Page No.# 1/10 GAHC010085672024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2316/2024 DR. NISHA TOTEJA WIFE OF DR. S.ROHIT, FLAT NO. 203, TYPE 4 QUARTER, AIIMS, GUWAHATI, CHANGSARI, KAMRUP, ASSAM- 781101 VERSUS UNION OF INDIA AND 7 ORS REPRESENTED BY SECRETARY TO MINISTRY OF HEALTH AND FAMILY WELFARE, ROOM NO. 348, A WING, NIRMAN BHAVAN, NEW DELHI- 110011 2:THE ALL-INDIA INSTITUTE OF MEDICAL SCIENCES REPRESENTED BY ITS DIRECTOR GUWAHATI CHANGSARI ASSAM PIN- 781101 3:THE PRESIDENT ALL INDIA INSTITUTE OF MEDICAL SCIENCES GUWAHATI CHANGSARI ASSAM PIN- 781101 4:THE INTERNAL COMPLAINTS COMMITTEE AIIMS GUWAHATI REPRESENTED BY ITS CHAIRPERSON GUWAHATI CHANGSARI ASSAM PIN- 781101 Page No.# 2/10 5:DR. ASHOK PURANIK THE EXECUTIVE DIRECTOR ALL INDIA INSTITUTE OF MEDICAL SCIENCES GUWAHATI CHANGSARI ASSAM PIN- 781101 6:DR. JAYA SHANKAR KAUSHIK HOUSE NO. 002 TYPE 4 FACULTY QUARTERS AIIMS GUWAHATI CHANGSARI KAMRUP ASSAM- 781101 7:THE CHAIRPERSON INTERNAL GRIEVANCE REDRESSAL COMMITTEE ALL INDIA INSTITUTE OF MEDICAL SCIENCES GUWAHATI CHANGSARI ASSAM PIN- 781101 8:THE GOVERNING BODY ALL INDIA INSTITUTE OF MEDICAL SCIENCES GUWAHATI CHANGSARI ASSAM PIN- 78110 B E F O R E Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI JUDGMENT & ORDER Advocates for the petitioner : Shri K.N. Choudhury, Sr. Advocate Shri S.P. Sharma Advocates for respondents : Shri H. Gupta, learned C.G.C. for R. Nos. 1, 2, 3, 4, 7 and 8 Shri D.S. Bhattacharya, for R- 5 Shri R.B. Phookan for R -6. Page No.# 3/10 Date of hearing : 05.06.2025 Date of judgment : 05.06.2025 1. Considering the subject matter in question and as agreed to by the learned counsel for the parties, this writ petition is taken up for disposal at the admission stage itself. 2. The facts involved may be stated briefly in a nutshell. 3. The petitioner, who is working as an Assistant Professor in the Department of Paediatrics at All India Institute of Medical Sciences (AIIMS), Guwahati had filed a written complaint on 17.08.2023 of sexual harassment at work place against the respondent no. 6. It is the case of the petitioner that even after such complaint, the harassment had continued and on the contrary, the respondent no. 5 had issued a warning letter to the petitioner. 4. Be that as it may, the matter was enquired by an Internal Complaint Committee (hereinafter ICC) wherein the respondent no. 6 was indicted. However, vide the impugned communication dated 04.04.2024 issued by the Administrative Officer which is with the approval of the Competent Authority, the findings have not been accepted. It is the legality and validity of such decision which is the subject matter of this writ petition. 5. I have heard Shri K.N. Choudhury, learned Senior Counsel for the petitioner assisted by Shri S.P. Sharma, learned counsel. I have also heard Shri H. Gupta, learned C.G.C. appearing for the official respondents, namely, respondent nos. 1, 2, 3, 4, 7 and 8 including the AIIMS. I have also heard Shri D.S. Bhattacharya, learned counsel for the respondent no. 5 as well as Shri R.B. Page No.# 4/10 Phookan, learned counsel for the respondent no. 6. The contesting respondents have also filed affidavits-in-opposition and the petitioner had responded to the same by filing rejoinder affidavits. 6. The principal grounds of challenge, as elaborated by Shri Choudhury, the learned Senior Counsel, is violation of the statute holding the field and has raised the issue of jurisdiction. He has referred to the AIIMS Regulations of 2019, more specifically Schedule II thereof wherein the appointing authority and the Competent Authority to impose penalty have been provided. He has submitted that so far as the post in question is concerned, the appointing authority is the Governing Body and the authority competent to impose penalty is both the Governing Body and the President. He has drawn the attention of this Court to Section 10 of the AIIMS Act, 1956, which defines Governing Body. Under Section 10 (1), it has been provided that there would be a separate Governing Body for every Institute. Reference has also been made to Regulation 5 of the aforesaid Regulation regarding constitution of the Governing Body. 7. He has also referred to Regulation 2 (g) which defines President which means to be the President of the Institute nominated by the Central Government under Section 7 (1) of the Act. As per Section 7(1) of the Act, there is a provision that there would be a President for every Institute who shall be nominated by the Central Government from among the members other than the Director of the Institute. Since the aforesaid provisions of law would form an important part in the present lis, the same are extracted herein below: Regulation 2 (g) of the Regulations reads as follows: “ ‘President’ means the President of the Institute nominated by the Central Government under sub-section (1) of Section 7 of the Act.” Page No.# 5/10 Section 7(1) of the Act reads as follows: “There shall be a President of the Institute who shall be nominated by the Central Government from among the members other than the Director of the Institute.” 8. The learned Senior Counsel has submitted that the reference to the approval of the Competent Authority made in the impugned order dated 04.04.2024 is the Executive Director of AIIMS and this aspect has not been disputed. He has submitted that the provisions holding the field, more specifically Section 7 (1) of the Act clearly provides that the President can be any person from amongst the Members who can be nominated but cannot be the Director of the Institute and in the instant case the respondent no. 5 is the Executive Director and therefore is barred under the aforesaid provision to be nominated as the President. 9. Shri Choudhury, the learned Senior Counsel has also submitted that in the developments which had taken place after lodging of the complaint on 17.08.2023 followed by 18.10.2023, the conduct of the respondent no. 5 towards the petitioner has been found to be manifestly biased and in fact warning letters were also issued to her on 22.11.2023 which was the subject matter of consideration by this Court on 03.05.2024, 11.12.2024 in I.A. (Civil) 3800/2024 and 14.02.2025 in I.A. (Civil) No. 414/2025. He has again referred to the Schedule II of the Regulations as mentioned above and has submitted that the authority competent to impose penalty can be either the Governing Body or the President. He accordingly submits that while the impugned communication dated 04.04.2024 may be interfered with and the matter be remanded back to be decided by the appropriate authority strictly in accordance with law, if such decision is taken by the Governing Body, respondent no. 5 should be a part of Page No.# 6/10 the same. 10. Shri H. Gupta, learned C.G.C., on the other hand has submitted that the constitution of the ICC was itself not properly done and therefore, the report cannot be acted upon. On the aspect that the disciplinary authority should be either the Governing Body or the President, the learned C.G.C. has however not joined any issues advanced by the learned Senior Counsel for the petitioner who had contended that the Director / Executive Director is not the person which has been provided by the rules to act in such capacity. 11. Shri Bhattacharya, the learned counsel for the respondent no. 5 has submitted that all actions taken were bona fide and the allegations made against him of being biased are stoutly refuted. He has reiterated that he has acted in his official capacity in a fair manner so that the Act of 2013 in question is not misused. 12. Shri Phookan, the learned counsel for the respondent no. 6 has endorsed the submission of Shri Gupta, the learned counsel by contending that the constitution of the ICC and the report submitted have not been done in accordance with law and he was not given proper opportunity to defend himself. 13. The rival submissions have been duly considered and the materials placed before this Court including the statute holding the field have been carefully perused. 14. At the outset, this Court makes it clear that the present adjudication is only on the jurisdictional aspect concerning issuance of the impugned order dated 04.04.2024 and not on the merits of the allegations and counter allegations. 15. A perusal of the impugned communication dated 04.04.2024 would reveal Page No.# 7/10 that the report of the ICC has been rejected and there is no dispute to the fact that such communication has been said to be issued with the approval of the “Competent Authority”, who in this case is none but the Executive Director, i.e., the respondent no. 5. 16. The exposition of the provisions of the Act and the Regulations holding the field which has been done above, would make it clear that Section 7 (1) stipulates that the President can be nominated by the Central Government from among the Members other than the Director of the Institute. When there is a specific bar in the statute itself, that a Director of the Institute cannot be the President, the impugned communication clearly appears to have been done without jurisdiction. In this connection, the Schedule II of the Regulations of 2019 is to be referred as per which, the authority competent to impose penalty, so far as the post in question is concerned has been stated to be either the Governing Body or the President. If the President had taken the call in accordance with law, the matter would have been different. However, the same has been done by the Director who could not have taken the place of President in view of the clear bar imposed by Section 7 (1) of the Act. The other option is that the Governing Body can be the authority competent to impose penalty. As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 after the report is given by the ICC, it is for the Competent Authority under the rules to take a call on the aspect of the penalty. 17. At this stage, this Court has also taken into consideration, the concern expressed by the petitioner both in the present petition as well as the two connected IAs including IA (Civil) No. 414/2025. 18. This Court on 03.05.2024 had made an observation that no coercive action be taken against the petitioner. A similar protection was granted by this Page No.# 8/10 Court on 11.12.2024 passed in I.A. (Civil) No. 3800/2024 and on 14.02.2025 in I.A.(Civil) 414/2025 in which this Court has recorded that the facts involved was suggestive of malicious action. For ready reference, the relevant observations mentioned above are extracted herein below: Order dated 03.05.2024 in WP(C)/2316/2024 Heard Mr. S. P. Sharma, learned counsel for the petitioner. ... It is further provided that pending further orders as may be passed in the matter, on the instructions as now required to be received by Mr. Gupta, learned CGC is placed on record; it is directed that the petitioner, herein, shall be permitted to continue in her services in the Department of Trauma & Emergency and no coercive action shall be taken against the petitioner, till the returnable date. ...” Order dated 11.12.2024 in I.A. (Civil) 3800/2024 “... In the interim, considering the submission made by the learned Sr. counsel for the applicant and the order dated 03.05.2024 passed by this Court in W.P.(C) No. 2316/2024, it is directed that the respondent No. 5 & 7 shall not act on the complaint letter dated 22.05.2024 and 04.06.2024 till the next returnable date. It is also made clear that no coercive action shall be taken against the applicant till the next returnable date ...” Order dated 14.02.2025 in I.A.(Civil) 414/2025 ... 8. Such action and conduct on the part of the Executive Director, All India Institute Medical Sciences, Guwahati, in the backdrop of the litigation and order passed by this court, in the considered of this court is suggestive of malicious action. Therefore, subject to further deliberation and the Page No.# 9/10 responds that may be made by the respondents in the IA, as an ad- interim measure, it is provided that the warning dated 03.02.2025 shall remain suspended till the next date fixed.” 19. The learned counsel for the respondents have however categorically submitted that the warning letter dated 22.11.2023 had nothing to do with the present complaint and was an independent action. 20. Be that as it may, this Court is of the opinion that while the impugned communication dated 04.04.2024 is held to be unsustainable in the eyes of law as the same was issued by an authority without jurisdiction, the matter is to be remanded to the appropriate authority to take a call. However, in view of the developments and also taking into consideration, the observations made by this Court in the orders dated 03.05.2024, 11.12.2024 and 14.02.2025, it is provided that if the Governing Body assumes the role of the Disciplinary Authority, the respondent no. 5 should not be made a part of the same and his place be taken by any other officer of equivalent rank. The said directions have been made by invoking the doctrine of necessity so as to ensure the process is held in a fair and transparent manner which is the hallmark of Rule of Law. 21. It is however made clear that the present interference and remand has been made on the reasons mentioned above and without expressing any opinion on the inter se merits of the parties. 22. The competent authority is accordingly directed to complete the proceedings expeditiously and within an outer limit of 2 (two) months from today. It is further provided that while the Competent Authority would consider the matter, the stakeholders, namely, the petitioner and the respondent no. 6 be given adequate opportunity to represent themselves. At this stage, Shri Gupta, Page No.# 10/10 the learned C.GC. has submitted that OM dated 04.11.2022 is presently followed. It is needless to state that all action be taken strictly in accordance with law including the OM placed on record. 23. It is also provided that till a final decision is taken, the interim order passed by this Court on 03.05.2024, 11.12.2024 and 14.02.2025 shall remain operative. 24. Writ petition stands allowed in the manner indicated above. 25. Cost made easy. JUDGE Comparing Assistant