chairperson, and Members under sub-section (4) of Section 7; (d) the person who may make complaint under sub-section (2) of Section 9; (e) the manner of inquiry under sub-section (1) of Section 11; (f) the powers for making inquiry under clause (c) of sub-section (2) of Section 11; (g) the relief to be recommended under clause (c) of sub-section (1) of Section 12; (h) the manner of action to be taken under clause (i) of sub-section (3) of Section 13; (i) the manner of action to be taken under sub-sections (1) and (2) of Section 14; (j) the manner of action to be taken under Section 17; (k) the manner of appeal under sub-section (1) of Section 18; (l) the manner of organising workshops, awareness programmes for sensitising the employees and orientation programmes for the members of the Internal Committee under clause (c) of Section 19; and (m) the form and time for preparation of annual report by Internal Committee and the Local Committee under sub-section (1) of Section 21. (3) Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. (4) Any rule made under sub-section (4) of Section 8 by the State Government shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.”

31. The submission of the petitioner on the applicability of the IITK Rules is firstly premised on ground that there are service rules applicable to the respondent’s establishment and these are the CCS Rules. The learned Counsel for the respondent IIT, on the other hand, has urged that the CCS Rules do not apply to the IIT, inasmuch as the IIT is governed by the Act of 1961, 18 the Statutes framed thereunder, besides the rules and regulations made by the Statutory Authorities of the IIT. The learned Counsel for the petitioner, during the course of his submissions, said that a number of inquiries under the PoSH Act, that were held earlier against various employees, were conducted according to the provisions of the CCS Rules. It is pointed out by the learned Counsel for the petitioner that an earlier inquiry under the PoSH Act held against the petitioner was undertaken in accordance with the CCS Rules. It is urged that these apply because no service rules, governing the holding of disciplinary proceedings, have been framed by the IIT.

32. The further submission is that since the CCS Rules would apply to the holding of an inquiry under the PoSH Act, the formality of procedure under Rule 14 of those Rules has to be observed. It is also emphasized that under the CCS Rules, a charge-sheet has to be issued, reducing the allegations against a delinquent into a definitive Article of charges, along with the imputations of misconduct. The list of documents and witnesses in support of each charge too has to be supplied to the delinquent. In this case, nothing of this kind has been done and the allegations in the complaint, which are interlapping and vague, have been determined by the ICC following a procedure not authorized by the law. It has resulted in prejudice to the petitioner as well. So far as this part of the petitioner’s submission is concerned, we are afraid that it cannot be accepted. The reason is that the IIT functions under the Act of 1961 and the CCS Rules, that apply to a government servant, as defined under Rule 2(h) thereof, would not apply proprio vigore. Rule 2(h) of the CCS Rules reads: “2. Interpretation.– In these rules, unless the context otherwise requires, - 19 (h) "Government servant' means a person who - (I) is a member of a Service or holds a civil post under the Union, and includes any such person on foreign service or whose services are temporarily placed at the disposal of a State Government, or a local or other authority; ii) is a member of a Service or holds a civil post under a State Government and whose services are temporarily placed at the disposal of the Central Government; iii) is in the service of a local or other authority and whose services are temporarily placed at the disposal of the Central Government;”

33. The petitioner, who is an employee of the IIT, governed by the Act of 1961, is, by no stretch of imagination, a government servant within the meaning of the CCS Rules. Merely because in the past or intermittently, there have been instances where the IIT have followed or applied the provisions of the CCS Rules to conduct disciplinary proceedings, or for that matter, even inquiries under the PoSH Act, would not make the CCS Rules applicable to the IIT or entitle its employees to claim that these apply.

34. The learned Senior Advocate for the respondent-IIT has said that in the earlier inquiry under the PoSH Act, which was undertaken against the petitioner, though done under the CCS Rules, the resort to those rules was at a time when the IITK Rules were not made and enforced. We do not wish to countenance or endorse in any manner the course of action hitherto adopted by the IIT in holding inquiries under the PoSH Act, or otherwise in accordance with the CCS Rules. We do not wish to comment on that issue at all because it is not necessary to do so. All that is relevant, in our opinion, is that the CCS Rules do not apply proprio vigore to a disciplinary proceeding held by the IIT or one under the PoSH Act. The Act of 1961 is a self-contained enactment providing for the establishment of the Institutes of Technology, including the IIT. Section 13(1) of the Act of 1961 confers residual powers on the Board of Governors, 20 as defined under Section 3(a) of the said Act to exercise all powers of the IIT, not otherwise provided for by the Act of 1961. The Board of Governors also have the power to make statutes and ordinances. Apparently, they also have the power to make rules. The power to make rules includes the power to make service rules for their employees.

35. What is not in dispute here is that the IIT, or so to speak, the Board of Governors of the IIT, have not framed or made any service rules for its teachers and employees. They have, in the past held disciplinary inquiries or those under the PoSH Act, drawing upon the provisions of the CCS Rules. May be, that course of action in the past has not been frowned upon by Courts or held invalid, but that does not make the CCS Rules applicable to the IIT proprio vigore, as already said. Also, the fact remains that no service rules have been framed or made by the IIT, in accordance with which, disciplinary proceedings against employees and teachers may be conducted. The question that then falls for consideration is: If in the absence of a charter of service rules made by the IIT in exercise of their powers under the Act or the Statutes, providing for the holding of disciplinary proceedings generally, can the IIT specifically make rules for the conduct of inquiries under the PoSH Act? We do not think so. While it is true that the IIT have all powers, including residual powers, enabling them in this behalf to make rules governing the holding of disciplinary proceedings against their employees and teachers under Section 13(1) of the Act of 1961, the said power would not be available to frame rules only for the purpose of holding an inquiry under the PoSH Act.

36. It is quite another matter that if the IIT, in the exercise of their powers under the Act, make service rules, or particularly rules dealing with the conduct of disciplinary proceedings 21 against their teachers and other employees, and as part of those rules, also provide for inquiry into charges of sexual harassment etc., an inquiry under the PoSH Act may be held in accordance with such rules. But, unless there are duly framed rules generally applicable to the IIT providing for the holding of disciplinary proceedings against their employees and teachers, they would have no power to frame rules to conduct inquiries under the PoSH Act alone. This is the irresistible conclusion that can be drawn from a bare reading of Section 11 of the PoSH Act. Section 11(1) envisages that an internal committee probing a complaint against an employee, called a respondent there, may make the inquiry in accordance with the provisions of service rules applicable to that employee or respondent, and then provides that if no such rules exist, in such manner as may be prescribed. The PoSH Act is a special Act and though not given overriding effect over other laws, is nevertheless a special Statute. It caters to a particular purpose and designed to curtail an emergent mischief in society. It is a legislation, primarily moved by judicial intervention in the much celebrated Vishaka and others v. State of Rajasthan and others, (1997) 6 SCC

241. Eschewing a chronological and searching perspective into the background that led to enactment of the PoSH Act, suffice it to say that it was enacted to promote security and gender equality for women in workplace, a phenomenon, need and necessity, that was the fallout of more women coming out to join all kinds of professions, jobs and callings, and work shoulder to shoulder with men.

37. Now, Section 28 of the PoSH Act provides: “28. Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.” 22

38. All that Section 28 means is that where any other statute or provision is made to safeguard the interest of women, that statute would not stand ousted from the field by the PoSH Act. But, this does not mean that anything provided by the PoSH Act to be done in a particular manner can be done in any other. Section 11(1) of the PoSH Act, as already said, envisages two situations for an establishment, where an employee working is complained of for sexual harassment etc. by a co-employee. The first is where service rules governing the holding of disciplinary proceedings made in exercise of their statutory powers by the establishment, already exist, and, the other, where no such service rules exist. If no service rules generally dealing with disciplinary proceedings exist in the establishment, the employer would have no jurisdiction under the PoSH Act to frame rules for the purpose. The Rules that would be attracted to a case of the latter kind would be rules made in the manner prescribed. Those rules are ones made in accordance with Section 29 of the PoSH Act by the Central Government. The PoSH Rules are already there, framed under the PoSH Act. Since we have already held on the basis of the material on record and the stand of parties that there are no service rules framed by the IIT, generally applicable to their employees and teachers in the matter of holding disciplinary proceedings, the IIT would not have the competence to make rules for dealing with complaints under the PoSH Act. That power, in the absence of existing service rules in the establishment, would vest in the Central Government and the rules made by them alone would apply.

39. It is next submitted by Mr. Manish Goyal that the IITK Rules have been made by the IIT in aid of the PoSH Act and the PoSH Rules; not contrary to them. These are rules adopted 23 and modified to suit the organizational structure of the IIT. The IITK Rules were notified and circulated to all concerned vide notification dated 01.12.2023, with no objection from anyone, including the petitioner. It is also urged that an inquiry done under the rules, like the one under consideration here, causes no prejudice to the petitioner, if one were to compare the procedure envisaged under the PoSH Rules and that under the IITK Rules. So far as the first part of these submissions goes, we do not think that the IITK Rules, which have been avowedly made for the purpose of providing for the manner of holding inquiries under the PoSH Act, can be regarded as “the service rules applicable to the respondent”, envisaged under sub- Section (1) of Section 11 of the Act, last mentioned. The words “service rules” are words of wider import and generic connotation, signifying a reference to rules governing service conditions or matters relating to service in an establishment. It cannot be regarded to mean rules made by an employer for the purpose of inquiry into complaints under the PoSH Act alone. To construe the words “service rules applicable to the respondents”, occurring in sub-Section (2) of Section 11 also as rules essentially framed to inquire into complaints under the PoSH Act, would be doing violence to the unequivocal intendment of the statute.

40. Therefore, to suggest that the PoSH Rules, purporting to be made by the IIT in the exercise of their powers under Section 13(1) of the Act of 1961 should be regarded as “service rules applicable to the respondent”, as envisaged under sub- Section (1) of Section 11 of the PoSH Act, is a proposition difficult to accept. While it is true that if there were existing services rules applicable to the establishment, generally dealing with service matters of employees and teachers of the IIT in this 24 case, a complaint under the PoSH Act could very well be dealt with under those rules. But, it is clearly beyond the competence of the IIT, like any other establishment or employer, specifically to make rules under the PoSH Act in the exercise of their powers of rule-making, that do not generally qualify as service rules. The Rules under the PoSH Act, where there are no existing service rules generally applicable to the service conditions of employees of an establishment, can only be made in the manner prescribed, that is to say, by the Central Government. The inescapable conclusion, therefore, is that the IITK Rules made by the IIT are ultra vires the provisions of Section 11(1) of the PoSH Act.

41. So far as the issue of the IITK Rules being notified and circulated to all concerned vide notification dated 01.12.2023 with no objection from any quarter, including the petitioner, is concerned, there cannot be any acquiescence or estoppel in the matter. If the rules are beyond the competence of the IIT to make under Section 11(1) of the PoSH Act, as already held, a non-protest or even express acceptance thereof by the employees, including the petitioner, cannot validate the rules or imbue them with life. After all, the power to make rules under an Act is a matter of legislative competence and if the Authority making the rules has not been given the power to make rules, no amount of acceptance, acquiescence or an act of estoppel would avail the respondents.

42. So far as the last limb of the submissions advanced by Mr. Goyal is concerned, for a first, it must be remarked that it is a salutary principle of the law that where a statute prescribes a particular thing to be done in a particular manner, it must be done in that manner alone or not at all. The inquiry here is not on a charge of misconduct, arising out of sexual harassment, 25 generally under the service rules, if any, applicable to the IIT. It is an inquiry under the PoSH Act, a special statute. That statute directs the inquiry to be undertaken under Section 11(1) and its various other provisions in a particular manner. We have found, on an analysis of the matter, that in the present case, it was incumbent for the IIT to have followed the procedure envisaged under the PoSH Rules, framed under the PoSH Act. The inquiry, therefore, had to be held in the manner prescribed, that is to say, under the PoSH Rules and in no other manner. Therefore, in the background of the special statute and its provisions, the way they apply to the IIT, the question of prejudice may not be very relevant. After all, the IIT under the PoSH Act are obliged to follow the rules framed under the Act last mentioned, if they are to hold an employee or a teacher, like the petitioner, guilty under the provisions of the said Act. They could not have followed or applied any other kind of rules to the proceedings.

43. Assuming that the question of prejudice is still relevant, we proceed to examine the said issue. In support of this submission of his, Mr. Goyal has urged that invalidation of proceedings, inquiring into sexual misconduct, based on a hyper-technical interpretation of the applicable service rules should be eschewed. In aid of his submission on the point, Mr. Goyal has placed reliance upon the decision of the Supreme Court in Union of India and others v. Mudrika Singh, (2022) 16 SCC 456. He has particularly drawn our attention to paragraph Nos.38, 39, 41, 42, 44 and 45 of the report, which read: “38. Accordingly, on an analysis of the scope and statutory purpose of the Army Act, 1950, the Constitution Bench in S.N. Mukherjee [S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 : 1990 SCC (Cri) 26 669 : 1991 SCC (L&S) 242] concluded that there was no requirement of furnishing reasons.

39. After adverting to the principles enunciated by the Constitution Bench in S.N. Mukherjee [S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC (L&S) 242] and Som Datt Datta [Som Datt Datta v. Union of India, 1968 SCC OnLine SC 73 : AIR 1969 SC 414] , this Court in Dinesh Kumar [Union of India v. Dinesh Kumar, (2010) 3 SCC 161 : (2010) 1 SCC (L&S) 1135] in the context of Rule 149 of the BSF Rules, 1969, held : (Dinesh Kumar case [Union of India v. Dinesh Kumar, (2010) 3 SCC 161 : (2010) 1 SCC (L&S) 1135] , SCC pp. 168-69, para 23) “23 [Ed. : Para 23 corrected vide Official Corrigendum No. F.3/Ed.B.J./46/2010 dated 7-4- 2010.] . In this backdrop, it is clear that the provisions for the SSFC and the appellate authority are pari materia, more particularly in case of Rule 149 and Section 117(2) of the Act, with the provisions which were considered in both the above authorities. Therefore, there cannot be any escape from the conclusion that as held by the Constitution Bench, the reasons would not be required to be given by the SSFC under Rule 149 or by the appellate authority under Section 117(2) of the Act. This position is all the more obtained in case of SSFC, particularly, as the legislature has chosen not to amend Rule 149, though it has specifically amended Rule 99 w.e.f. 9-7-2003. It was pointed out that in spite of this, some other view was taken by the Delhi High Court in Nirmal Lakra v. Union of India [Nirmal Lakra v. Union of India, 2002 SCC OnLine Del 1134 : (2003) 102 DLT 415] . However, it need not detain us, since Rule 149 did not fall for consideration in that case. Even otherwise, we would be bound by law declared by the Constitution Bench in S.N. Mukherjee v. Union of India [S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC (L&S) 242] .” (emphasis supplied)

41. In the above circumstances, the High Court was in error on both the grounds which have weighed in its ultimate decision. There was no error of jurisdiction on the part of the Commandant in seeking clarification in regard to the date of the incident by calling for an additional RoE. As we have noted, the respondent was not prejudiced since he understood the allegations against him as pertaining to the events which transpired on the night when he was on duty, intervening 16-4-2006 and 17-4-2006, and more specifically in the early hours of 17-4-2006.

42. On the second aspect, the decision of the High Court has failed to notice the judgment of this Court in Dinesh Kumar [Union of India v. Dinesh Kumar, 27 (2010) 3 SCC 161 : (2010) 1 SCC (L&S) 1135] [which in turn is based on para 40 of the principles enunciated by the Constitution Bench in S.N. Mukherjee [S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC (L&S) 242] ]. The charge against the respondent was found to have been duly substantiated by evidence on the record. While dealing with the respondent's statutory petition under Section 117, the Director General of BSF, reduced the quantum of sentence. He was empowered to do so in accordance with the provisions of Section 48 of the BSF Act, 1968.

44. Before we conclude our analysis, we would also like to highlight a rising trend of invalidation of proceedings inquiring into sexual misconduct, on hypertechnical interpretations of the applicable service rules. For instance, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 penalises several misconducts of a sexual nature and imposes a mandate on all public and private organisations to create adequate mechanisms for redressal. However, the existence of transformative legislation may not come to the aid of persons aggrieved of sexual harassment if the appellate mechanisms turn the process into a punishment. It is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution. It is also important to be mindful of the power dynamics that are mired in sexual harassment at the workplace. There are several considerations and deterrents that a subordinate aggrieved of sexual harassment has to face when they consider reporting sexual misconduct of their superior.

45. In the present case, the complainant was a constable complaining against the respondent who was the head constable — his superior. Without commenting on the merits of the case, it is evident that the discrepancy regarding the date of occurrence was of a minor nature since the event occurred soon after midnight and on the next day. Deeming such a trivial aspect to be of monumental relevance, while invalidating the entirety of the disciplinary proceedings against the respondent and reinstating him to his position renders the complainant's remedy at naught. The history of legal proceedings such as these is a major factor that contributes to the deterrence that civil and criminal mechanisms pose to persons aggrieved of sexual harassment. The High Court, in this case, was not only incorrect in its interpretation of the jurisdiction of the Commandant and the obligation of the SSFC to furnish reasons under the BSF Act, 1968 and Rules therein, but also demonstrated a callous attitude to the gravamen of the proceedings. We implore courts to interpret service rules and statutory regulations governing the prevention of sexual harassment at the workplace in a 28 manner that metes out procedural and substantive justice to all the parties.”

44. The facts giving rise to the issue involved in Mudrika Singh (supra) can best be recapitulated from the succinct description of these in the report of their Lordships’ judgment. These read: “1. The Union of India and officials of the Border Security Force (“BSF”) are in appeal against a judgment of a Division Bench of the Calcutta High Court dated 18-12-2018 [Union of India v. Mudrika Singh, 2018 SCC OnLine Cal 16862] which quashed disciplinary proceedings against the respondent and reinstated him to his initial position in the BSF.

2. In April 2006, at the time of the alleged misconduct, the respondent was a Head Constable in the BSF and was deployed to the Seventy-second Battalion. On 2-5-2006, the Commandant directed the Deputy Commandant to prepare a record of evidence (“RoE”) against the respondent for an offence constituting “disgraceful conduct” under Section 24(a) of the Border Security Force Act, 1968 (“the BSF Act, 1968”). The specific allegation, as set out in the order, was as follows: “DISGRACEFUL CONDUCT OF AN UNNATURAL KIND In that he, between 0200 hrs to 0600 hrs on 16-4- 2006 while on Naka duty under BOP Sahab Khan committed sodomy on the person of No. [xyz] Const [xyz] of the sam(e) Battalion.”

3. The incident in question is alleged to have taken place on the night intervening 16-4-2006 and 17-4- 2006. The complainant, a Constable in the BSF, was on Naka duty between 0200 to 0600 hrs when the respondent is alleged to have committed an act of sexual assault on him. The complainant submitted a written complaint on 19-4-2006. Under the BSF Act, 1968, such conduct is liable to be prosecuted under Section 24(a) which reads as follows: “24. Certain forms of disgraceful conduct.—Any person subject to this Act who commits any of the following offences, that is to say— (a) is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind; or (b)-(c)*** shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.” 29

4. The RoE was prepared by the Deputy Commandant and submitted to the Commandant. On 10-6-2006, the Commandant noted that on a scrutiny of the RoE proceedings, it was found that there was an inconsistency in the statements of the witnesses as regards the date on which the incident had occurred. Hence, on 10-6-2006, the Commandant called for the preparation of an additional RoE. Following the receipt of the additional RoE, the Commandant issued an order to convene a Summary Security Force Court (“SSFC”) to try the respondent. In the course of the evidence which was recorded pursuant to the direction of the Commandant seeking an additional RoE, the complainant stated that the incident took place on 17-4-2006. The respondent was provided with copies of the RoE, additional RoE and the charge-sheet on 3-8- 2006.

5. On 7-8-2006, the SSFC convened at the Headquarters of the Seventy-second Battalion of the BSF, at Narayanpur, Malda (West Bengal) for enquiring into the charge under Section 24(a) of the BSF Act, 1968. The respondent pleaded not guilty to the charge. Four prosecution witnesses were examined and the respondent was furnished with an opportunity to cross-examine them and to call for defence witnesses. The SSFC found the respondent guilty of the charge and demoted him to the rank of a Constable as a punishment.

6. On 6-9-2006, the respondent filed a statutory petition under Section 117 [ “117. Remedy against order, finding or sentence of Security Force Court.— (1) Any person subject to this Act who considers himself aggrieved by any order passed by any Security Force Court may present a petition to the officer or authority empowered to confirm any finding or sentence of such Security Force Court, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.(2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any Security Force Court which has been confirmed, may present a petition to the Central Government, the Director General, or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the Director General, or the prescribed officer, as the case may be, may pass such order thereon as it or he thinks fit.”] of the BSF Act, 1968 before the Director General of the BSF to challenge the conviction recorded by the SSFC on 7-8-2006. The statutory petition was heard by the appellate authority—the Director General of BSF and was disposed of by an order dated 18-10-2006. While the charge against the respondent was found to have been established, the punishment of reduction to the rank of Constable was commuted, having regard to the fact that the respondent had over 22 years of unblemished 30 service with 21 rewards to his credit. The respondent was informed that the Director General of the BSF had commuted the sentence of reduction to the rank of Constable by substituting it with the following: “(i) ‘To forfeit 5 years services for the purpose of promotion’; (ii) ‘To forfeit 7 years past service for the purpose of pension’; and (iii) ‘To be severely reprimanded’.”

7. The respondent moved the High Court of Calcutta under Article 226 of the Constitution. A Single Judge of the High Court, by an order dated 7-5-2009 [Mudrika Singh v. Union of India, 2009 SCC OnLine Cal 1079] , set aside the order of punishment on the ground that: (i) The original RoE was insufficient to prove the charge; and (ii) The order of the Commandant for preparing an additional RoE was beyond jurisdiction.

8. The judgment [Mudrika Singh v. Union of India, 2009 SCC OnLine Cal 1079] of the Single Judge has been upheld by the impugned judgment of the Division Bench of the High Court on 18-12-2018 [Union of India v. Mudrika Singh, 2018 SCC OnLine Cal 16862] on the ground that: (i) The Commandant did not have jurisdiction to direct the preparation of an additional RoE under Rule 51 of the Border Security Force Rules, 1969 (“the BSF Rules, 1969”) as it stood at the relevant time; and (ii) No reasons were furnished by the SSFC or the appellate authority—Director General of BSF—for holding the respondent guilty.”

45. On the submissions of parties, the questions that arose for consideration before their Lordships are detailed in the report thus: “12. Essentially, down to its core, the controversy in the present case turns upon two aspects : firstly, whether the Commandant prior to the amendment of Rule 51 in 2011 had jurisdiction to direct the preparation of an additional RoE; and secondly, whether the finding of guilt which has been recorded by the SSFC stands vitiated in the absence of reasons. Now, before we analyse the first of the above two facets, it becomes necessary to understand the circumstances in which the Commandant directed the Assistant Commandant to prepare an additional RoE on 10-6- 2006.” 31

46. In answering the questions involved, their Lordships were of opinion that the amendment to Rule 51 of the BSF Rules, 1969 was clarificatory in nature and the Commandant always had the power to direct under the unamended BSF Rules, 1969, the preparation of an additional RoE or abstract of evidence. This power was inferred by their Lordships as one implicit in Rules 48 and 51 read with Rule 6 of the BSF Rules, 1969 as these stood before the amendment. The amendment to the BSF Rules, 1969 made after the offence was regarded as clarificatory and, therefore, retrospective.

47. So far as the other issue, which fell for consideration of their Lordships in Mudrika Singh, the holding was that going by consistent authority and on the terms of the statute involved, a Summary Security Force Court was not required to give reasons for the punishment awarded, though a General Security Force Court and a Petty Security Force Court were so obliged. It is on the foot of the said conclusions that the remarks of their Lordships, particularly in paragraph Nos.44 and 45 of the report, are based. Also, the remarks in paragraph Nos.44 and 45 have to be understood in the background of the fact that what was discrepant between the RoE, initially drawn up, and that done as the additional RoE was the date of the incident alone. The discrepancy was if the incident occurred on the 16th of April, 2006 or the 17th. It had happened in the night intervening 16th/ 17th April. In the RoE, there was a discrepancy in the statement of witnesses as regards the date of the incident leading the Commandant to direct an additional RoE. The additional RoE clarified the fact that the incident happened in the night intervening 16th / 17th of April, 2006, or to be more specific, as it appears, in the wee hours of the 17 th of April. Their Lordships noticed that this was a position, which the 32 charged employee confirmed in his evidence, but the High Court had found the discrepant version in the evidence earlier recorded about the date of the incident to be a vitiating factor. Their Lordships held this a minor discrepancy regarding the date of occurrence “since the event occurred soon after midnight and on the next day”, to borrow the words of their Lordships. It was in that context remarked that this small discrepancy was not of such significance as would invalidate the entire proceedings. The other remarks about furthering the purpose of rules meant to prevent sexual harassment at workplace came in the background of these particular features that were there in Mudrika Singh. This is hardly the case here. The case here is not based upon a hyper-technical objection, emanating from a minor discrepancy in evidence or the insistence on a requirement, like the one in Mudrika Singh, to write reasons for the decision that the statute did not warrant. The issue here is a substantial one; and, that is, the rules according to which inquiry into the case of sexual harassment was held not being made by the Authority competent under the law in the manner prescribed.

48. Now, to examine if the IITK Rules, according to which the inquiry was held, are, in any way, different from those framed under the PoSH Act in the manner prescribed, that is to say, the PoSH Rules made by the Central Government; and, if the two rules are different, would following the IITK Rules to hold an inquiry prejudice the petitioner? In order to answer this question, one has to look to the provisions of the PoSH Act and the PoSH Rules on one hand, juxtaposed against the relative provision under the IITK Rules and find out if there are such differences as might prejudice the petitioner in the matter of his defence. A comparison of the provisions of the PoSH Act and 33 the PoSH Rules framed thereunder and the IITK Rules made by the IIT, may be summarized in tabular form thus: Sr. No.

2. Particulars PoSH Act and the PoSH Rules IITK Rules Source of Power PoSH Rules enacted under Section 29 of the PoSH Act IITK Rules enacted under Section 13(1) of the Act of 1961 read with Section 11(1) of the PoSH Act. Constitution of ICC The constitution of the Internal Complaints Committee specified by Section 4 of the PoSH Act The constitution of the Internal Complaints Committee has been prescribed by Rule 4 of the IITK Rules: Constitution of the ICC according to Section 4 of the PoSH Act:

1. Presiding Officer (woman at a senior level)

2. Not less than two members from amongst employees committed to the cause of women/ experience in social work/ have legal knowledge

3. One member from amongst non-governmental organization or association committed to the cause of women or a person familiar with issues relating to sexual harassment. One half of the nominated persons as aforesaid to be

1. Presiding Officer, to be a senior woman Professor of the Institute;

2. one person from amongst the academic staff of the Institute;

3. one person from amongst the non-academic staff of the Institute;

4. two person from amongst academic/ non-academic staff of the Institute committed to the cause of women/ experience in social work/ knowledge; and

5. one person from amongst non- governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. At least one-half of the total members to be so nominated shall be women.

3. Manner of preliminary inquiry No provision for a preliminary inquiry Rule 16 envisages a preliminary inquiry and summary rejection of the complaint 4(a) Statement of parties during regular inquiry Rule 7. Manner of inquiry into complaint.—(1) Subject to the provisions of Section 11, at the time of filing the complaint, the complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witnesses. (2) On receipt of the complaint, the Complaints Committee shall send one of the copies received from the aggrieved woman under sub-rule (1) to the respondent within a period of seven working days. (3) The respondent shall file his reply to the complaint along with his list of documents, and Rule 18. On receipt of the complaint, the Committee shall as far as possible within seven working days, send a copy of the complaint along with the names and addresses of witnesses and supporting documents, received along with the complaint, to the respondent. At the same time, the Committee shall summon the respondent to appear in person and file his reply within a period not exceeding ten working days before the Committee. The summon notice shall contain the date, time and venue of the inquiry proceedings. Summon notice shall simultaneously be issued to the complainant appearance in the hearing. as well 4(b) Procedure of holding regular inquiry 34 names and addresses of witnesses, within a period not exceeding ten working days from the date of receipt of the documents specified under sub- rule (1). Rule 7. Manner of inquiry into complaint.— (4) The Complaints Committee shall make inquiry into the complaint in accordance with the principles of natural justice. (5) The Complaints Committee shall have the right to terminate the inquiry proceedings or to give an ex-parte decision on the complaint, complainant or respondent fails, without sufficient cause, to present herself or himself for three consecutive hearings convened by the Chairperson or Presiding Officer, as the case may be: Provided that such termination or ex-parte order may not be passed without giving a notice in writing, fifteen days in advance, the party concerned. (6) The parties shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of the before proceedings Complaints Committee. (7) In conducting the inquiry, a minimum of three Members of the Complaints Committee including the Presiding Officer or the Chairperson, as the case may be, shall be present.

19. The respondent shall in compliance of the notice as above, submit his reply to the complaint in six copies together with his own list of witnesses stating in clear terms their relevance to his defense, their addresses and supporting documents to the Committee.

20. The Presiding Officer shall make available to the complainant a copy of the reply filed by the respondent along with the list of witnesses and the supporting documents.

21. The aggrieved woman shall thereafter be allowed to submit her rejoinder, if any. Rule 22. Both the parties, i.e., the aggrieved woman and respondent shall be afforded reasonable opportunity to present and defend their case.

23. After the first date of hearing, subsequent hearing shall, as far as possible, be carried out on day-to- day basis. Should the respondent or the complainant fail, without valid ground or sufficient cause, to be present on any date of hearing before the Committee or the Presiding Officer, the Committee shall have the right to conduct ex- parte proceedings and to render ex-parte decision on complaint. Provided that such termination or ex-parte order may not be passed without giving a notice in writing at least three days in advance to the party concerned.

24. The Committee may suo-motto summon/call any person to appear as a witnesses if in its opinion, it shall be in the interest of justice.

25. The Committee shall have the right to summon, as many times as it deems necessary, the respondent, aggrieved woman and/or any witness supplementary testimony and/or clarifications.

26. The Committee shall have the power to summon the production of any official paper or documents pertaining or related to the subject matter of complaint, which in its opinion may be of assistance to the inquiry.

27. The past sexual history of the aggrieved woman shall not be 35

5. Hearing evidence post closure of inquiry There is no provision in the PoSH Act or the PoSH Rules to receive evidence after hearing before the ICC is over.

6. Manner of taking action sexual harassment against Rule 9. Except in cases where service rules exist, where the Complaints Committee arrives at the conclusion that the allegation respondent has been proved, it shall recommend employer or the District Officer, as the case may be, to take any action including a warning, written apology, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counselling session or carrying out community service. subjected to probe during the inquiry proceedings and any such information shall be deemed to be irrelevant for the purposes of complaint of sexual harassment.

28. The presence of a minimum of four members including the Presiding Officer shall necessary inquiry proceedings.

29. All inquiry proceedings shall be recorded by the Committee in writing. Rule 35. Nothing shall preclude the Committee or the Institute from taking cognizance of any new fact or evidence which may arise or be brought before it during inquiry the pendency of proceedings or even after the submission of findings/report to the appropriate authorities of the Institute. However, in such case, the committee shall be required to submit its supplementary report to the Director. Rule 39. The Committee shall after completion of inquiry submit a detailed and reasoned report to the Director at the earliest but not ten days after completion of the inquiry along with its recommendations thereto. a. If the Committee concludes that the allegations against respondent stand proved, it shall submit its report to the Director for awarding appropriate punishment as per the Statutes of the Institute. b. If the Committee concludes that allegations against the responded are malicious or false or forged/misleading documents have been produced on the part of the aggrieved woman, recommend to the Director to take action against such act or falsification, on the part of the aggrieved woman.

40. The Institute authorities shall act upon the recommendations within 60 days of its receipt and inform the Committee of action taken.

5. Appeal Rule 11. Subject to the provisions of Section 18, any person aggrieved from the recommendations made under sub-section (2) of Section 13 or If the aggrieved Rule 45. woman/complainant respondent is not satisfied with the findings of the Committee, she/he may prefer an appeal before the 36 under clauses (i) or clause (ii) of sub-section (3) of Section 13 or sub-section (1) or sub- section (2) of Section 14 or non- Section 17 or implementation of recommendations may prefer an appeal to the appellate authority notified under clause (a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946). Board of Governors along with all necessary documents. Provided the appeal must be filed within a period of ninety days of the recommendations/ findings/ decision of the Committee.

49. The question that is material to the petitioner is, if the inquiry were held under the PoSH Rules instead of the IITK Rules, would it have made any difference to the outcome? Apart from the broad differences under the two sets of Rules, which may not prejudice the petitioner, there are prominent features under the IITK Rules, which would inevitably work to the petitioner's prejudice. The foremost, amongst these Rules, is Rule 23 of the IITK Rules, when compared with Rule 7 of the PoSH Rules. It has to be borne in mind that the question of prejudice under the IITK Rules is being judged on a comparison of the pari materia provisions in the PoSH Rules.

50. Rule 23 of the IITK Rules provides that after the first date of hearing, the subsequent hearing before the Committee would proceed on a day-to-day basis, as far as possible. A speedy inquiry, by itself, does not prejudice the delinquent, nor do we intend to say that when we note that under sub-Rule (5) of Rule 7 of the PoSH Rules, there is no provision for the inquiry to be held on a day-to-day basis, as far as possible. The point of prejudice, which seems to come in the case of an inquiry held under the IITK Rules, is where Rule 23 provides that if the respondents or the complainant fail, without valid ground or sufficient cause, to be present on any date of hearing before the Committee, the Committee shall have the right to conduct ex parte proceedings and render an ex parte decision on the 37 complaint. By contrast, under sub-Rule (5) of Rule 7 of the PoSH Rules, it is provided that if the complainant or the respondents fail, without sufficient cause to be present for three consecutive hearings before the Complaints Committee, the Committee may give an ex parte decision. Whereas under Rule 23 of the IITK Rules, the power to proceed ex parte and give an ex parte decision is given to the Committee by giving the absenting party a notice in writing, at least three days in advance, the proviso to sub-Rule (5) of Rule 7 of the PoSH Rules requires the Complaints Committee to give a notice in writing 15 days in advance to the party in default.

51. In our opinion, it would be a fallacious test to apply if the complainant and the delinquent are placed on the same pedestal under Rule 23 of the IITK Rules, as regards a single day’s absence, to invite an ex parte decision or the notice period of three days. The correct test to determine this is if the procedure under the IITK Rules, when compared with the pari materia provisions under the PoSH Rules, is more stringent, liberal or the same. We find that the procedure under Rule 23 of the IITK Rules together with its proviso, certainly postulates a procedure, that is far more stringent than sub-Rule (5) of Rule 7 of the PoSH Rules. Whereas the IITK Rules empower the Committee to punish a single day's default by the delinquent with an ex parte decision, sub-Rule (5) of Rule 7 of the PoSH Rules invests the Committee with this power after a default of three consecutive hearings. Likewise, a decision, ex parte, can be rendered by the Committee under the IITK Rules by giving the delinquent a notice of three days, whereas in the case of the PoSH Rules, the delinquent would have to be given a notice of 15 days in advance before an ex parte decision is given by the Complaints Committee. This marked difference in the period 38 of time in the matter of punishable default and the breathing time to redeem the default, certainly makes the procedure under the IITK Rules far more prejudicial to the petitioner's interest as compared to the procedure envisaged under the PoSH Rules.

52. The next provision in the IITK Rules, that may be material to the question of prejudice for the petitioner or any other delinquent, is Rule 35. It enables the Complaints Committee to take cognizance of any new fact or evidence, that may be brought to its notice during the pendency of the inquiry or even after submission of findings/ report to the appropriate Authority of the IIT. The finding or the report in a case of this kind has to take the form of a supplementary report to the Director. By contrast, there is no provision under the PoSH Rules that may entitle the Complaints Committee to hear any evidence, after the inquiry is over. The powers conferred upon the Complaints Committee by the IIT through the IITK Rules are most unusual and carry provisions of a very drastic nature, that may cause utter prejudice to a delinquent, like the petitioner.

53. The provisions of Rule 35, in fact, militate against the fundamentals of what salutary principles, governing the holding of any domestic inquiry, would dictate. The Rule enables the ICC to take notice of new facts or evidence, that may not find place in the complaint instituted by the complainant or her evidence. It may come from any quarter and the ICC would be empowered to take cognizance of it. Likewise, the ICC, after all evidence is over and the inquiry report submitted to the appropriate Authority of the IIT, is entitled to take note of new facts and evidence. In such cases, they are empowered to submit a supplementary report. The role of an Inquiry Officer or Inquiry Committee in any disciplinary proceedings, which an 39 inquiry under the PoSH Act is akin to, is different from an investigator's role. An investigator, after all, does not give findings, but only submits a report together with evidence for the Court or the Tribunal, to decide upon whether the charge is established against the accused or not. Since the conclusions of the investigator are only in the nature of a report on which the process of trial commences, they have the freedom to further investigate after they have put in their report and by filing a supplementary report. There too, they have to take leave of the Court to proceed further with the investigation once a report is put in. Here, the Complaints Committee is a body empowered to record findings on the allegations that figure in the complaint.

54. To add to the allegations, after a report is submitted on the basis of new facts, coming to the Complaints Committee's notice under the IITK Rules and hearing further evidence indeed seriously prejudices the delinquent's right, who is exposed to a multiplicity and perpetuality of charges, where the jeopardy never seems to end. This is why we think that the provisions of Rule 35 of the IITK Rules are very drastic and seriously prejudice a delinquent, like the petitioner, if compared with the procedure under the PoSH Rules, where the Complaints Committee has no such power. The petitioner would stand to face definitive and drastic prejudice while facing an inquiry under the PoSH Act, in accordance with the IITK Rules, vis-à-vis the PoSH Rules.

55. The procedure for an appeal postulated under Rule 45 of the IITK Rules is also one at gross variance with the procedure under Rule 11 of the PoSH Rules. The complainant or the respondent, whoever is not satisfied with the findings of the Committee under the IITK Rules, may prefer an appeal to the 40 Board of Governors along with necessary documents. The appeal has to be preferred within the time period of 90 days of the recommendations/ findings or report of the Committee. By contrast, what is made appealable under the IITK Rules is a recommendation by the ICC, so far as the delinquent is concerned, under Clause (i) or (ii) of sub-Section (3) of Section 13 of the PoSH Act. This, by itself, does not much prejudice the petitioner or any delinquent, because under the IITK Rules, findings of the Inquiry Committee have been made appealable to the Board of Governors of the IIT. What, in fact, prejudices a delinquent and would prejudice the petitioner under the IITK Rules, is the fact that whereas the forum of appeal from the findings of the Inquiry Officer is before a domestic body, being the Board of Governors, with its own pitfalls and disadvantages, emanating from lack of training in the law as a body entitled to hear and decide an appeal, the possibility of some in-house biases etc. the forum under Rule 11 of the PoSH Rules to hear an appeal under the PoSH Rules is the Appellate Authority notified under Clause (a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946, which is the Tribunal or Court, an independent authority, not part of the establishment.

56. Besides the prejudice that we have so far tested on a comparison of the PoSH Rules and the IITK Rules, the exercise of the right of appeal on one hand and the decision on the recommendations of the ICC on the other, also seems to bring out a sharp incongruity within the provisions of the IITK Rules. The ICC is obliged under Rule 39 to submit a detailed and reasoned report to the Director, not later than 10 days after completion of inquiry, along with its recommendations. If the ICC concludes that the allegations against the delinquent stand 41 proved, the report shall be made to the Director, recommending the award of appropriate punishment in accordance with the statutes of the IIT. The Authorities of the IIT are enjoined by Rule 40 of the IITK Rules to act upon the recommendations of the ICC within 60 days of receipt and inform the Committee of the action taken.

57. Now, from the date the Committee submit their report, assuming that it is provided to the delinquent immediately, he has the right to prefer an appeal within 90 days, but the Authorities of the IIT are enjoined by Rule 40 to decide within 60 days of receipt of the Committee's report. This virtually curtails the period of limitation given to the delinquent to prefer an appeal against the findings of the ICC from 90 days under the proviso to Rule 45, to less than 60 days because of Rule 40 of the IITK Rules. This incongruity, which is intrinsic to an interplay between the provisions of Rules 40 and 45 of the IITK Rules, prejudices the delinquent – someone like the petitioner, in exercising his right of appeal.

58. One would not pay much attention to the last detail on the issue of prejudice, but the others indeed cause serious prejudice. Still, there being tangible prejudice to the petitioner, if the inquiry proceeds in accordance with the IITK Rules, contrasted with what he would have to face if the inquiry were held in accordance with PoSH Rules, the IITK Rules would have to be held invalid, also on the test of prejudice.

59. We have already held that the IITK Rules are not within the authority of the IIT to frame under the PoSH Act. The element of prejudice being evident across various provisions of the IITK Rules, when compared with the PoSH Rules, it is very difficult to accept the respondent's case that holding the inquiry 42 here in accordance with the IITK Rules does not make any material difference or cause such prejudice to the petitioner, as may warrant interference with the conclusions of the inquiry and the action taken on ground that all of it was done under the IITK Rules, which are really not authorized to be framed by the IIT under the PoSH Act. The answer to the first question would be that the IIT is not empowered to frame the IITK Rules under the PoSH Act. The answer to the corollary of the said question would be that the inquiry held under the IITK Rules, which the IIT did not have power to make under the PoSH Act, would be vitiated.

60. This takes us to the second question whether the inquiry held was in breach of the principles of natural justice and the salutary procedure to hold an inquiry into misconduct, involving the imposition of a major penalty.

61. On the question of violation of principles of natural justice, this Court was addressed in great detail by learned Counsel appearing for the parties. No doubt, Rule 23 of the IITK Rules, under which the Committee proceeded, provides for subsequent hearings, after the first date of hearing to be scheduled, as far as possible, on a day-to-day basis, but that, to all seeming, does not mean a roller coaster ride, where the delinquent may not understand the evidence led against him and prepare himself for cross-examination or his defence. The petitioner precisely faced that situation before the ICC of the IIT. After the first date of hearing, which was scheduled on

18.07.2022, or the preliminary inquiry, as it was called, the ICC fixed the next date of regular hearing on 21.07.2022 and then on 27.07.2022. Thereafter, they went at a breath-taking speed, scheduling hearings on 28.07.2022, 29.07.2022, 30.07.2022,

01.08.2022, 04.08.2022, 05.08.2022, 06.08.2022, 08.08.2022, 43

10.08.2022, 16.08.2022, 17.08.2022, 18.08.2022, 19.08.2022,

22.08.2022, 23.08.2022, 25.08.2022, 26.08.2022, 29.08.2022,

30.08.2022, 01.09.2022, 02.09.2022, 03.09.2022, 05.09.2022,

06.09.2022, 07.09.2022, 08.09.2022, 12.09.2022, 14.09.2022 and concluding on 21.09.2022. There is always a difference between hurry and haste; between dispatch and reckless speed.

62. The ICC were unmindful of the fact that the petitioner had to defend himself, which postulates understanding what the complainant's witnesses say, and preparing himself for cross- examining them. He is not, by any means, a lawyer, trained in the art of cross-examination. Rather, he was a novice at it. He would, to effectively defend himself, require consultation back home. This, in turn, would involve hearing them as they deposed and going through their recorded deposition, which would require two or three days' time to prepare himself, depending on the number of witnesses examined on a particular day. The petitioner would also have to analyze the documentary evidence led. The breakneck speed, at which the ICC went, apparently foiled everything for the petitioner in the matter of his effective defence.

63. To add to it are telltale signs of unsavory hurry, which resulted in further denial of opportunity of hearing to the petitioner. We notice that on 30.07.2022, the hearing before the inquiry was adjourned to 01.08.2022 on the petitioner's request, when he needed to take his mother to hospital. On 08.08.2022, the petitioner had to take his mother to the hospital again and, therefore, sought an adjournment until 10.08.2022. This request was rejected by the ICC and the evidence of CW-3 and 4 recorded behind the petitioner's back. On 23.08.2022, the petitioner was indisposed as he had suffered from fever and 44 loose motions. A two days' adjournment was sought by the petitioner. CW-3, who was present for cross-examination, expressed her inability to appear further as she said that she had already appeared twice for the cross-examination. The ICC remarked that the petitioner had failed to cross-examine her. The case was adjourned to 25.08.2022 for recording of defence evidence. The witness, who was crucial for cross-examination, apparently was not called back again, notwithstanding the petitioner's apparent indisposition and the short adjournment that he sought. In this regard, reference may be made to the petitioner's assertions in paragraphs Nos.96, 97, 98 and 99 of the writ petition, where it is averred: “96. That the petitioner had raised an objection that the ICC had conducted ex parte inquiry without any reason or justification on 08.08.2022, 10.08.2022 and 05.09.2022. The ICC in response to the same had opined that the petitioner appeared for the hearing on 10-8-2022 and he was informed about the proceedings of the previous two hearings held on 6-8-2022 and 8-8- 2022. He requested for the copy of the daily order sheets for the same and was informed by the ICC that it would be provided to him along with copies of the depositions of CW-3 and CW-4 at the end of that day's (10-8-2022) hearing. It has further been contended that during the hearing held on 5-8-2022 (Friday), the next hearing of the Inquiry was scheduled on 6-8-2022 (Saturday) at 3:30 PM for the deposition of remaining complainant's witnesses. However, the petitioner requested for an adjournment.

97. That in this regard it is submitted that the ICC has admitted to having received petitioner's request for adjournment of hearing scheduled for 08.08.2022 on 06.08.2022 itself at 11:30 PM i.e. well in advance. ICC has also admitted to having conducting the hearing ex-parte on 08.08.2022 despite having advance information about petitioner's absence on genuine grounds.

98. That no details whatsoever of the alleged "difficulties and circumstances faced by the ICC members in scheduling/ re-scheduling the proceedings as per convenience of all the parties concerned" have been given. In the 45 absence of the any valid reasons, it has to be presumed that ICC went ahead with the proceedings ex-parte only because of its extreme prejudice against the petitioner. There is absolutely no justification for recording even examination-in- chief of complainant's witnesses behind the back of the petitioner.

99. That the ICC's contention that the petitioner was not put to any disadvantage merely because copies of their depositions and opportunity to cross examine them were provided to the petitioner is not tenable because the petitioner had a right to be present during the recording of their examination-in-chief to ensure true and faithful recording of their depositions and to watch their demeanor.”

64. In paragraph No.87 of the counter affidavit filed on behalf of the IIT (respondent Nos.2 to 6), paragraph Nos.96, 97 and 98 of the writ petition have been answered thus: “87 That the contents of paragraphs no. 96, 97 and 98 of the writ petition are not admitted as stated and hence denied. Further, in reply thereto it is submitted that it is to be noted that it was a phase of regular hearing and the adjournments as sought by the delinquent/ petitioner would have caused delay in completion of the proceedings. It was probably for this reason that the ICC was circumspect in granting liberal adjournments of the hearing. However, the notice of each hearing was given to the petitioner well ahead of hearing. If the petitioner opted to stay away from the proceedings for any reason, the ICC cannot be expected to re-schedule its meeting at the convenience of the petitioner. As such, the hearing was conducted as per its schedule and it was the petitioner who opted to stay away from the proceedings of his own volition.”

65. It would be evident, from a reading of paragraph No.87 of the counter affidavit that there is no cogent reason given by the IIT for them being in such an unsavory hurry that would inherently curtail the petitioner's right to a fair hearing. Reference in this connection may be made to the decision of the Supreme Court in Aureliano Fernandes v. State of Goa and others, (2024) 1 SCC 632. In Aureliano Fernandes 46 (supra), the following remarks of the Supreme Court are relevant: “(d) Whirlwind Proceedings

70. On examining the records, it emerges that the point at which the Committee fell into an error was when it attempted to fast forward the entire proceedings after the first few hearings and declined to grant a reasonable time to the appellant to effectively participate in the said proceedings. It is noteworthy that the proceedings of the Committee had commenced on 16- 4-2009 and stood concluded on 5-6-2009. During this period, 18 meetings were conducted by the Committee. Following are the month-wise details of the dates on which the meetings of the Committee were conducted: (i) April 2009 — On 16th, 27th and 29th (ii) May 2009 — On 6th, 12th, 13th, 14th, 19th, 20th, 22nd, 23rd, 25th, 27th, 28th and 29th (iii) June, 2009 — On 3rd, 4th and 5th

71. 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 5- 5-2009, addressed by the Committee to the appellant informing him that the next date for filing his reply and for recording further depositions was 12-6-2009. 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 “12-5-2009” and the date for recording further depositions should be read as “14-5-2009”, 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 20-5-2009, the Committee had written to the appellant giving him a last opportunity to present himself on 20-5- 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 47 and directed him to furnish his reply within 48 hours i.e. by 22-5-2009.

72. Even if this Court was to accept the submission made by the learned counsel for the respondents that the appellant was offering flimsy excuses to somehow prolong the proceedings and the health ground taken by him was not genuine, it does not explain the approach of the Committee which was well aware of the fact that at least six more depositions had been handed over to the appellant as late as on 20-5-2009. Even if he had been hale and hearty, he would still have required a reasonable time to respond to the additional depositions and simultaneously, prepare himself for cross-examining the complainants and completing his deposition. This can only be termed as an unreasonable and unfair direction by the Committee.

73. 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. 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 [Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932] 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.

74. 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 alteram partem could not have been thrown to the winds in this cavalier manner.

66. Like the case in Aureliano Fernandes, the ICC were in 48 no less a hurry, denying the petitioner a reasonable time to effectively defend himself, which we have already remarked about. We, therefore, hold that the petitioner was denied due opportunity of hearing because of the hurried course of proceedings followed by the ICC in this case and the way it went about them, detailed hereinbefore.

67. We do not intend to examine the question of bias that has been canvassed, inferable from the conduct of the ICC members, as that might not be necessary nor desirable. However, the question whether the conduct of proceedings against the petitioner, the way it was done, gives rise to an inference of malice in law, is potent.

68. What constitutes malice in law, fell for consideration of the Supreme Court in Ms X v. Registrar General, High Court of Madhya Pradesh and another, (2022) 14 SCC 187. In Ms X (supra), it was observed by the Supreme Court: “60. We may gainfully refer to the following observations made by this Court in Kalabharati Advertising v. Hemant Vimalnath Narichania [Kalabharati Advertising v. Hemant Vimalnath Narichania, (2010) 9 SCC 437 : (2010) 3 SCC (Civ) 808] : (SCC pp. 448-49, paras 25-26) “25. The State is under obligation to act fairly without ill will or malice — in fact or in law. “Legal malice” or “malice in law” means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for “purposes foreign to those for which it is in law intended”. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the 49 rights of others, which intent is manifested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla [ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521] , S.R. Venkataraman v. Union of India [S.R. Venkataraman v. Union of India, (1979) 2 SCC 491 : 1979 SCC (L&S) 216] , State of A.P. v. Goverdhanlal Pitti [State of A.P. v. Goverdhanlal Pitti, (2003) 4 SCC 739] , BPL Ltd. v. S.P. Gururaja [BPL Ltd. v. S.P. Gururaja, (2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [W.B. SEB v. Dilip Kumar Ray, (2007) 14 SCC 568 : (2009) 1 SCC (L&S) 860] .)

first instance in order to enable that Authority to form an opinion on the complaint and to order an inquiry, if warranted, in the manner envisaged under Rule 14 of the CCS Rules. The 6 petitioner said in his letter that if an inquiry was found fit to be held by the Disciplinary Authority, a proper charge-sheet in the prescribed format had to be issued to the petitioner to enable him to defend properly. This request of the petitioner was also rejected by the Director promptly on the same day, to wit, the 18th of July, 2022.

9. Regular hearing before the ICC commenced on

27.07.2022, where the petitioner alleges breach of such fundamental procedures, which, according to him, violated natural justice and resulted in grave prejudice to his case. According to the petitioner, he was asked to cross-examine the complainant, who had appeared as her own witness as CW-1, without recording her examination-in-chief. The ICC disallowed a large number of questions that the petitioner asked of the complainant as part of the cross-examination. He says that the ICC itself answered for the complainant, completing and improving upon her answers to several questions. The ICC did not ensure that the complainant answered some of the questions that had been allowed to be put to her. The ICC also readily accepted additional documents and a list of new witnesses given by the complainant on 27.07.2022, that were never cited along with the complaint, without asking her the reason for not submitting these documents or citing witnesses before commencement of the inquiry. There is also this case by the petitioner that the ICC carried out a raid on the lab, where the petitioner worked and did an illegal search and seizure on three dates, to wit, 08.08.2022, 10.08.2022 and 05.09.2022 in order to help the complainant produce a document. Proceedings were held ex parte, denying opportunity to the petitioner, when he could not attend due to compelling circumstances. 7

10. It is also said that the petitioner was denied the opportunity to examine one of the complainant's witnesses, namely, CW-3. The ICC is blamed by the petitioner of asking the complainant's witnesses before, during and after their cross-examination numerous questions, purporting to seek clarifications, but in fact, reconciling discrepancies in their depositions and bringing up additional materials and allegations against the petitioner, as he chooses to describe it. It is also pleaded by the petitioner that on 01.08.2022, after the testimony of CW-1 was over, the ICC directed the petitioner to submit his deposition for cross-examination on 04.08.2022. He says that this was the most anomalous procedure to adopt, because the stage for the petitioner's deposition had not yet reached, the complainant's case having just begun. It is also said that after the commencement of regular hearing on

28.07.2022, copies of the daily order-sheet and depositions of witnesses were not supplied to the petitioner. After repeat requests, the ICC supplied a copy each of the daily order-sheet dated 05.08.2022 and the deposition recorded on that date, but copies of order-sheets of previous days and depositions recorded were not supplied. Those were supplied on

16.08.2022, after an undue and unconscionable delay of three weeks, as the petitioner chooses to call it. Again, on one of the dates of the scheduled hearing, that is to say, 23.08.2022, the petitioner was suddenly taken ill. He informed the ICC about his illness and requested adjournment by an email sent at 8.35 a.m. on 23.08.2022. The request for adjournment was rejected and evidence heard ex parte on 23.08.2022. The ICC went on further to commence hearing the defence evidence in the petitioner's absence on 23.08.2022 and before closure of the complainant’s case. 8

11. It is also the petitioner's case that when he submitted the list of documents required to be produced in his defence, the ICC orally directed him to indicate the relevance of each of those documents. It is for the said reason that the petitioner submitted a letter dated 27.08.2022 to the ICC, indicating the relevance of documents. The petitioner also complains that the ICC failed and avoided to summon documents that the petitioner sought, despite repeated requests and reminders.

12. The prayer was considered only on the last date of hearing i.e. 14.09.2022 and on that day, the ICC declined to summon 10 out of the 11 documents the petitioner desired to produce. The inquiry was then closed without production of the solitary document that the ICC permitted on the petitioner's behalf, crippling his defence, as the petitioner says. It is then the petitioner's case that of the 24 witnesses who were produced on his behalf as RW-1 to RW-24, he was not permitted to lead evidence. The ICC did not permit the petitioner to do the examination-in-chief of his witnesses. Instead, the ICC examined all the 24 witnesses themselves, recording those statements as their examination-in-chief. The petitioner's witnesses were then cross-examined, not only by the complainant, but also the ICC. It is, therefore, the petitioner's case that the ICC proceeded in violation of principles of natural justice, denying him a fair hearing, and acted with bias and mala fides in the conduct of the inquiry. They dealt with the inquiry in an arbitrary fashion in order to give undue advantage to the complainant and utterly prejudiced the petitioner's defence. There are many more details of violations of the same genre, where the petitioner calls natural justice a causality, resulting in prejudice to him. These would be noticed later in this judgment. 9

13. The petitioner has particularly pleaded a case that the IIT had no jurisdiction to frame the IITK Rules under the PoSH Act in view of the provisions of Section 11(1) thereof. According to the petitioner, an inquiry into a complaint under the PoSH Act can be made in accordance with the provisions of the service rules applicable to the employer, and where no such rules have been framed, it is to be done in the manner prescribed. The ‘manner prescribed’ is defined under Section 2(k) of the PoSH Act to mean prescribed by rules made under the last mentioned Act. The power to make rules under the PoSH Act vests in the Central Government, which is to be done by that Government by a notification in the official gazette. The Central Government has made rules under the PoSH Act, in exercise of their powers under Section 29, that is to say, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (for short, 'the PoSH Rules'). Therefore, inquiry into a complaint under the PoSH Act can either be held according to the service rules applicable to the employer’s establishment, and where no such rules exist, in accordance with the PoSH Rules. There is no jurisdiction with the employer to frame rules under the PoSH Act to hold an inquiry into a complaint under the said statute. It is, therefore, urged on behalf of the petitioner that the inquiry held in the petitioner’s case in accordance with the IITK Rules, which have been made by the IIT under the PoSH Act, is ultra vires the Act last mentioned, rendering the proceedings void.

14. The petitioner submitted his written brief of defence on

26.09.2022. The petitioner received a memo dated 01.11.2022, with the Director of the IIT forwarding a copy of the ICC's report dated 30.09.2022. The petitioner was directed to submit his representation against the said report, if any, by 16.11.2022. 10 The petitioner submitted a detailed representation dated

16.11.2022 against the report of the ICC, followed by a further letter dated 30.11.2022. He then received a memo dated

22.12.2022 from the Director of the IIT, saying that the Board of Governors of the IIT in their 251st Meeting held on 11.12.2022, had carefully considered the inquiry report and the petitioner's representations dated 04.11.2022, 08.11.2022 and 16.11.2022, along with another representation dated 30.11.2022, and after due deliberations, unanimously decided to reject the representations and accept the inquiry report submitted by the ICC.

15. It was also noticed in the memo dated 22.12.2022 that the petitioner had earlier been held guilty of sexually harassing another student working under his supervision, where the Board of Governors, in their 242nd Meeting held on 03.09.2021, had resolved to impose the penalty of withholding increments with cumulative effect for three years and that the said order of punishment was still in force. The memo under reference went on to say that considering the petitioner's previous misconduct as well as the one now arising, the Board, after extensive deliberations, had come to the conclusion that he was not a fit person to be retained in service of the IIT. The Board had, therefore, proposed to award the penalty of compulsory retirement in terms of Statute 13(9)(b)(b)(v) of the Statutes of the IIT. The Board had, accordingly, directed the issue of a show cause notice to the petitioner, seeking his clarification/ representation within 15 days as to why the penalty proposed be not awarded. The matter was directed to come up before the Board for a final decision along with the petitioner's representation, if any. The petitioner was, therefore, called upon to submit a representation against the penalty proposed to be awarded to him. 11

16. The petitioner instituted Writ-A No.121 of 2023, challenging the inquiry report dated 30.09.2022, the resolution of the Board of Governors of the IIT dated 27.10.2022, the memorandum dated 01.11.2022, the resolution of the Board of Governors dated 11.12.2022 and the memorandum dated

22.12.2022. The aforesaid writ petition was dismissed as withdrawn with liberty to file a fresh petition on 01.02.2023. The petitioner then submitted representations, numbering four, against the memorandum dated 22.12.2022, issuing him a show cause notice against the proposed penalty. These four representations were dated 4th, 5th, 6th and 7th January, 2023. In addition to these representations against the show cause dated

22.12.2022, the petitioner lodged an appeal under Rule 45 of the IITK Rules on 29.01.2023, challenging the inquiry report dated 30.09.2022 submitted by the ICC. In this appeal, the report was questioned on jurisdictional errors as well as the merits of the findings.

17. The Board of Governors, by their resolution dated

22.02.2023, which is quite eloquent, rejected the petitioner's appeal under Rule 45 in the first part, and in the second, his representations – all four against the show cause notice dated

22.12.2022, and punished the petitioner with an order for compulsory retirement from service. In accordance with the resolution of the Board of Governors dated 22.02.2023, the Director of the IIT issued an office order dated 01.03.2023, formally notifying the decision of the Board, punishing the petitioner with compulsory retirement, with effect from the date of the Director's order.

18. Aggrieved by the resolution of the Board of Governors of 12 the IIT dated 22.02.2023 and the order of the Director, notifying it dated 01.03.2023, the petitioner has instituted the present petition under Article 226 of the Constitution.

19. A counter affidavit has been filed on behalf of respondent Nos.2 to 6, and another, on behalf of respondent No.7. A rejoinder has been filed by the petitioner in reply to the counter on behalf of respondent Nos.2 to 6 and one separately to the counter affidavit on behalf of respondent No.7. In addition, there are supplementary counter affidavits dated 09.11.2023,

22.11.2023 and 28.07.2024, all filed on behalf of respondent Nos.2 to 6.

20. In the counter affidavit filed on behalf of respondent Nos.2 to 6, it is pleaded that the PoSH Rules have been approved by the Board of Governors of the IIT in exercise of their powers under Section 13(1) of the Institutes of Technology Act, 1961 (for short, ‘the Act of 1961’). These Rules were necessitated in view of the provisions of Section 11(1) of the PoSH Act. The CCS Rules, according to the respondents, are not applicable to the IIT, nor is there any provision under the Act of 1961 or the Statutes of the IIT, providing for the procedure and the manner of holding an inquiry into a complaint of sexual harassment. There are then pleadings to show that natural justice has been adhered to at various stages, consistent with the IITK Rules and the sensitive nature of the inquiry, where the rights of a woman, complaining of sexual harassment, were involved. It is emphasized that the procedure to hold an inquiry under the IITK Rules is flexible. It has been pleaded that the petitioner, by raising technical objections, wanted to procrastinate proceedings and violate the time limit of 90 days to complete an inquiry mandated by Section 11(4) of the PoSH Act. 13

21. The allegations of bias against the ICC have also been repelled, saying that it was a multi-membered body, drawing its members from different departments. The petitioner’s conduct was found blameworthy and his defence unsubstantiated by the ICC upon a consideration of evidence. The findings of the ICC, after due opportunity to the petitioner, have been accepted by the Board of Governors of the IIT. The question of quantum of punishment to be meted out to the petitioner too was carefully considered by the Board of Governors before the impugned order was passed.

22. The petitioner’s appeal under Rule 45 of the IITK Rules was duly considered and disposed of. It is highlighted that an appeal from the findings of the ICC to the Disciplinary Authority, that is to say, the Board of Governors, is a unique feature of the IITK Rules with no pari materia provisions in the PoSH Rules framed under the PoSH Act or the CCS Rules. The petitioner, therefore, had all protection in the matter of defending himself under the PoSH Rules, which he availed. It had been pleaded more than once that the CCS Rules do not apply to the IIT at all and the Board of Governors of the IIT are empowered under Section 13(1) of the Act of 1961 to make rules for proper and smooth functioning of the institution.

23. It must be recorded here that from a clarification matter arising out of Writ-A No.4878 of 2021, which pertains to an earlier proceeding against the petitioner with regard to sexual harassment, an order dated 25.04.2023 was passed by the learned Single Judge, post judgment. The order of the learned Single Judge dated 25.05.2023, passed on the clarification application in the writ petition aforesaid, was challenged in Special Appeal No.338 of 2023, where the Division Bench set aside the order passed by the learned Single Judge. The 14 petitioner moved the Supreme Court by a petition for Special Leave to Appeal No.14058 of 2023, wherein, their Lordships issued notice and ordered that until the next date of hearing, the petitioner shall not be evicted from the residential premises in his occupation. Later on, while hearing Special Leave Petition No.14058 of 2023, the following order was passed by the Supreme Court on 11.09.2023: “After hearing learned counsel for the parties, we find that the interim order dated 25.04.2023 passed in Writ Application No. 4878 of 2021 was challenged in Special Appeal No. 338 of 2023 wherein the impugned order dated 25.05.2023 has been passed allowing the said appeal. The Division Bench set aside the order dated 25.04.2023 of learned Single Judge passed on Modification Application – I.A.No. 7 of 2023. During hearing, it is conceded before us that the present Special Leave Petition is arising out of an interim proceedings, however, maintaining the interim order passed by this Court on 10.07.2023, the Writ Court may be requested to decide the Writ Petition No. 4492 of 2023 on its own merits, uninfluenced by the observations made in the impugned order dated 25.05.2023 and the order passed by the learned Single Judge on 25.04.2023. We find substance in the submissions jointly made by the parties. Accordingly, we defer hearing of this Special Leave Petition and request the High Court to decide the Writ Petition No. 4492 of 2023 as expeditiously as possible, uninfluenced by the observations made in the impugned order dated 25.05.2023 and the order dated 25.04.2023 passed by the learned Single judge. We further request the High Court to decide the said Writ Petition within a period of three months from the date of production of a copy of this order as far as possible. Re-list this Special Leave Petition in the month of February, 2024.”

24. This Court must notice that so far as this petition is concerned, the proceedings of the present matter have been expedited by the Supreme Court with the clarification that we would not take into account the orders passed by the learned Single Judge and the Division Bench in Writ-A No.4878 of 2021 and Special Appeal No.338 of 2023, respectively. We have, therefore, proceeded accordingly in this matter.

25. Heard Mr. Avneesh Tripathi, learned Counsel for the petitioner, Mr. Manish Goyal, learned Senior Advocate, assisted by Mr. Rohan Gupta, learned Counsel appearing on behalf of respondent Nos. 2 to 6 and Mr. Ashok Kumar Srivastava, learned Counsel appearing for respondent No. 7. 15

26. This Court must remark that the hearing in this matter ran into minute details and most of the time, learned Counsel for both sides attempted to charm this Court into entering the arena of appreciating the evidence of parties for and against the charge dealt with by the ICC and the Disciplinary Authority. Bearing in mind our limitations in a writ petition, we cannot arrogate to ourselves the powers of a first appellate Court, as if it were.

27. Broadly, there are two issues, amongst the many vociferously canvassed before us, that can legitimately be examined in the present writ petition. The first is: Whether the IIT was empowered to frame the IITK Rules under the PoSH Act? A corollary of this issue is: If the IIT did not have powers under the PoSH Act to make Rules, would the resultant inquiry under those rules be vitiated? The other substantial issue is: Whether the inquiry held was one in breach of principles of natural justice and the salutary procedure to hold an inquiry into misconduct involving the imposition of a major penalty?

28. So far as the first issue is concerned, there is little doubt that the inquiry here is one under the PoSH Act. Section 11 of the PoSH Act reads: “11. Inquiry into complaint.—(1) Subject to the provisions of Section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under Section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable: Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of Section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall 16 proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police: Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee. (2) Notwithstanding anything contained in Section 509 of the Indian Penal Code (45 of 1860), the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of Section 15. (3) For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely— (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; and (c) any other matter which may be prescribed. (4) The inquiry under sub-section (1) shall be completed within a period of ninety days.”

29. Section 11 (1) is relevant to the first issue. A bare reading of the statute would show that an ICC, where the respondent (delinquent) is an employee, is obliged to inquire into the complaint in accordance with the service rules applicable to the employer’s establishment and in the contingency, where no such rules exist, the Internal Committee must proceed in such manner as prescribed. Section 2(k) defines “prescribed’” in the following terms: “2. Definitions.—In this Act, unless the context otherwise requires,— (k) “prescribed” means prescribed by rules made under this Act;”

30. The power to make rules under the PoSH Act is provided under Section 29 thereof. Section 29 of the PoSH Act reads: “29. Power of appropriate Government to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely— 17 (a) the fees or allowances to be paid to the Members under sub-section (4) of Section 4; (b) nomination of members under clause (c) of sub-section (1) of Section 7; (c) the fees or allowances to be paid to the Chairperson, and Members under sub-section (4) of Section 7; (d) the person who may make complaint under sub-section (2) of Section 9; (e) the manner of inquiry under sub-section (1) of Section 11; (f) the powers for making inquiry under clause (c) of sub-section (2) of Section 11; (g) the relief to be recommended under clause (c) of sub-section (1) of Section 12; (h) the manner of action to be taken under clause (i) of sub-section (3) of Section 13; (i) the manner of action to be taken under sub-sections (1) and (2) of Section 14; (j) the manner of action to be taken under Section 17; (k) the manner of appeal under sub-section (1) of Section 18; (l) the manner of organising workshops, awareness programmes for sensitising the employees and orientation programmes for the members of the Internal Committee under clause (c) of Section 19; and (m) the form and time for preparation of annual report by Internal Committee and the Local Committee under sub-section (1) of Section 21. (3) Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. (4) Any rule made under sub-section (4) of Section 8 by the State Government shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.”

31. The submission of the petitioner on the applicability of the IITK Rules is firstly premised on ground that there are service rules applicable to the respondent’s establishment and these are the CCS Rules. The learned Counsel for the respondent IIT, on the other hand, has urged that the CCS Rules do not apply to the IIT, inasmuch as the IIT is governed by the Act of 1961, 18 the Statutes framed thereunder, besides the rules and regulations made by the Statutory Authorities of the IIT. The learned Counsel for the petitioner, during the course of his submissions, said that a number of inquiries under the PoSH Act, that were held earlier against various employees, were conducted according to the provisions of the CCS Rules. It is pointed out by the learned Counsel for the petitioner that an earlier inquiry under the PoSH Act held against the petitioner was undertaken in accordance with the CCS Rules. It is urged that these apply because no service rules, governing the holding of disciplinary proceedings, have been framed by the IIT.

32. The further submission is that since the CCS Rules would apply to the holding of an inquiry under the PoSH Act, the formality of procedure under Rule 14 of those Rules has to be observed. It is also emphasized that under the CCS Rules, a charge-sheet has to be issued, reducing the allegations against a delinquent into a definitive Article of charges, along with the imputations of misconduct. The list of documents and witnesses in support of each charge too has to be supplied to the delinquent. In this case, nothing of this kind has been done and the allegations in the complaint, which are interlapping and vague, have been determined by the ICC following a procedure not authorized by the law. It has resulted in prejudice to the petitioner as well. So far as this part of the petitioner’s submission is concerned, we are afraid that it cannot be accepted. The reason is that the IIT functions under the Act of 1961 and the CCS Rules, that apply to a government servant, as defined under Rule 2(h) thereof, would not apply proprio vigore. Rule 2(h) of the CCS Rules reads: “2. Interpretation.– In these rules, unless the context otherwise requires, - 19 (h) "Government servant' means a person who - (I) is a member of a Service or holds a civil post under the Union, and includes any such person on foreign service or whose services are temporarily placed at the disposal of a State Government, or a local or other authority; ii) is a member of a Service or holds a civil post under a State Government and whose services are temporarily placed at the disposal of the Central Government; iii) is in the service of a local or other authority and whose services are temporarily placed at the disposal of the Central Government;”

33. The petitioner, who is an employee of the IIT, governed by the Act of 1961, is, by no stretch of imagination, a government servant within the meaning of the CCS Rules. Merely because in the past or intermittently, there have been instances where the IIT have followed or applied the provisions of the CCS Rules to conduct disciplinary proceedings, or for that matter, even inquiries under the PoSH Act, would not make the CCS Rules applicable to the IIT or entitle its employees to claim that these apply.

34. The learned Senior Advocate for the respondent-IIT has said that in the earlier inquiry under the PoSH Act, which was undertaken against the petitioner, though done under the CCS Rules, the resort to those rules was at a time when the IITK Rules were not made and enforced. We do not wish to countenance or endorse in any manner the course of action hitherto adopted by the IIT in holding inquiries under the PoSH Act, or otherwise in accordance with the CCS Rules. We do not wish to comment on that issue at all because it is not necessary to do so. All that is relevant, in our opinion, is that the CCS Rules do not apply proprio vigore to a disciplinary proceeding held by the IIT or one under the PoSH Act. The Act of 1961 is a self-contained enactment providing for the establishment of the Institutes of Technology, including the IIT. Section 13(1) of the Act of 1961 confers residual powers on the Board of Governors, 20 as defined under Section 3(a) of the said Act to exercise all powers of the IIT, not otherwise provided for by the Act of 1961. The Board of Governors also have the power to make statutes and ordinances. Apparently, they also have the power to make rules. The power to make rules includes the power to make service rules for their employees.

35. What is not in dispute here is that the IIT, or so to speak, the Board of Governors of the IIT, have not framed or made any service rules for its teachers and employees. They have, in the past held disciplinary inquiries or those under the PoSH Act, drawing upon the provisions of the CCS Rules. May be, that course of action in the past has not been frowned upon by Courts or held invalid, but that does not make the CCS Rules applicable to the IIT proprio vigore, as already said. Also, the fact remains that no service rules have been framed or made by the IIT, in accordance with which, disciplinary proceedings against employees and teachers may be conducted. The question that then falls for consideration is: If in the absence of a charter of service rules made by the IIT in exercise of their powers under the Act or the Statutes, providing for the holding of disciplinary proceedings generally, can the IIT specifically make rules for the conduct of inquiries under the PoSH Act? We do not think so. While it is true that the IIT have all powers, including residual powers, enabling them in this behalf to make rules governing the holding of disciplinary proceedings against their employees and teachers under Section 13(1) of the Act of 1961, the said power would not be available to frame rules only for the purpose of holding an inquiry under the PoSH Act.

36. It is quite another matter that if the IIT, in the exercise of their powers under the Act, make service rules, or particularly rules dealing with the conduct of disciplinary proceedings 21 against their teachers and other employees, and as part of those rules, also provide for inquiry into charges of sexual harassment etc., an inquiry under the PoSH Act may be held in accordance with such rules. But, unless there are duly framed rules generally applicable to the IIT providing for the holding of disciplinary proceedings against their employees and teachers, they would have no power to frame rules to conduct inquiries under the PoSH Act alone. This is the irresistible conclusion that can be drawn from a bare reading of Section 11 of the PoSH Act. Section 11(1) envisages that an internal committee probing a complaint against an employee, called a respondent there, may make the inquiry in accordance with the provisions of service rules applicable to that employee or respondent, and then provides that if no such rules exist, in such manner as may be prescribed. The PoSH Act is a special Act and though not given overriding effect over other laws, is nevertheless a special Statute. It caters to a particular purpose and designed to curtail an emergent mischief in society. It is a legislation, primarily moved by judicial intervention in the much celebrated Vishaka and others v. State of Rajasthan and others, (1997) 6 SCC

241. Eschewing a chronological and searching perspective into the background that led to enactment of the PoSH Act, suffice it to say that it was enacted to promote security and gender equality for women in workplace, a phenomenon, need and necessity, that was the fallout of more women coming out to join all kinds of professions, jobs and callings, and work shoulder to shoulder with men.

37. Now, Section 28 of the PoSH Act provides: “28. Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.” 22

38. All that Section 28 means is that where any other statute or provision is made to safeguard the interest of women, that statute would not stand ousted from the field by the PoSH Act. But, this does not mean that anything provided by the PoSH Act to be done in a particular manner can be done in any other. Section 11(1) of the PoSH Act, as already said, envisages two situations for an establishment, where an employee working is complained of for sexual harassment etc. by a co-employee. The first is where service rules governing the holding of disciplinary proceedings made in exercise of their statutory powers by the establishment, already exist, and, the other, where no such service rules exist. If no service rules generally dealing with disciplinary proceedings exist in the establishment, the employer would have no jurisdiction under the PoSH Act to frame rules for the purpose. The Rules that would be attracted to a case of the latter kind would be rules made in the manner prescribed. Those rules are ones made in accordance with Section 29 of the PoSH Act by the Central Government. The PoSH Rules are already there, framed under the PoSH Act. Since we have already held on the basis of the material on record and the stand of parties that there are no service rules framed by the IIT, generally applicable to their employees and teachers in the matter of holding disciplinary proceedings, the IIT would not have the competence to make rules for dealing with complaints under the PoSH Act. That power, in the absence of existing service rules in the establishment, would vest in the Central Government and the rules made by them alone would apply.

39. It is next submitted by Mr. Manish Goyal that the IITK Rules have been made by the IIT in aid of the PoSH Act and the PoSH Rules; not contrary to them. These are rules adopted 23 and modified to suit the organizational structure of the IIT. The IITK Rules were notified and circulated to all concerned vide notification dated 01.12.2023, with no objection from anyone, including the petitioner. It is also urged that an inquiry done under the rules, like the one under consideration here, causes no prejudice to the petitioner, if one were to compare the procedure envisaged under the PoSH Rules and that under the IITK Rules. So far as the first part of these submissions goes, we do not think that the IITK Rules, which have been avowedly made for the purpose of providing for the manner of holding inquiries under the PoSH Act, can be regarded as “the service rules applicable to the respondent”, envisaged under sub- Section (1) of Section 11 of the Act, last mentioned. The words “service rules” are words of wider import and generic connotation, signifying a reference to rules governing service conditions or matters relating to service in an establishment. It cannot be regarded to mean rules made by an employer for the purpose of inquiry into complaints under the PoSH Act alone. To construe the words “service rules applicable to the respondents”, occurring in sub-Section (2) of Section 11 also as rules essentially framed to inquire into complaints under the PoSH Act, would be doing violence to the unequivocal intendment of the statute.

40. Therefore, to suggest that the PoSH Rules, purporting to be made by the IIT in the exercise of their powers under Section 13(1) of the Act of 1961 should be regarded as “service rules applicable to the respondent”, as envisaged under sub- Section (1) of Section 11 of the PoSH Act, is a proposition difficult to accept. While it is true that if there were existing services rules applicable to the establishment, generally dealing with service matters of employees and teachers of the IIT in this 24 case, a complaint under the PoSH Act could very well be dealt with under those rules. But, it is clearly beyond the competence of the IIT, like any other establishment or employer, specifically to make rules under the PoSH Act in the exercise of their powers of rule-making, that do not generally qualify as service rules. The Rules under the PoSH Act, where there are no existing service rules generally applicable to the service conditions of employees of an establishment, can only be made in the manner prescribed, that is to say, by the Central Government. The inescapable conclusion, therefore, is that the IITK Rules made by the IIT are ultra vires the provisions of Section 11(1) of the PoSH Act.

41. So far as the issue of the IITK Rules being notified and circulated to all concerned vide notification dated 01.12.2023 with no objection from any quarter, including the petitioner, is concerned, there cannot be any acquiescence or estoppel in the matter. If the rules are beyond the competence of the IIT to make under Section 11(1) of the PoSH Act, as already held, a non-protest or even express acceptance thereof by the employees, including the petitioner, cannot validate the rules or imbue them with life. After all, the power to make rules under an Act is a matter of legislative competence and if the Authority making the rules has not been given the power to make rules, no amount of acceptance, acquiescence or an act of estoppel would avail the respondents.

42. So far as the last limb of the submissions advanced by Mr. Goyal is concerned, for a first, it must be remarked that it is a salutary principle of the law that where a statute prescribes a particular thing to be done in a particular manner, it must be done in that manner alone or not at all. The inquiry here is not on a charge of misconduct, arising out of sexual harassment, 25 generally under the service rules, if any, applicable to the IIT. It is an inquiry under the PoSH Act, a special statute. That statute directs the inquiry to be undertaken under Section 11(1) and its various other provisions in a particular manner. We have found, on an analysis of the matter, that in the present case, it was incumbent for the IIT to have followed the procedure envisaged under the PoSH Rules, framed under the PoSH Act. The inquiry, therefore, had to be held in the manner prescribed, that is to say, under the PoSH Rules and in no other manner. Therefore, in the background of the special statute and its provisions, the way they apply to the IIT, the question of prejudice may not be very relevant. After all, the IIT under the PoSH Act are obliged to follow the rules framed under the Act last mentioned, if they are to hold an employee or a teacher, like the petitioner, guilty under the provisions of the said Act. They could not have followed or applied any other kind of rules to the proceedings.

43. Assuming that the question of prejudice is still relevant, we proceed to examine the said issue. In support of this submission of his, Mr. Goyal has urged that invalidation of proceedings, inquiring into sexual misconduct, based on a hyper-technical interpretation of the applicable service rules should be eschewed. In aid of his submission on the point, Mr. Goyal has placed reliance upon the decision of the Supreme Court in Union of India and others v. Mudrika Singh, (2022) 16 SCC 456. He has particularly drawn our attention to paragraph Nos.38, 39, 41, 42, 44 and 45 of the report, which read: “38. Accordingly, on an analysis of the scope and statutory purpose of the Army Act, 1950, the Constitution Bench in S.N. Mukherjee [S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 : 1990 SCC (Cri) 26 669 : 1991 SCC (L&S) 242] concluded that there was no requirement of furnishing reasons.

39. After adverting to the principles enunciated by the Constitution Bench in S.N. Mukherjee [S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC (L&S) 242] and Som Datt Datta [Som Datt Datta v. Union of India, 1968 SCC OnLine SC 73 : AIR 1969 SC 414] , this Court in Dinesh Kumar [Union of India v. Dinesh Kumar, (2010) 3 SCC 161 : (2010) 1 SCC (L&S) 1135] in the context of Rule 149 of the BSF Rules, 1969, held : (Dinesh Kumar case [Union of India v. Dinesh Kumar, (2010) 3 SCC 161 : (2010) 1 SCC (L&S) 1135] , SCC pp. 168-69, para 23) “23 [Ed. : Para 23 corrected vide Official Corrigendum No. F.3/Ed.B.J./46/2010 dated 7-4- 2010.] . In this backdrop, it is clear that the provisions for the SSFC and the appellate authority are pari materia, more particularly in case of Rule 149 and Section 117(2) of the Act, with the provisions which were considered in both the above authorities. Therefore, there cannot be any escape from the conclusion that as held by the Constitution Bench, the reasons would not be required to be given by the SSFC under Rule 149 or by the appellate authority under Section 117(2) of the Act. This position is all the more obtained in case of SSFC, particularly, as the legislature has chosen not to amend Rule 149, though it has specifically amended Rule 99 w.e.f. 9-7-2003. It was pointed out that in spite of this, some other view was taken by the Delhi High Court in Nirmal Lakra v. Union of India [Nirmal Lakra v. Union of India, 2002 SCC OnLine Del 1134 : (2003) 102 DLT 415] . However, it need not detain us, since Rule 149 did not fall for consideration in that case. Even otherwise, we would be bound by law declared by the Constitution Bench in S.N. Mukherjee v. Union of India [S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC (L&S) 242] .” (emphasis supplied)

41. In the above circumstances, the High Court was in error on both the grounds which have weighed in its ultimate decision. There was no error of jurisdiction on the part of the Commandant in seeking clarification in regard to the date of the incident by calling for an additional RoE. As we have noted, the respondent was not prejudiced since he understood the allegations against him as pertaining to the events which transpired on the night when he was on duty, intervening 16-4-2006 and 17-4-2006, and more specifically in the early hours of 17-4-2006.

42. On the second aspect, the decision of the High Court has failed to notice the judgment of this Court in Dinesh Kumar [Union of India v. Dinesh Kumar, 27 (2010) 3 SCC 161 : (2010) 1 SCC (L&S) 1135] [which in turn is based on para 40 of the principles enunciated by the Constitution Bench in S.N. Mukherjee [S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC (L&S) 242] ]. The charge against the respondent was found to have been duly substantiated by evidence on the record. While dealing with the respondent's statutory petition under Section 117, the Director General of BSF, reduced the quantum of sentence. He was empowered to do so in accordance with the provisions of Section 48 of the BSF Act, 1968.

44. Before we conclude our analysis, we would also like to highlight a rising trend of invalidation of proceedings inquiring into sexual misconduct, on hypertechnical interpretations of the applicable service rules. For instance, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 penalises several misconducts of a sexual nature and imposes a mandate on all public and private organisations to create adequate mechanisms for redressal. However, the existence of transformative legislation may not come to the aid of persons aggrieved of sexual harassment if the appellate mechanisms turn the process into a punishment. It is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution. It is also important to be mindful of the power dynamics that are mired in sexual harassment at the workplace. There are several considerations and deterrents that a subordinate aggrieved of sexual harassment has to face when they consider reporting sexual misconduct of their superior.

45. In the present case, the complainant was a constable complaining against the respondent who was the head constable — his superior. Without commenting on the merits of the case, it is evident that the discrepancy regarding the date of occurrence was of a minor nature since the event occurred soon after midnight and on the next day. Deeming such a trivial aspect to be of monumental relevance, while invalidating the entirety of the disciplinary proceedings against the respondent and reinstating him to his position renders the complainant's remedy at naught. The history of legal proceedings such as these is a major factor that contributes to the deterrence that civil and criminal mechanisms pose to persons aggrieved of sexual harassment. The High Court, in this case, was not only incorrect in its interpretation of the jurisdiction of the Commandant and the obligation of the SSFC to furnish reasons under the BSF Act, 1968 and Rules therein, but also demonstrated a callous attitude to the gravamen of the proceedings. We implore courts to interpret service rules and statutory regulations governing the prevention of sexual harassment at the workplace in a 28 manner that metes out procedural and substantive justice to all the parties.”

44. The facts giving rise to the issue involved in Mudrika Singh (supra) can best be recapitulated from the succinct description of these in the report of their Lordships’ judgment. These read: “1. The Union of India and officials of the Border Security Force (“BSF”) are in appeal against a judgment of a Division Bench of the Calcutta High Court dated 18-12-2018 [Union of India v. Mudrika Singh, 2018 SCC OnLine Cal 16862] which quashed disciplinary proceedings against the respondent and reinstated him to his initial position in the BSF.

2. In April 2006, at the time of the alleged misconduct, the respondent was a Head Constable in the BSF and was deployed to the Seventy-second Battalion. On 2-5-2006, the Commandant directed the Deputy Commandant to prepare a record of evidence (“RoE”) against the respondent for an offence constituting “disgraceful conduct” under Section 24(a) of the Border Security Force Act, 1968 (“the BSF Act, 1968”). The specific allegation, as set out in the order, was as follows: “DISGRACEFUL CONDUCT OF AN UNNATURAL KIND In that he, between 0200 hrs to 0600 hrs on 16-4- 2006 while on Naka duty under BOP Sahab Khan committed sodomy on the person of No. [xyz] Const [xyz] of the sam(e) Battalion.”

3. The incident in question is alleged to have taken place on the night intervening 16-4-2006 and 17-4- 2006. The complainant, a Constable in the BSF, was on Naka duty between 0200 to 0600 hrs when the respondent is alleged to have committed an act of sexual assault on him. The complainant submitted a written complaint on 19-4-2006. Under the BSF Act, 1968, such conduct is liable to be prosecuted under Section 24(a) which reads as follows: “24. Certain forms of disgraceful conduct.—Any person subject to this Act who commits any of the following offences, that is to say— (a) is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind; or (b)-(c)*** shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.” 29

4. The RoE was prepared by the Deputy Commandant and submitted to the Commandant. On 10-6-2006, the Commandant noted that on a scrutiny of the RoE proceedings, it was found that there was an inconsistency in the statements of the witnesses as regards the date on which the incident had occurred. Hence, on 10-6-2006, the Commandant called for the preparation of an additional RoE. Following the receipt of the additional RoE, the Commandant issued an order to convene a Summary Security Force Court (“SSFC”) to try the respondent. In the course of the evidence which was recorded pursuant to the direction of the Commandant seeking an additional RoE, the complainant stated that the incident took place on 17-4-2006. The respondent was provided with copies of the RoE, additional RoE and the charge-sheet on 3-8- 2006.

5. On 7-8-2006, the SSFC convened at the Headquarters of the Seventy-second Battalion of the BSF, at Narayanpur, Malda (West Bengal) for enquiring into the charge under Section 24(a) of the BSF Act, 1968. The respondent pleaded not guilty to the charge. Four prosecution witnesses were examined and the respondent was furnished with an opportunity to cross-examine them and to call for defence witnesses. The SSFC found the respondent guilty of the charge and demoted him to the rank of a Constable as a punishment.

6. On 6-9-2006, the respondent filed a statutory petition under Section 117 [ “117. Remedy against order, finding or sentence of Security Force Court.— (1) Any person subject to this Act who considers himself aggrieved by any order passed by any Security Force Court may present a petition to the officer or authority empowered to confirm any finding or sentence of such Security Force Court, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.(2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any Security Force Court which has been confirmed, may present a petition to the Central Government, the Director General, or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the Director General, or the prescribed officer, as the case may be, may pass such order thereon as it or he thinks fit.”] of the BSF Act, 1968 before the Director General of the BSF to challenge the conviction recorded by the SSFC on 7-8-2006. The statutory petition was heard by the appellate authority—the Director General of BSF and was disposed of by an order dated 18-10-2006. While the charge against the respondent was found to have been established, the punishment of reduction to the rank of Constable was commuted, having regard to the fact that the respondent had over 22 years of unblemished 30 service with 21 rewards to his credit. The respondent was informed that the Director General of the BSF had commuted the sentence of reduction to the rank of Constable by substituting it with the following: “(i) ‘To forfeit 5 years services for the purpose of promotion’; (ii) ‘To forfeit 7 years past service for the purpose of pension’; and (iii) ‘To be severely reprimanded’.”

7. The respondent moved the High Court of Calcutta under Article 226 of the Constitution. A Single Judge of the High Court, by an order dated 7-5-2009 [Mudrika Singh v. Union of India, 2009 SCC OnLine Cal 1079] , set aside the order of punishment on the ground that: (i) The original RoE was insufficient to prove the charge; and (ii) The order of the Commandant for preparing an additional RoE was beyond jurisdiction.

8. The judgment [Mudrika Singh v. Union of India, 2009 SCC OnLine Cal 1079] of the Single Judge has been upheld by the impugned judgment of the Division Bench of the High Court on 18-12-2018 [Union of India v. Mudrika Singh, 2018 SCC OnLine Cal 16862] on the ground that: (i) The Commandant did not have jurisdiction to direct the preparation of an additional RoE under Rule 51 of the Border Security Force Rules, 1969 (“the BSF Rules, 1969”) as it stood at the relevant time; and (ii) No reasons were furnished by the SSFC or the appellate authority—Director General of BSF—for holding the respondent guilty.”

45. On the submissions of parties, the questions that arose for consideration before their Lordships are detailed in the report thus: “12. Essentially, down to its core, the controversy in the present case turns upon two aspects : firstly, whether the Commandant prior to the amendment of Rule 51 in 2011 had jurisdiction to direct the preparation of an additional RoE; and secondly, whether the finding of guilt which has been recorded by the SSFC stands vitiated in the absence of reasons. Now, before we analyse the first of the above two facets, it becomes necessary to understand the circumstances in which the Commandant directed the Assistant Commandant to prepare an additional RoE on 10-6- 2006.” 31

46. In answering the questions involved, their Lordships were of opinion that the amendment to Rule 51 of the BSF Rules, 1969 was clarificatory in nature and the Commandant always had the power to direct under the unamended BSF Rules, 1969, the preparation of an additional RoE or abstract of evidence. This power was inferred by their Lordships as one implicit in Rules 48 and 51 read with Rule 6 of the BSF Rules, 1969 as these stood before the amendment. The amendment to the BSF Rules, 1969 made after the offence was regarded as clarificatory and, therefore, retrospective.

47. So far as the other issue, which fell for consideration of their Lordships in Mudrika Singh, the holding was that going by consistent authority and on the terms of the statute involved, a Summary Security Force Court was not required to give reasons for the punishment awarded, though a General Security Force Court and a Petty Security Force Court were so obliged. It is on the foot of the said conclusions that the remarks of their Lordships, particularly in paragraph Nos.44 and 45 of the report, are based. Also, the remarks in paragraph Nos.44 and 45 have to be understood in the background of the fact that what was discrepant between the RoE, initially drawn up, and that done as the additional RoE was the date of the incident alone. The discrepancy was if the incident occurred on the 16th of April, 2006 or the 17th. It had happened in the night intervening 16th/ 17th April. In the RoE, there was a discrepancy in the statement of witnesses as regards the date of the incident leading the Commandant to direct an additional RoE. The additional RoE clarified the fact that the incident happened in the night intervening 16th / 17th of April, 2006, or to be more specific, as it appears, in the wee hours of the 17 th of April. Their Lordships noticed that this was a position, which the 32 charged employee confirmed in his evidence, but the High Court had found the discrepant version in the evidence earlier recorded about the date of the incident to be a vitiating factor. Their Lordships held this a minor discrepancy regarding the date of occurrence “since the event occurred soon after midnight and on the next day”, to borrow the words of their Lordships. It was in that context remarked that this small discrepancy was not of such significance as would invalidate the entire proceedings. The other remarks about furthering the purpose of rules meant to prevent sexual harassment at workplace came in the background of these particular features that were there in Mudrika Singh. This is hardly the case here. The case here is not based upon a hyper-technical objection, emanating from a minor discrepancy in evidence or the insistence on a requirement, like the one in Mudrika Singh, to write reasons for the decision that the statute did not warrant. The issue here is a substantial one; and, that is, the rules according to which inquiry into the case of sexual harassment was held not being made by the Authority competent under the law in the manner prescribed.

48. Now, to examine if the IITK Rules, according to which the inquiry was held, are, in any way, different from those framed under the PoSH Act in the manner prescribed, that is to say, the PoSH Rules made by the Central Government; and, if the two rules are different, would following the IITK Rules to hold an inquiry prejudice the petitioner? In order to answer this question, one has to look to the provisions of the PoSH Act and the PoSH Rules on one hand, juxtaposed against the relative provision under the IITK Rules and find out if there are such differences as might prejudice the petitioner in the matter of his defence. A comparison of the provisions of the PoSH Act and 33 the PoSH Rules framed thereunder and the IITK Rules made by the IIT, may be summarized in tabular form thus: Sr. No.

2. Particulars PoSH Act and the PoSH Rules IITK Rules Source of Power PoSH Rules enacted under Section 29 of the PoSH Act IITK Rules enacted under Section 13(1) of the Act of 1961 read with Section 11(1) of the PoSH Act. Constitution of ICC The constitution of the Internal Complaints Committee specified by Section 4 of the PoSH Act The constitution of the Internal Complaints Committee has been prescribed by Rule 4 of the IITK Rules: Constitution of the ICC according to Section 4 of the PoSH Act:

1. Presiding Officer (woman at a senior level)

2. Not less than two members from amongst employees committed to the cause of women/ experience in social work/ have legal knowledge

3. One member from amongst non-governmental organization or association committed to the cause of women or a person familiar with issues relating to sexual harassment. One half of the nominated persons as aforesaid to be

1. Presiding Officer, to be a senior woman Professor of the Institute;

2. one person from amongst the academic staff of the Institute;

3. one person from amongst the non-academic staff of the Institute;

4. two person from amongst academic/ non-academic staff of the Institute committed to the cause of women/ experience in social work/ knowledge; and

5. one person from amongst non- governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. At least one-half of the total members to be so nominated shall be women.

3. Manner of preliminary inquiry No provision for a preliminary inquiry Rule 16 envisages a preliminary inquiry and summary rejection of the complaint 4(a) Statement of parties during regular inquiry Rule 7. Manner of inquiry into complaint.—(1) Subject to the provisions of Section 11, at the time of filing the complaint, the complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witnesses. (2) On receipt of the complaint, the Complaints Committee shall send one of the copies received from the aggrieved woman under sub-rule (1) to the respondent within a period of seven working days. (3) The respondent shall file his reply to the complaint along with his list of documents, and Rule 18. On receipt of the complaint, the Committee shall as far as possible within seven working days, send a copy of the complaint along with the names and addresses of witnesses and supporting documents, received along with the complaint, to the respondent. At the same time, the Committee shall summon the respondent to appear in person and file his reply within a period not exceeding ten working days before the Committee. The summon notice shall contain the date, time and venue of the inquiry proceedings. Summon notice shall simultaneously be issued to the complainant appearance in the hearing. as well 4(b) Procedure of holding regular inquiry 34 names and addresses of witnesses, within a period not exceeding ten working days from the date of receipt of the documents specified under sub- rule (1). Rule 7. Manner of inquiry into complaint.— (4) The Complaints Committee shall make inquiry into the complaint in accordance with the principles of natural justice. (5) The Complaints Committee shall have the right to terminate the inquiry proceedings or to give an ex-parte decision on the complaint, complainant or respondent fails, without sufficient cause, to present herself or himself for three consecutive hearings convened by the Chairperson or Presiding Officer, as the case may be: Provided that such termination or ex-parte order may not be passed without giving a notice in writing, fifteen days in advance, the party concerned. (6) The parties shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of the before proceedings Complaints Committee. (7) In conducting the inquiry, a minimum of three Members of the Complaints Committee including the Presiding Officer or the Chairperson, as the case may be, shall be present.

19. The respondent shall in compliance of the notice as above, submit his reply to the complaint in six copies together with his own list of witnesses stating in clear terms their relevance to his defense, their addresses and supporting documents to the Committee.

20. The Presiding Officer shall make available to the complainant a copy of the reply filed by the respondent along with the list of witnesses and the supporting documents.

21. The aggrieved woman shall thereafter be allowed to submit her rejoinder, if any. Rule 22. Both the parties, i.e., the aggrieved woman and respondent shall be afforded reasonable opportunity to present and defend their case.

23. After the first date of hearing, subsequent hearing shall, as far as possible, be carried out on day-to- day basis. Should the respondent or the complainant fail, without valid ground or sufficient cause, to be present on any date of hearing before the Committee or the Presiding Officer, the Committee shall have the right to conduct ex- parte proceedings and to render ex-parte decision on complaint. Provided that such termination or ex-parte order may not be passed without giving a notice in writing at least three days in advance to the party concerned.

24. The Committee may suo-motto summon/call any person to appear as a witnesses if in its opinion, it shall be in the interest of justice.

25. The Committee shall have the right to summon, as many times as it deems necessary, the respondent, aggrieved woman and/or any witness supplementary testimony and/or clarifications.

26. The Committee shall have the power to summon the production of any official paper or documents pertaining or related to the subject matter of complaint, which in its opinion may be of assistance to the inquiry.

27. The past sexual history of the aggrieved woman shall not be 35

5. Hearing evidence post closure of inquiry There is no provision in the PoSH Act or the PoSH Rules to receive evidence after hearing before the ICC is over.

6. Manner of taking action sexual harassment against Rule 9. Except in cases where service rules exist, where the Complaints Committee arrives at the conclusion that the allegation respondent has been proved, it shall recommend employer or the District Officer, as the case may be, to take any action including a warning, written apology, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counselling session or carrying out community service. subjected to probe during the inquiry proceedings and any such information shall be deemed to be irrelevant for the purposes of complaint of sexual harassment.

28. The presence of a minimum of four members including the Presiding Officer shall necessary inquiry proceedings.

29. All inquiry proceedings shall be recorded by the Committee in writing. Rule 35. Nothing shall preclude the Committee or the Institute from taking cognizance of any new fact or evidence which may arise or be brought before it during inquiry the pendency of proceedings or even after the submission of findings/report to the appropriate authorities of the Institute. However, in such case, the committee shall be required to submit its supplementary report to the Director. Rule 39. The Committee shall after completion of inquiry submit a detailed and reasoned report to the Director at the earliest but not ten days after completion of the inquiry along with its recommendations thereto. a. If the Committee concludes that the allegations against respondent stand proved, it shall submit its report to the Director for awarding appropriate punishment as per the Statutes of the Institute. b. If the Committee concludes that allegations against the responded are malicious or false or forged/misleading documents have been produced on the part of the aggrieved woman, recommend to the Director to take action against such act or falsification, on the part of the aggrieved woman.

40. The Institute authorities shall act upon the recommendations within 60 days of its receipt and inform the Committee of action taken.

5. Appeal Rule 11. Subject to the provisions of Section 18, any person aggrieved from the recommendations made under sub-section (2) of Section 13 or If the aggrieved Rule 45. woman/complainant respondent is not satisfied with the findings of the Committee, she/he may prefer an appeal before the 36 under clauses (i) or clause (ii) of sub-section (3) of Section 13 or sub-section (1) or sub- section (2) of Section 14 or non- Section 17 or implementation of recommendations may prefer an appeal to the appellate authority notified under clause (a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946). Board of Governors along with all necessary documents. Provided the appeal must be filed within a period of ninety days of the recommendations/ findings/ decision of the Committee.

49. The question that is material to the petitioner is, if the inquiry were held under the PoSH Rules instead of the IITK Rules, would it have made any difference to the outcome? Apart from the broad differences under the two sets of Rules, which may not prejudice the petitioner, there are prominent features under the IITK Rules, which would inevitably work to the petitioner's prejudice. The foremost, amongst these Rules, is Rule 23 of the IITK Rules, when compared with Rule 7 of the PoSH Rules. It has to be borne in mind that the question of prejudice under the IITK Rules is being judged on a comparison of the pari materia provisions in the PoSH Rules.

50. Rule 23 of the IITK Rules provides that after the first date of hearing, the subsequent hearing before the Committee would proceed on a day-to-day basis, as far as possible. A speedy inquiry, by itself, does not prejudice the delinquent, nor do we intend to say that when we note that under sub-Rule (5) of Rule 7 of the PoSH Rules, there is no provision for the inquiry to be held on a day-to-day basis, as far as possible. The point of prejudice, which seems to come in the case of an inquiry held under the IITK Rules, is where Rule 23 provides that if the respondents or the complainant fail, without valid ground or sufficient cause, to be present on any date of hearing before the Committee, the Committee shall have the right to conduct ex parte proceedings and render an ex parte decision on the 37 complaint. By contrast, under sub-Rule (5) of Rule 7 of the PoSH Rules, it is provided that if the complainant or the respondents fail, without sufficient cause to be present for three consecutive hearings before the Complaints Committee, the Committee may give an ex parte decision. Whereas under Rule 23 of the IITK Rules, the power to proceed ex parte and give an ex parte decision is given to the Committee by giving the absenting party a notice in writing, at least three days in advance, the proviso to sub-Rule (5) of Rule 7 of the PoSH Rules requires the Complaints Committee to give a notice in writing 15 days in advance to the party in default.

51. In our opinion, it would be a fallacious test to apply if the complainant and the delinquent are placed on the same pedestal under Rule 23 of the IITK Rules, as regards a single day’s absence, to invite an ex parte decision or the notice period of three days. The correct test to determine this is if the procedure under the IITK Rules, when compared with the pari materia provisions under the PoSH Rules, is more stringent, liberal or the same. We find that the procedure under Rule 23 of the IITK Rules together with its proviso, certainly postulates a procedure, that is far more stringent than sub-Rule (5) of Rule 7 of the PoSH Rules. Whereas the IITK Rules empower the Committee to punish a single day's default by the delinquent with an ex parte decision, sub-Rule (5) of Rule 7 of the PoSH Rules invests the Committee with this power after a default of three consecutive hearings. Likewise, a decision, ex parte, can be rendered by the Committee under the IITK Rules by giving the delinquent a notice of three days, whereas in the case of the PoSH Rules, the delinquent would have to be given a notice of 15 days in advance before an ex parte decision is given by the Complaints Committee. This marked difference in the period 38 of time in the matter of punishable default and the breathing time to redeem the default, certainly makes the procedure under the IITK Rules far more prejudicial to the petitioner's interest as compared to the procedure envisaged under the PoSH Rules.

52. The next provision in the IITK Rules, that may be material to the question of prejudice for the petitioner or any other delinquent, is Rule 35. It enables the Complaints Committee to take cognizance of any new fact or evidence, that may be brought to its notice during the pendency of the inquiry or even after submission of findings/ report to the appropriate Authority of the IIT. The finding or the report in a case of this kind has to take the form of a supplementary report to the Director. By contrast, there is no provision under the PoSH Rules that may entitle the Complaints Committee to hear any evidence, after the inquiry is over. The powers conferred upon the Complaints Committee by the IIT through the IITK Rules are most unusual and carry provisions of a very drastic nature, that may cause utter prejudice to a delinquent, like the petitioner.

53. The provisions of Rule 35, in fact, militate against the fundamentals of what salutary principles, governing the holding of any domestic inquiry, would dictate. The Rule enables the ICC to take notice of new facts or evidence, that may not find place in the complaint instituted by the complainant or her evidence. It may come from any quarter and the ICC would be empowered to take cognizance of it. Likewise, the ICC, after all evidence is over and the inquiry report submitted to the appropriate Authority of the IIT, is entitled to take note of new facts and evidence. In such cases, they are empowered to submit a supplementary report. The role of an Inquiry Officer or Inquiry Committee in any disciplinary proceedings, which an 39 inquiry under the PoSH Act is akin to, is different from an investigator's role. An investigator, after all, does not give findings, but only submits a report together with evidence for the Court or the Tribunal, to decide upon whether the charge is established against the accused or not. Since the conclusions of the investigator are only in the nature of a report on which the process of trial commences, they have the freedom to further investigate after they have put in their report and by filing a supplementary report. There too, they have to take leave of the Court to proceed further with the investigation once a report is put in. Here, the Complaints Committee is a body empowered to record findings on the allegations that figure in the complaint.

54. To add to the allegations, after a report is submitted on the basis of new facts, coming to the Complaints Committee's notice under the IITK Rules and hearing further evidence indeed seriously prejudices the delinquent's right, who is exposed to a multiplicity and perpetuality of charges, where the jeopardy never seems to end. This is why we think that the provisions of Rule 35 of the IITK Rules are very drastic and seriously prejudice a delinquent, like the petitioner, if compared with the procedure under the PoSH Rules, where the Complaints Committee has no such power. The petitioner would stand to face definitive and drastic prejudice while facing an inquiry under the PoSH Act, in accordance with the IITK Rules, vis-à-vis the PoSH Rules.

55. The procedure for an appeal postulated under Rule 45 of the IITK Rules is also one at gross variance with the procedure under Rule 11 of the PoSH Rules. The complainant or the respondent, whoever is not satisfied with the findings of the Committee under the IITK Rules, may prefer an appeal to the 40 Board of Governors along with necessary documents. The appeal has to be preferred within the time period of 90 days of the recommendations/ findings or report of the Committee. By contrast, what is made appealable under the IITK Rules is a recommendation by the ICC, so far as the delinquent is concerned, under Clause (i) or (ii) of sub-Section (3) of Section 13 of the PoSH Act. This, by itself, does not much prejudice the petitioner or any delinquent, because under the IITK Rules, findings of the Inquiry Committee have been made appealable to the Board of Governors of the IIT. What, in fact, prejudices a delinquent and would prejudice the petitioner under the IITK Rules, is the fact that whereas the forum of appeal from the findings of the Inquiry Officer is before a domestic body, being the Board of Governors, with its own pitfalls and disadvantages, emanating from lack of training in the law as a body entitled to hear and decide an appeal, the possibility of some in-house biases etc. the forum under Rule 11 of the PoSH Rules to hear an appeal under the PoSH Rules is the Appellate Authority notified under Clause (a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946, which is the Tribunal or Court, an independent authority, not part of the establishment.

56. Besides the prejudice that we have so far tested on a comparison of the PoSH Rules and the IITK Rules, the exercise of the right of appeal on one hand and the decision on the recommendations of the ICC on the other, also seems to bring out a sharp incongruity within the provisions of the IITK Rules. The ICC is obliged under Rule 39 to submit a detailed and reasoned report to the Director, not later than 10 days after completion of inquiry, along with its recommendations. If the ICC concludes that the allegations against the delinquent stand 41 proved, the report shall be made to the Director, recommending the award of appropriate punishment in accordance with the statutes of the IIT. The Authorities of the IIT are enjoined by Rule 40 of the IITK Rules to act upon the recommendations of the ICC within 60 days of receipt and inform the Committee of the action taken.

57. Now, from the date the Committee submit their report, assuming that it is provided to the delinquent immediately, he has the right to prefer an appeal within 90 days, but the Authorities of the IIT are enjoined by Rule 40 to decide within 60 days of receipt of the Committee's report. This virtually curtails the period of limitation given to the delinquent to prefer an appeal against the findings of the ICC from 90 days under the proviso to Rule 45, to less than 60 days because of Rule 40 of the IITK Rules. This incongruity, which is intrinsic to an interplay between the provisions of Rules 40 and 45 of the IITK Rules, prejudices the delinquent – someone like the petitioner, in exercising his right of appeal.

58. One would not pay much attention to the last detail on the issue of prejudice, but the others indeed cause serious prejudice. Still, there being tangible prejudice to the petitioner, if the inquiry proceeds in accordance with the IITK Rules, contrasted with what he would have to face if the inquiry were held in accordance with PoSH Rules, the IITK Rules would have to be held invalid, also on the test of prejudice.

59. We have already held that the IITK Rules are not within the authority of the IIT to frame under the PoSH Act. The element of prejudice being evident across various provisions of the IITK Rules, when compared with the PoSH Rules, it is very difficult to accept the respondent's case that holding the inquiry 42 here in accordance with the IITK Rules does not make any material difference or cause such prejudice to the petitioner, as may warrant interference with the conclusions of the inquiry and the action taken on ground that all of it was done under the IITK Rules, which are really not authorized to be framed by the IIT under the PoSH Act. The answer to the first question would be that the IIT is not empowered to frame the IITK Rules under the PoSH Act. The answer to the corollary of the said question would be that the inquiry held under the IITK Rules, which the IIT did not have power to make under the PoSH Act, would be vitiated.

60. This takes us to the second question whether the inquiry held was in breach of the principles of natural justice and the salutary procedure to hold an inquiry into misconduct, involving the imposition of a major penalty.

61. On the question of violation of principles of natural justice, this Court was addressed in great detail by learned Counsel appearing for the parties. No doubt, Rule 23 of the IITK Rules, under which the Committee proceeded, provides for subsequent hearings, after the first date of hearing to be scheduled, as far as possible, on a day-to-day basis, but that, to all seeming, does not mean a roller coaster ride, where the delinquent may not understand the evidence led against him and prepare himself for cross-examination or his defence. The petitioner precisely faced that situation before the ICC of the IIT. After the first date of hearing, which was scheduled on

18.07.2022, or the preliminary inquiry, as it was called, the ICC fixed the next date of regular hearing on 21.07.2022 and then on 27.07.2022. Thereafter, they went at a breath-taking speed, scheduling hearings on 28.07.2022, 29.07.2022, 30.07.2022,

01.08.2022, 04.08.2022, 05.08.2022, 06.08.2022, 08.08.2022, 43

10.08.2022, 16.08.2022, 17.08.2022, 18.08.2022, 19.08.2022,

22.08.2022, 23.08.2022, 25.08.2022, 26.08.2022, 29.08.2022,

30.08.2022, 01.09.2022, 02.09.2022, 03.09.2022, 05.09.2022,

06.09.2022, 07.09.2022, 08.09.2022, 12.09.2022, 14.09.2022 and concluding on 21.09.2022. There is always a difference between hurry and haste; between dispatch and reckless speed.

62. The ICC were unmindful of the fact that the petitioner had to defend himself, which postulates understanding what the complainant's witnesses say, and preparing himself for cross- examining them. He is not, by any means, a lawyer, trained in the art of cross-examination. Rather, he was a novice at it. He would, to effectively defend himself, require consultation back home. This, in turn, would involve hearing them as they deposed and going through their recorded deposition, which would require two or three days' time to prepare himself, depending on the number of witnesses examined on a particular day. The petitioner would also have to analyze the documentary evidence led. The breakneck speed, at which the ICC went, apparently foiled everything for the petitioner in the matter of his effective defence.

63. To add to it are telltale signs of unsavory hurry, which resulted in further denial of opportunity of hearing to the petitioner. We notice that on 30.07.2022, the hearing before the inquiry was adjourned to 01.08.2022 on the petitioner's request, when he needed to take his mother to hospital. On 08.08.2022, the petitioner had to take his mother to the hospital again and, therefore, sought an adjournment until 10.08.2022. This request was rejected by the ICC and the evidence of CW-3 and 4 recorded behind the petitioner's back. On 23.08.2022, the petitioner was indisposed as he had suffered from fever and 44 loose motions. A two days' adjournment was sought by the petitioner. CW-3, who was present for cross-examination, expressed her inability to appear further as she said that she had already appeared twice for the cross-examination. The ICC remarked that the petitioner had failed to cross-examine her. The case was adjourned to 25.08.2022 for recording of defence evidence. The witness, who was crucial for cross-examination, apparently was not called back again, notwithstanding the petitioner's apparent indisposition and the short adjournment that he sought. In this regard, reference may be made to the petitioner's assertions in paragraphs Nos.96, 97, 98 and 99 of the writ petition, where it is averred: “96. That the petitioner had raised an objection that the ICC had conducted ex parte inquiry without any reason or justification on 08.08.2022, 10.08.2022 and 05.09.2022. The ICC in response to the same had opined that the petitioner appeared for the hearing on 10-8-2022 and he was informed about the proceedings of the previous two hearings held on 6-8-2022 and 8-8- 2022. He requested for the copy of the daily order sheets for the same and was informed by the ICC that it would be provided to him along with copies of the depositions of CW-3 and CW-4 at the end of that day's (10-8-2022) hearing. It has further been contended that during the hearing held on 5-8-2022 (Friday), the next hearing of the Inquiry was scheduled on 6-8-2022 (Saturday) at 3:30 PM for the deposition of remaining complainant's witnesses. However, the petitioner requested for an adjournment.

97. That in this regard it is submitted that the ICC has admitted to having received petitioner's request for adjournment of hearing scheduled for 08.08.2022 on 06.08.2022 itself at 11:30 PM i.e. well in advance. ICC has also admitted to having conducting the hearing ex-parte on 08.08.2022 despite having advance information about petitioner's absence on genuine grounds.

98. That no details whatsoever of the alleged "difficulties and circumstances faced by the ICC members in scheduling/ re-scheduling the proceedings as per convenience of all the parties concerned" have been given. In the 45 absence of the any valid reasons, it has to be presumed that ICC went ahead with the proceedings ex-parte only because of its extreme prejudice against the petitioner. There is absolutely no justification for recording even examination-in- chief of complainant's witnesses behind the back of the petitioner.

99. That the ICC's contention that the petitioner was not put to any disadvantage merely because copies of their depositions and opportunity to cross examine them were provided to the petitioner is not tenable because the petitioner had a right to be present during the recording of their examination-in-chief to ensure true and faithful recording of their depositions and to watch their demeanor.”

64. In paragraph No.87 of the counter affidavit filed on behalf of the IIT (respondent Nos.2 to 6), paragraph Nos.96, 97 and 98 of the writ petition have been answered thus: “87 That the contents of paragraphs no. 96, 97 and 98 of the writ petition are not admitted as stated and hence denied. Further, in reply thereto it is submitted that it is to be noted that it was a phase of regular hearing and the adjournments as sought by the delinquent/ petitioner would have caused delay in completion of the proceedings. It was probably for this reason that the ICC was circumspect in granting liberal adjournments of the hearing. However, the notice of each hearing was given to the petitioner well ahead of hearing. If the petitioner opted to stay away from the proceedings for any reason, the ICC cannot be expected to re-schedule its meeting at the convenience of the petitioner. As such, the hearing was conducted as per its schedule and it was the petitioner who opted to stay away from the proceedings of his own volition.”

65. It would be evident, from a reading of paragraph No.87 of the counter affidavit that there is no cogent reason given by the IIT for them being in such an unsavory hurry that would inherently curtail the petitioner's right to a fair hearing. Reference in this connection may be made to the decision of the Supreme Court in Aureliano Fernandes v. State of Goa and others, (2024) 1 SCC 632. In Aureliano Fernandes 46 (supra), the following remarks of the Supreme Court are relevant: “(d) Whirlwind Proceedings

70. On examining the records, it emerges that the point at which the Committee fell into an error was when it attempted to fast forward the entire proceedings after the first few hearings and declined to grant a reasonable time to the appellant to effectively participate in the said proceedings. It is noteworthy that the proceedings of the Committee had commenced on 16- 4-2009 and stood concluded on 5-6-2009. During this period, 18 meetings were conducted by the Committee. Following are the month-wise details of the dates on which the meetings of the Committee were conducted: (i) April 2009 — On 16th, 27th and 29th (ii) May 2009 — On 6th, 12th, 13th, 14th, 19th, 20th, 22nd, 23rd, 25th, 27th, 28th and 29th (iii) June, 2009 — On 3rd, 4th and 5th

71. 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 5- 5-2009, addressed by the Committee to the appellant informing him that the next date for filing his reply and for recording further depositions was 12-6-2009. 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 “12-5-2009” and the date for recording further depositions should be read as “14-5-2009”, 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 20-5-2009, the Committee had written to the appellant giving him a last opportunity to present himself on 20-5- 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 47 and directed him to furnish his reply within 48 hours i.e. by 22-5-2009.

72. Even if this Court was to accept the submission made by the learned counsel for the respondents that the appellant was offering flimsy excuses to somehow prolong the proceedings and the health ground taken by him was not genuine, it does not explain the approach of the Committee which was well aware of the fact that at least six more depositions had been handed over to the appellant as late as on 20-5-2009. Even if he had been hale and hearty, he would still have required a reasonable time to respond to the additional depositions and simultaneously, prepare himself for cross-examining the complainants and completing his deposition. This can only be termed as an unreasonable and unfair direction by the Committee.

73. 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. 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 [Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932] 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.

74. 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 alteram partem could not have been thrown to the winds in this cavalier manner.

66. Like the case in Aureliano Fernandes, the ICC were in 48 no less a hurry, denying the petitioner a reasonable time to effectively defend himself, which we have already remarked about. We, therefore, hold that the petitioner was denied due opportunity of hearing because of the hurried course of proceedings followed by the ICC in this case and the way it went about them, detailed hereinbefore.

67. We do not intend to examine the question of bias that has been canvassed, inferable from the conduct of the ICC members, as that might not be necessary nor desirable. However, the question whether the conduct of proceedings against the petitioner, the way it was done, gives rise to an inference of malice in law, is potent.

68. What constitutes malice in law, fell for consideration of the Supreme Court in Ms X v. Registrar General, High Court of Madhya Pradesh and another, (2022) 14 SCC 187. In Ms X (supra), it was observed by the Supreme Court: “60. We may gainfully refer to the following observations made by this Court in Kalabharati Advertising v. Hemant Vimalnath Narichania [Kalabharati Advertising v. Hemant Vimalnath Narichania, (2010) 9 SCC 437 : (2010) 3 SCC (Civ) 808] : (SCC pp. 448-49, paras 25-26) “25. The State is under obligation to act fairly without ill will or malice — in fact or in law. “Legal malice” or “malice in law” means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for “purposes foreign to those for which it is in law intended”. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the 49 rights of others, which intent is manifested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla [ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521] , S.R. Venkataraman v. Union of India [S.R. Venkataraman v. Union of India, (1979) 2 SCC 491 : 1979 SCC (L&S) 216] , State of A.P. v. Goverdhanlal Pitti [State of A.P. v. Goverdhanlal Pitti, (2003) 4 SCC 739] , BPL Ltd. v. S.P. Gururaja [BPL Ltd. v. S.P. Gururaja, (2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [W.B. SEB v. Dilip Kumar Ray, (2007) 14 SCC 568 : (2009) 1 SCC (L&S) 860] .)