1

A.F.R.

Reserved on 16.01.2015

Delivered on 19.02.2015

Court No. - 29

Case :- WRIT - A No. - 35877 of 2014

Petitioner :- Dr. Virendra Singh

Respondent :- Banaras Hindu University, Varanasi And 3 Others

Counsel for Petitioner :- Dr.Virendra Singh in person

Counsel for Respondent :- Ajit Kumar Singh, S.C.

Hon'ble Dilip Gupta, J.

Hon'ble Anjani Kumar Mishra, J.

The petitioner, who retired as a Dean in the Faculty of Engineering

and Technology of the Banaras Hindu University, Varanasi

1

in January

2011 but who was subsequently re-employed as a Professor in the

Department of Civil Engineering in the Indian Institute of Technology

(Banaras Hindu University) Varanasi

2

upto 30 July 2014, has filed this

petition to assail the order dated 26 April 2014 by which he was informed

by the Institute that in view of the complaint that was received from a girl

student of his Department regarding allegation of sexual misconduct and

in view of the report submitted by the Women's Grievance Cell which

examined the complaint, his re-employment as a Professor in the Institute

stands discontinued with immediate effect.

It transpires from the records of the writ petition that after the

petitioner retired as a Dean in the Faculty of Engineering and Technology

of the University in the month of January 2011, he applied for re-

employment. A letter dated 20 July 2012 was sent to the petitioner by the

1the University

2the Institute

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2

University informing him that the Executive Council of the University in

its meeting held on 29 July 2012 had been pleased to re-employ him as a

Professor and that if he was willing to accept the offer, he could submit

his joining report to the Director of the Institute. The petitioner accepted

the terms and conditions stipulated in the order and was deputed to the

Department of Civil Engineering of the Institute for a period of one year

or till the post was filled up on a regular basis. Before the term of one

year was come to an end on 30 July 2013, the petitioner moved an

application for extension of his re-employment as a Professor. It needs to

be noted that the erstwhile Institute of Technology of the University

became the Indian Institute of Technology (Banaras Hindu University),

Varanasi with effect from 29 June 2012 under the provisions of the

Institutes of Technology (Amendment) Act, 2012. A communication

dated 10/11 December 2013 was sent to the petitioner by the Institute

extending his re-employment for a further period of one year with effect

from 30 July 2013 on the existing terms and conditions. The term of re-

employment of the petitioner as a Professor in the Institute, therefore,

stood extended upto 30 July 2014.

On 18 April 2014, a girl student who was studying in Part-IV in the

Department of Civil Engineering of the Institute submitted a complaint to

the Director of the Institute that she had been sexually harassed by the

petitioner and the complaint is as follows :-

“I wish to bring to your notice an incident of

great concern and sorrow that happened on 18 April

2014 at around 5:30 pm.

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I was sexually harassed by a senior professor,

Virendra Singh (ex H.O.D. and ex Dean), of my

department after he took me to a lonely place saying

that he wanted me to have a look at the new apartment

he had purchased. He first invited me to have tea with

him at Vishwanath Temple and then asked me to

accompany him to Lanka as he wanted to drink lassi. I

tried to settle him to have his drink at the temple but

he was adamant on going to Lanka. Out of respect, as

he is the senior most professor of our department, I

followed him dutifully to his car. On our way we met

Prof. K.P. Singh. After the drink he said that he

wanted to visit his newly purchased flat to check

progress of its work and I had no option but to follow

him.

In the lonely apartment after we passed the

guards he put his arm on my shoulder. When I resisted

he asked me if I wanted to see his apartment from

inside. By that time I was feeling uneasy and refused

the offer. After that he turned towards me in an

attempt to kiss and forced me to enter the room.

Alarmed by the situation I ran away from the

place. He followed me, forcefully hold my hand and

shamelessly tried to persuade me to return to the

apartment or least enter his car. Somehow I ran away

from him and managed to inform Prof. Rajesh Kumar

and Prof. P.R. Maiti, professors of my department.

Apart from this, he used to call me to his

chamber very frequently, for project works, as he did

to other female students of the department too. He

would often ask us to visit his home in person to

discuss work. On some earlier occasions when he had

asked me to meet him outside the department, I had

taken some friends with me to accompany us. This

time he particularly asked me not to bring anyone with

me saying that he did not feel comfortable in

discussing his work that way. Thinking that the temple

was a safe place, I agree to it. So finding me alone this

time, he tried to take advantage of me.

This is a very shameful incident for our institute

and extremely disturbing for me as I considered him to

be my mentor. I request you to please do the needful

by taking serious action against him and making sure

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that nothing like this happens again with any other

girl. I also request you to take care of my security.”

The complaint, which was submitted by the girl student on the

same day the incident had happened, was forwarded by the Director of

the Institute to the Women's Grievance Cell for making an enquiry into

the conduct of the petitioner. A Committee was then constituted

consisting of senior members of Departments of the Institute and the

constitution of the Committee is as follows:-

1.Prof. Rekha Srivastava,

Dept. of Mathematical Sciences, IIT

Chairperson

2.Dr. Kalpana Chaudhary,

Department of Electrical Engineering, IIT

Member

3.Dr. Medha Jha,

Department of Civil Engineering, IIT

Member

4.Smt. Swati Biswas

Deputy Registrar, IIT

Member Secretary

The Committee met on 22 April 2014, 23 April 2014 and 24 April

2014. The complainant, the petitioner, Dr. Rajesh Kumar (Associate

Professor in the Department of Civil Engineering), Sri Karan Modi (a

student of Part-III in the Department of Civil Engineering) and Dr. P.R.

Maiti (Assistant Professor in the Department of Civil Engineering) were

called to appear before the Committee. The Committee recorded the

statements of the aforesaid persons and gave it findings on 25 April 2014

against the petitioner on the allegation made by the girl student. The

Director of the Institute, thereafter, issued the order dated 26 April 2014

for discontinuance of the re-employment of the petitioner as a Professor

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in the Department of Civil Engineering of the Institute with immediate

effect.

The petitioner, who appeared in person, refuted the allegation made

by the girl student and submitted that the order was passed in complete

breach of the principles of natural justice as no disciplinary enquiry was

conducted against him. The petitioner submitted that the Committee

merely recorded his statement and the statement of other persons and

even the enquiry report submitted by the Committee was not supplied to

him. The petitioner pointed out that the impugned order could not have

been passed merely on the basis of the said report. In this connection, the

petitioner placed reliance upon Statute 31(a) of the Statutes of the

University as also Ordinance 23 to substantiate that his services could

have been terminated only in accordance with the procedure prescribed

therein which requires a detailed disciplinary enquiry to be held. The

petitioner also submitted that as he had been re-employed by the

University, it was not permissible for the Institute to have dispensed with

his services.

Sri Ajit Kumar Singh, learned counsel appearing for the University

and the Institute, however, submitted that in view of the seriousness of

the allegations that had been made against the petitioner by a girl student

of his Department which allegations were found to be true by the

Committee consisting of Senior Professors of the Departments of the

Institute, the re-employment of the petitioner as a Professor in the

Department of Civil Engineering was discontinued and that in such

6

circumstances, a detailed enquiry was not required to be held nor a copy

of the report was required to be served on the petitioner. Learned counsel

also submitted that the petitioner was re-employed by the Institute by

order dated 10/11 December 2013 for a further period of one year with

effect from 30 July 2013 and, therefore, the contention of the petitioner

that the Institute did not have the power to dispense with his services and

only the University could have dispensed with his services is not correct.

We have considered the submissions advanced by the learned

counsel for the parties.

The petitioner retired as a Dean in the Faculty of Engineering and

Technology of the University in January 2011. He, however, submitted

an application for re-employment. He was re-employed as a Professor in

the Department of Civil Engineering of the Institute for a period of one

year. This decision was taken by the Executive Council of the University.

Though the Institute of Technology of the University became the Indian

Institute of Technology (Banaras Hindu University), Varanasi in view of

the provisions of the Act, the Executive Council of the University was to

continue to function until the new Board was constituted for the Institute.

It is for this reason that the Executive Council of the University took a

decision on 29 July 2012 to depute the petitioner in the Department of

Civil Engineering of the Institute for a period of one year. Subsequently,

the Institute, by order dated 10/11 December 2013, extended the re-

employment of the petitioner upto 30 July 2014. However, three months

before the said period was to come to an end, a girl student in the

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Department of Civil Engineering in which the petitioner was a Professor

made a complaint dated 18 April 2014 against the petitioner regarding

sexual misconduct.

The Director of the Institute placed the complaint made by the girl

student before the Women's Grievance Cell for immediately making an

enquiry. A Committee consisting of senior members of the Institute

comprising of Prof. Rekha Srivastava (Department of Mathematical

Sciences), Dr. Kalpana Chaudhary (Department of Electrical

Engineering) and Mrs. Medha Jha (Department of Civil Engineering) was

constituted with Smt. Swati Biswas (Deputy Registrar of the Institute) as

the Member Secretary. The complainant and the petitioner were called to

appear before the Committee on 22 April 2014 and their statements were

recorded. Dr. Rajesh Kumar, Associate Professor in the Department of

Civil Engineering and Karan Modi, a student of Part-III in the

Department of Civil Engineering were also called to appear before the

Committee on 23 April 2014. The statements made by them were also

recorded. Dr. P.R. Maiti, Assistant Professor appeared before the

Committee on 24 April 2014 and his statement was also recorded. On the

basis of the statements, the Committee submitted its report to the Director

of the Institute which is as follows -

“1.Miss X, IDD Part-IV, Department of Civil

Engineering, IIT (BHU), received a phone call at 3.30

p.. on 18.4.2014 from Prof. Virendra Singh, ex-head,

Department of Civil Engineering & ex-Dean, IT, BHU

to have 'Lassi' at Lanka. Whereas Prof. Virendra Singh

informed the committee that invitation was from the

student and he was not sure whether he called her or

the student called him. (Further as per letter dated

8

23.04.14 of Prof. Virendra Singh addressed to the

Director, ITT (BHU) he has accepted that he phoned

her if she is coming to his room to interact about the

research and asked her to come alone). But Miss X

insisted him to have the drink at Vishwanath Temple.

After reaching Vishwanath Temple at around 5.30

p.m., Prof. Virendra Singh asked her to accompany

him to Lanka for lassi. The fact is that both of them

went to Lanka together in the car of Prof. Virendra

Singh which has been accepted by both of them.

2.Prof. K.P. Singh, ex-Director, IT, BHU met

them in Lanka where both of them were walking to

have 'Lassi'. Again this has been accepted by both of

them.

3.After seeing off Prof. K.P. Singh, they drank

'Lassi. After drinking 'Lassi', Prof. Virendra Singh

asked the complainant to visit his flat near Samne

Ghat to check the progress of work of the flat. Prof.

Virendra Singh denied the fact that she accompanied

him to Samne Ghat and further narrated that the

complainant left him after taking 'Lassi' in Lanka, but

he accepted that from lanka he went to his brothers

place which is near to his apartment alone.

4.The complainant further narrated that, “In the

lonely apartment after we passed the guard he put arm

on my shoulder. When I resisted he asked me if I

wanted to see his apartment from inside. By that time I

was feeling uneasy and refused the offer. After that he

turned towards me in an attempt to kiss and forced me

to enter the room”. These facts were denied by Prof.

V. Singh. He accepted that he went alone to his

brothers house which is near to 'Ojha Apartments'.

5.The complainant called her friend Mr. Karan

Modi (her junior) IDD Part-III Department of Civil

Engineering, ITT BHU after coming out of the flat

and asked him to pick up her from Lanka. In the

meantime, when she was walking towards Lanka from

Samne Ghat, Prof. Virendra Singh called on her

mobile and asked sorry for whatever happened.

6.Mr. Karan Modi picked her from Lanka and

they called Ishu Bansal classmate of Miss X and all of

them went to the house of Dr. Rajesh Kumar. From

there, all of them went to the Department of Civil

Engineering in the chamber of Prof. Rajesh Kumar.

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She narrated the whole incident in from of Prof.

Rajesh Kumar and Dr. P.R. Maiti who eventually was

present in the Department of Civil Engineering at that

time. Dr. Rajesh Kumar informed the committee that

at that time, the mental condition of the girl student

was not good and she was in tremendous tension and

this fact was supported by Dr. P.R. Maiti and Mr.

Karan Modi also.”

It is on a consideration of the statements made by the aforesaid

persons that the Committee found as a fact that the complainant and the

petitioner went to Lanka to have 'Lassi' and thereafter the petitioner took

the complainant to his apartment where, according to the complainant, the

sexual misconduct happened. The petitioner admitted that he went with

the girl student to have 'Lassi' at Lanka but he denied that he took the girl

student to his apartment. The Committee, however, found that other

factors like calling Karan Modi, the complaint to Dr. Rajesh Kumar and

the timing of the incident corroborated the statement of the girl student.

The Committee also found that it was most unbecoming of a Professor of

the Institute to have accompanied a girl student and that too to a lonely

place which indicates his bad intention. The Board of Governors,

therefore, ordered that the re-employment of the petitioner as a Professor

in the Department of Civil Engineering of the Institute should be

discontinued with immediate effect. It is this decision that was

communicated by the Institute to the petitioner.

The petitioner has refuted the allegation of sexual misconduct

made by the girl student and has submitted that a false complaint had

been made by the girl student because of an incident that had happened

10

on 12 April 2014. According to the petitioner, the complainant had earlier

invited him for a cup of tea in a hotel on 12 April 2014. The petitioner

accepted the invitation and during the meeting he found that the

complainant and a third year student who were sitting on a bench in front

of the petitioner started flirting in his presence. The petitioner claims that

since he rebuked them she had filed a false complaint against him.

It is difficult to accept this submission of the petitioner. In the first

instance, as is seen from the documents which have been enclosed with

the counter affidavit, this incident which the petitioner claimed had

happened on 12 April 2014 was brought to the notice of the Director of

the Institute only on 23 April 2014 when the girl student had filed the

complaint on 18 April 2014 against the petitioner. It appears that as an

after thought the petitioner has so stated to make out a defence for

himself.

This apart, as noticed above, the Committee which consisted of

senior teachers of the Institute had arrived at a conclusion on the basis of

the statements made by the complainant, two Assistant Professors

teachers and a student. The complaint was submitted by the girl student to

the Director of the Institute on the same date the incident had happened.

She narrated the sequence of events including what had happened in the

lonely apartment. Soon after the incident she also informed two other

Professors of the Department. The petitioner did admit before the

Committee that he knew the complainant for the last 10 months; that after

taking lassi he was with the complainant in Vishwanath Temple at 5:30

11

p.m. where he met Professor K.P. Singh at around 5:45 p.m. Though the

petitioner has denied that he went to his new flat in Lanka/Samne Ghat

with the complainant after having taken lassi, but he admits that he went

alone to his brother's house situated closeby in front of Ojha Apartments

at around 6:15 p.m. Prof. Rajesh Kumar also gave his statement before

the Committee. He stated that the complainant had contacted him on 18

April 2014 immediately after the incident that had taken place and that he

had advised her to make a complaint to the appropriate authority. On a

query being made as to whether the complaint made by the girl student

was correct, he stated that in his opinion the complaint was correct. He

also stated that the mental condition of the complainant was not good and

she was in tremendous tension at the time of reporting the incident. Sri

Karan Modi stated before the Committee that the complainant had told

him everything about the incident that happened on 18 April 2014. He

also stated that when he and the complainant were studying in the Library

at about 4:30 p.m., the complainant informed him that the petitioner had

asked her to accompany him for a visit to Lanka to drink lassi. He also

stated that the complainant had told him that she had narrated the entire

incident to Prof. Rajesh Kumar. The statement of the girl student when

appreciated in the background of the statements of the two Professors and

the student to whom the girl student also confided, does inspire

confidence.

In this regard, we need to remind ourselves of the observations that

were made by the Supreme Court in Apparel Export Promotion

12

Council Vs. A.K. Chopra

3

that in a case involving charge of sexual

harassment, the Courts are required to examine the broader probabilities

of a case and not get swayed by insignificant discrepancies or narrow

technicalities. The statement of the victim has to be appreciated in the

background of the entire case, and when the evidence of the victim

inspires confidence, the Courts are obliged to rely on it. Such cases are

required to be dealt with great sensitivity and sympathy is wholly

misplaced and mercy has no relevance. The observations of the Supreme

Court are as follows:-

“…........... In the instant case, the behavior of

respondent did not cease to be outrageous for want of

an actual assault or touch by the superior officer. In a

case involving charge of sexual harassment or attempt

to sexually molest, the courts are required to examine

the broader probabilities of a case and not get swayed

by insignificant discrepancies or narrow technicalities

or the dictionary meaning of the expression

"molestation". They must examine the entire material

to determine the genuineness of the complaint. The

statement of the victim must be appreciated in the

background of the entire case. Where the evidence of

the victim inspires confidence, as is the position in the

instant case, the courts are obliged to rely on it. Such

cases are required to be dealt with great sensitivity.

Sympathy in such cases in favour of the superior

officer is wholly misplaced and mercy has no

relevance..............”

It is, in such circumstances, not possible for the Court to conclude

that the findings recorded by the Committee of senior teachers of the

Institute are perverse.

The issue, however, that also arises for consideration is whether in

the facts and circumstances of the case, it was necessary for the Institute

3(1999) 1 SCC 759

13

to have held a detailed disciplinary enquiry against the petitioner before

discontinuing his re-employment.

It is trite that the rules of 'natural justice' are not embodied rules

and they cannot be put into a strait-jacket formula. The underlying

principles of natural justice is to check arbitrary exercise of power and,

therefore, the principle implies a duty to act fairly. It is not possible to lay

down a rigid rule as to when the principles of natural justice would apply

as the requirements of natural justice must depend on the facts and

circumstances of the case, the nature of the enquiry, the subject-matter to

be dealt with. The Supreme Court in State of Punjab Vs. Jagir Singh

4

and Karnataka SRTC Vs. S.G. Kotturappa

5

has held that the principles

of natural justice are required to be complied with having regard to the

fact situation obtaining therein and cannot be applied in a vacuum

without reference to the relevant facts and circumstance of the case.

In Hira Nath Mishra & Ors. Vs. The Principal, Rajendra

Medical College, Ranchi & Anr.

6

the Supreme Court examined at length

the application of principles of natural justice in the context of an order

that was passed by the Principal of a College expelling certain male

students against whom the girls had made a complaint that they had

entered the compound of the girls' hostel without clothes and had tried to

pull the hand of one of the girls. The Principal of the College, when the

complaint was filed by 36 girl students, entrusted the enquiry to a three

member Committee consisting of teachers of the College. The Committee

4(2004) 8 SCC 129

5(2005) 3 SCC 409

6(1973) 1 SCC 805

14

directed the four male students to appear in connection with the enquiry

and were asked to write down whatever they had to say. The girl students,

who were parties to the complaint, also gave their statements before the

Enquiry Committee. The statements of the girl students had not been

recorded in the presence of the male students. After making the necessary

enquiry, the Committee found that the male students were guilty of grave

misconduct and recommended that they should be expelled. Acting on

this report, the Principal passed the order of expulsion. The Supreme

Court held that in such circumstances, the requirement of natural justice

was fulfilled and the relevant observations are as follows:-

“10.We think that under the circumstances of the

case the requirements of natural justice were

fulfilled. The learned Counsel for the respondents

made available to us the report of the Committee just

to show how meticulous the members of the

Committee were to see that no injustice was done.

….......…... The Committee on a careful

consideration of the material before them came to

the conclusion that the three appellants and

Upendra had taken part in the night raid on the

girls Hostel. The report was confidentially sent to

the Principal. The very reasons for which the girls

were not examined in the presence of the

appellants, prevailed on the authorities not to give

a copy of the report to them. It would have been

unwise to do so. Taking all the circumstances into

account it is not possible to say that rules of natural

justice had not been followed. In Board of Education

v. Rice 1911 AC 179 Lord Loreburn laid down that in

disposing of a question, which was the subject of an

appeal to it, the Board of Education was under a duty

to act in good faith, and to listen fairly to both sides,

inasmuch as that was a duty which lay on everyone

who decided anything. He did not think that the Board

was bound to treat such a question as though it were a

trial. The Board need not examine witnesses. It could,

he thought, obtain information in any way it thought

best, always giving a fair opportunity to those who

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were parties in the controversy to correct or contradict

any relevant statement prejudicial to their view. More

recently in Russell v. Duke of Norfolk 1949 1 All ER

109 Tucker, L.J. observed: "There are, in my view, no

words which are of universal application to every kind

of inquiry and every kind of domestic tribunal. The

requirements of natural justice must depend on the

circumstances of the case, the nature of the inquiry the

rules under which the tribunal is acting, the subject-

matter that is being dealt with, and so forth.

Accordingly, I do not derive much assistance from the

definitions of natural justice which have been from

time to time used, but, whatever standard is adopted,

one essential is that the person concerned should have

a reasonable opportunity of presenting his case." More

recently in Byrne v. Kinematograph Renters Society

Ltd. 1958 2 All ER 579 Harman, J. observed "what,

then, are the requirements of natural justice in a case

of this kind? First, I think that the person accused

should know the nature of the accusation made;

secondly that he should be given an opportunity to

state his case; and thirdly, of course, that the tribunal

should act in good faith. I do not think that there really

is anything more".

11. Rules of natural justice cannot remain the same

applying to all conditions. We know of statutes in

India like the Goonda Acts which permit evidence

being collected behind the back of the goonda and the

goonda being merely asked to represent against the

main charges arising out of the evidence collected.

Care is taken to see that the witnesses who gave

statements would not be identified. In such cases there

is no question of the witnesses being called and the

goonda being given an opportunity to cross-examine

the witnesses. The reason is obvious. No witness will

come forward to give evidence in the presence of the

goonda. However unsavory the procedure may appear

to a judicial mind, these are facts of life which are to

be faced. The girls who were molested that night

would not have come forward to give evidence in

any regular enquiry and if a strict enquiry like the

one conducted in a court of law were to be imposed

in such matters, the girls would have had to go

under the constant fear of molestation by the male

students who were capable of such indecencies.

Under the circumstances the course followed by the

Principal was a wise one. The Committee whose

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integrity could not be impeached, collected and

sifted the evidence given by the girls. Thereafter

the students definitely named by the girls were

informed about the complaint against them and the

charge. They were given an opportunity to state

their case. We do not think that the facts and

circumstances of this case require anything more to

be done.”

(emphasis supplied)

In Avinash Nagra Vs. Novodaya Vidyalaya Samiti & Ors.

7

, the

Supreme Court also observed that in the facts and circumstance of the

case, the conduct of the appellant was unbecoming that of a teacher and

held that dispensing with a regular enquiry under the rules and denial of

cross-examination was legal and not vitiated by violation of the principles

of natural justice. It was found that the appellant, who was a Post

Graduate teacher, went to the girls' hostel at 10:00 p.m. in the night and

made sexual advances to a girl and when she ran away from his presence,

he pursued her to the room where she locked herself. A report was

submitted to the Director who found the appellant not worthy to be a

teacher in the Institution. It is in this context that the Supreme Court

observed that dispensing with a regular enquiry and denial of cross-

examination did not vitiate the enquiry on the ground of violation of

principles of natural justice. The observations are as follows:-

“12.…............. Therefore, greater responsibility is

thrust on the management of the schools and

colleges to protect the young children, in

particular, the growing up girls, to bring them up

in disciplined and dedicated pursuit of excellence.

The teacher who has been kept in charge, bears more

added higher responsibility and should be more

exemplary. His/her character and conduct should be

more like Rishi and as loco parentis and such is the

7(1997) 2 SCC 534

17

duty, responsibility and charge expected of a teacher.

The question arises: whether the conduct of the

appellant is befitting with such higher responsibilities

and as he by his conduct betrayed the trust and

forfeited the faith whether he would be entitled to the

full-fledged enquiry as demanded by him? The fallen

standard of the appellant is the tip of the iceberg in the

discipline of teaching, a noble and learned profession;

it is for each teacher and collectively their body to

stem the root to sustain the faith of the society reposed

in them. Enquiry is not a panacea but a nail on the

coffin. It is self-inspection and correction that is

supreme. ….......................... Under those

circumstances, the conduct of the appellant is

unbecoming of a teacher much less a loco parentis

and, therefore, dispensing with regular enquiry

under the rules and denial of cross-examination

are legal and not vitiated by violation of the

principles of natural justice.”

(emphasis supplied)

In Apparel Export Promotion Council (supra), the Supreme

Court also explained what constitutes sexual harassment and that it is

incompatible with the dignity and honour of a female and needs to be

eliminated. The Supreme Court also pointed that there can be no

compromise on such violations and any sympathy shown in such cases

would have a demoralizing effect on women. Though the observations

were made in connection with sexual harassment to a woman at work

place, they would equally apply to sexual misconduct by teachers. The

observations of the Supreme Court are as follows:-

“25.An analysis of the above definition shows that

sexual harassment is a form of sex discrimination

projected through unwelcome sexual advances,

request for sexual favours and other verbal or physical

conduct with sexual overtones, whether directly or by

implication, particularly when submission to or

rejection of such a conduct by the female employee

was capable of being used for effecting the

employment of the female employee and unreasonably

18

interfering with her work performance and had the

effect of creating an intimidating or hostile working

environment for her.

26.There is no gainsaying that each incident of

sexual harassment at the place of work results in

violation of the Fundamental Right to Gender Equality

and the Right to Life and Liberty - the two most

precious Fundamental Rights guaranteed by the

Constitution of India. As early as in 1993 at the 1LO

Seminar held at Manila, it was recognized that sexual

harassment of women at the work place was a form of

'gender discrimination against women'. In our opinion,

the contents of the fundamental rights guaranteed in

our Constitution are of sufficient amplitude to

encompass all facets of gender equality, including

prevention of sexual harassment and abuse and the

courts are under a constitutional obligation to protect

and preserve those fundamental rights. That sexual

harassment of a female at the place of work is

incompatible with the dignity and honour of a female

and needs to be eliminated and that there can be no

compromise with such violations, admits of no debate.

…....................

28.The observations made by the High Court to the

effect that since the respondent did not "actually

molest" Miss X but only "tried to molest" her and,

therefore, his removal from service was not warranted

rebel against realism and lose their sanctity and

credibility. …............................ The High Court

overlooked the ground realities and ignored the fact

that the conduct of the respondent against his junior

female employee, Miss X, was wholly against moral

sanctions, decency and was offensive to her modesty.

Reduction of punishment in a case like this is bound to

have demoralizing effect on the women employees

and is a retrograde step. There was no justification for

the High Court to interfere with the punishment

imposed by the departmental authorities. The act of

the respondent was unbecoming of good conduct and

behavior expected from a superior officer and

undoubtedly amounted to sexual harassment of Miss

X and the punishment imposed by the appellant was,

thus commensurate with the gravity of his

objectionable behavior and did not warrant any

interference by the High Court in exercise of its power

of judicial review.”

19

What has been emphasised by the Supreme Court in the aforesaid

decisions is that rules of 'natural justice' cannot remain the same under all

conditions and that girls, in cases of sexual harassment, may not give

evidence if a regular enquiry is held. Under since circumstance, the

Committee of teachers that is constituted can record statements and no

opportunity of cross-examination is required to be given nor a copy of the

enquiry report is required to be supplied. The dispensation of a regular

enquiry, therefore, under such circumstance does not result in violation of

the principles of natural justice.

It is, therefore, not possible to accept the contention of the

petitioner that a detailed disciplinary enquiry was required to be

conducted. The petitioner was aware of the allegation that had been made

against him as is clear from the reply that he had submitted and had been

given an ample opportunity to state his defence when he appeared before

the Committee. The petitioner gave his statement before the Committee

which constituted of three senior teachers of the Institute. The Committee

also recorded the statements of the complainant and the other persons to

whom the complainant had narrated the incident soon after it happened.

The witnesses included Dr. Rajesh Kumar, Associate Professor and Dr.

P.R. Maiti to whom the complainant had narrated the whole incident soon

after it happened. The complaint was also filed by the complainant on the

same day i.e. 18 April 2014.

20

In Hira Nath Mishra (supra), the Supreme Court observed that the

responsibility of an Institution towards its girl students was very great and

it was not necessary to hold a detailed enquiry in matters relating to a

complaint made by girl students regarding sexual misconduct. The

Enquiry Committee that had been constituted by the Principal of the

Institute also consisted of three teachers of the College which had

recorded the statements and thereafter had submitted its report to the

Principal who passed the order expelling the male students. The Supreme

Court observed that in cases where girl students are involved, it is not

necessary to hold a detailed enquiry or provide an opportunity to cross

examine the witnesses. The Supreme Court also observed that in such

circumstances it was not necessary to serve a copy of the enquiry report

to the male students against whom the allegations had been made by the

girl students. This is also what was observed subsequently by the

Supreme Court in Avinash Nagra (supra). It is, therefore, not possible to

accept the contention of the petitioner that the principles of natural justice

have been violated in any manner.

The contention of the petitioner that the Institute did not have the

authority to discontinue the re-employment of the petitioner and the

University alone could have dispensed with his services cannot also be

accepted. As noticed above, the erstwhile Institute of Technology of the

University became the Indian Institute of Technology (Banaras Hindu

University) with effect from 29 June 2012 under the provisions of the

Institutes of Technology (Amendment) Act, 2012. It was the Institute that

21

granted him re-employment by letter dated 10/11 December 2013 for a

further period of one year with effect from 30 July 2013. The Institute

alone and not the University, therefore, could have dispensed with his

services, which it did.

Thus, for all the reasons stated above, the order passed by the

Chairperson of the Board of Directors of the Institute to discontinue the

re-employment of the petitioner as a Professor in the Department of Civil

Engineering of the Institute does not suffer from any illegality so as to

call for interference of the Court under Article 226 of the Constitution.

The writ petition is, accordingly, dismissed.

Date:19.02.2015

SK

(Dilip Gupta, J.)

(Anjani Kumar Mishra, J.)