CASE BREIF

Supreme Court of India

Aureliano Fernandes vs State Of Goa . on 12 May, 2023

CASE DETAILS:
 Case Name. Aureliano Fernandes vs State Of Goa . on 12 May, 2023
 Case number: Civil Appeal No. 2482 of 2014
 Court: Supreme Court of India
 Petitioner(s): AURELIANO FERNANDES
 Respondent(s): STATE OF GOA AND OTHERS
 Date of Judgement: 12 May, 2023
 Author: Hima Kohli
 Bench: Hima Kohli A.S. Bopanna
INTRODUCTION: The POSH Act is a legislation enacted by the Government of India in
2013 to address the issue of sexual harassment faced by women in the workplace.
The Act aims to create a safe and conducive work environment for women and provide
protection against sexual harassment.
The PoSH Act defines sexual harassment to include unwelcome acts such as physical contact
and sexual advances, a demand or request for sexual favours, making sexually coloured
remarks, showing pornography, and any other unwelcome physical, verbal, or non-verbal
conduct of a sexual nature.
FACTS:
 The Committee called the appellant for a hearing on 27th April, 2009. It was alleged
by the appellant that the deposition of all the complainants including the witness
named by him were recorded while he was made to wait outside the Committee room.
He was called later on and the Committee recorded his statement. Even on the next
hearing, on 28th April, 2009, a similar procedure was adopted by the Committee. On
30th April, 2009, the appellant received a notice from the Committee enclosing
therewith another complaint of sexual harassment received against him to which he
was directed to respond and present himself on 6th May, 2009. Vide letter 2nd May
2009, the appellant sought more time to submit a reply to the additional complaint and
permission to engage an Advocate to appear for him before the Committee.
 Vide letter dated 8th May, 2009, the appellant objected to the inquiry being conducted
by the Committee on a complaint12 received from an ex-student of the respondent no.
2 – University on the ground that she was neither a student nor an employee of the
University. Additionally, he asked for a copy of the said complaint, besides the
statement of deposition that had already been furnished to him.
 The appellant wrote a letter dated 13th May, 2009 to the Committee seeking some
time to appear before it on a plea that he was admitted in the hospital with a severe
back- ache. Vide notice dated 14th May, 2009, the Committee directed the appellant
to appear before it on 19th May, 2009 for recording his deposition and for submitting
 his written reply to the fresh deposition of the other complainant. Further extension of
time, as requested, was however declined by the Committee.
 In the meantime, vide letter dated 13th May, 2009, the appellant applied to the
respondent no.2 – University seeking voluntary retirement on health grounds.
However, the said application was withdrawn by him on 18th May, 2009. On the same
date, an advocate engaged by the appellant’s brother issued a notice to the respondents
no.2 and Signed on 27th April, 2009
 This was followed by issuance of a Memorandum21 by the Vice-Chancellor of the
respondent no. 2 – University on behalf of the EC informing the appellant that in its
meeting conducted on 28th January, 2010, the EC had accepted the report of the
Committee and decided that he was unfit to be retained in service in view of the
gravity of the charges levelled against him. Proposing to impose a major penalty of
dismissal Dated 17th February, 2010 CIVIL APPEAL NO. 2482 of 2014 thereby
disqualifying him from future employment as contemplated under the Rules22, the
appellant was granted two weeks to submit his representation.

Issues before the court:

 Challenge has been laid by the appellant to the judgment dated 15th March, 2012,
passed by the High Court of Judicature at Bombay Bench, at Goa, dismissing a writ
petition1 preferred by him against an order2 passed by the Executive Council3 of Goa
University (Disciplinary Authority) accepting the Report4 of the Standing Committee
for Prevention of Sexual Harassment at Work Place5 and imposing upon him, a major
penalty of dismissal from services and disqualification from the future employment
under Rule 11(IX) of the Central Civil Services (Classification, Control and Appeal)
Rules, 19656 which was duly upheld by the Governor and the Chancellor of Goa
University, being the Appellate Authority7
 .On 15th December, 2009, the Registrar of the respondent no. 2 - University informed
the appellant that the disciplinary proceedings initiated against him on the vide letter
17th September, 2009 (2013) 1 SCC 297 Dated 1st July, 2004 CCS (Conduct) Rules
CIVIL APPEAL NO. 2482 of 2014 recommendations made by the EC in its meeting
held on 12th December, 2009, stood terminated and the order appointing the Inquiry
Officer had also been withdrawn in the light of the order dated 26th April, 2004,
passed by the this Court in Medha Kotwal’s case holding that the report of the
Complaints Committee for Prevention of Sexual Harassment of Women at Workplace
shall be deemed to be an Inquiry Report under the CCS (CCA) Rules which shall be
binding on the disciplinary authority for initiating disciplinary action against the
government servant. Describing the decision taken by the EC on 14th June, 2009 of
appointing an Inquiry Officer to inquire into the charges framed against the appellant
as inadvertent, the Registrar informed the appellant that the disciplinary authority will
decide the further course of action against him under the extant rules.
 The audi alteram partem rule is not cast in a rigid mould and judicial decisions
establish that it may suffer situational modifications. The core of it must, however,
remain, namely, that the person affected must have a reasonable opportunity of being
heard and the hearing must be a genuine hearing and not an empty public relations
 exercise. That is why Tucker, L.J., emphasised in Russel v. Duke of Norfolk45 that
"whatever standard of natural justice is adopted, one essential is that the person
concerned should have a reasonable opportunity of presenting his case". What
opportunity may be regarded as reasonable would necessarily depend on the practical
necessities of the situation. It may be a sophisticated full-fledged hearing or it may be
a hearing which is very brief and minimal : it may be a hearing prior to the decision or
it may even be a post- decisional remedial hearing. The audi alteram partem rule is
sufficiently flexible to permit modifications and variations to suit the exigencies of
myriad kinds of situations which may arise
Laws related to the case:
 The principle of reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14” The emphasis was on the
Court‘s attempt to expand the reach and ambit of the fundamental rights guaranteed in
the Constitution rather than attenuate their meaning 1949.
 the courts would have to decide if the procedure that was followed infringed upon the
right to a fair and reasonable procedure, independent of the outcome. In compliance
with this line of thought, the courts have read the principles of natural justice into an
enactment to save it from being declared unconstitutional on procedural grounds.
Secondly, natural justice principles breathe reasonableness into the procedure.
Responding to the argument that the principles of natural justice are not static but are
capable of being moulded to the circumstances, it was held that the core of natural
justice guarantees a reasonable procedure which is a constitutional requirement
entrenched in Articles 14, 19 and 21. The facet of audi alterum partem encompasses
the components of notice, contents of the notice, reports of inquiry, and materials that
are available for perusal. While situational modifications are permissible, the rules of
natural justice cannot be modified to suit the needs of the situation to such an extent
that the core of the principle is abrogated because it is the core that infuses procedural
reasonableness. The burden is on the applicant to prove that the procedure that was
followed (or not followed) by the adjudicating authority, in effect, infringes upon the
core of the right to a fair and reasonable hearing.”
Analysis of the court:
 the instant case, though the Committee appointed by the Disciplinary Authority did
not hold an inquiry strictly in terms of the step-by-step procedure laid down in Rule
14 of the CCS (CCA) Rules, nonetheless, we have seen that it did furnish copies of all
the complaints, the depositions of the complainants and the relevant material to the
appellant, called upon him to give his reply in defence and directed him to furnish the
list of witnesses that he proposed to rely on. Records also reveal that the appellant had
furnished a detailed reply in defence. He had also submitted a list of witnesses and
depositions. This goes to show that he was CIVIL APPEAL NO. 2482 of 2014 well-
acquainted with the nature of allegations levelled against him and knew what he had
to state in his defence. Given the above position, non-framing of the articles of charge
cannot be said to be detrimental to the interest of the appellant.
 For the above reasons, the appellant cannot be faulted for questioning the process and
its outcome. There is no doubt that matters of this nature are sensitive and have to be
handled with care. The respondents had received as CIVIL APPEAL NO. 2482 of
2014 many as seventeen complaints from students levelling serious allegations of
sexual harassment against the appellant. But that would not be a ground to give a
complete go by to the procedural fairness of the inquiry required to be conducted,
more so when the inquiry could lead to imposition of major penalty proceedings.
When the legitimacy of the decision taken is dependent on the fairness of the process
and the process adopted itself became questionable, then the decision arrived at
cannot withstand judicial scrutiny and is wide open to interference. It is not without
reason that it is said that a fair procedure alone can guarantee a fair outcome. In this
case, the anxiety of the Committee of being fair to the victims of sexual harassment,
has ended up causing them greater harm.
 It is disquieting to note that there are serious lapses in the enforcement of the Act even
after such a long passage of time. This glaring lacuna has been recently brought to the
fore by a National daily newspaper that has conducted and published a survey of 30
national sports federations in the country and reported that 16 out of them have not
constituted an ICC till date. Where the ICC have been found to be in place, they do
not have the stipulated number of members or lack.
 Services under the Union and the States are governed under Part XIV of the
Constitution. Article 309 of the Constitution that provides for recruitment and
conditions of service of persons serving the Union or a State, Article 310 that refers to
the tenure of office of persons serving the Union or a State and Article 311 that deals
with dismissal, dated 17th February, 2010 CIVIL APPEAL NO. 2482 of 2014 removal
or reduction in rank of persons employed in civil capacities under the Union or a State
are inter-linked and “form an integrated whole, there being an organic and thematic
unity running through them”37. CIVIL APPEAL NO. 2482 of 2014 the mandatory
external member. This is indeed a sorry state of affairs and reflects poorly on all the
State functionaries, public authorities, private undertakings, organizations and
institutions that are duty bound to implement the PoSH Act in letter and spirit. Being a
victim of such a deplorable act not only dents the self- esteem of a woman, it also
takes a toll on her emotional, mental and physical health.
 It is often seen that when women face sexual harassment at the workplace, they are
reluctant to report such misconduct. Many of them even drop out from their job. One
of the reasons for this reluctance to report is that there is an uncertainty about who to
approach under the Act for redressal of their grievance. Another is the lack of
confidence in the process and its outcome. This social malady needs urgent
amelioration through robust and efficient implementation of the Act. To achieve this,
it is imperative to educate the complainant victim about the import and working of the
Act. They must be made aware of how a complaint can be registered, the procedure
that would be adopted to process the complaint, the objective manner in which the
ICC/LC/IC is expected to function under the Statute, the nature of consequences that
the delinquent employee can be visited with if the complaint is found to be true, the
result of lodging a false or a malicious complaint and the remedies that may be
available to a complainant if dissatisfied
  Article 310 embodies the “Doctrine of Pleasure” and in the context of Government
servants, relates to their tenure of service. Article 310(1) makes the tenure of
Government servants subject to the pleasure of the President or the Governor of a
State except as expressly provided for by the Constitution. This Article is analogous to
the rights of the Crown in England where all public officers and servants of the
Crown are appointed at the pleasure of the Crown and their services can be terminated
at will, without assigning any cause41. That is the reason why the tenure of the
Government servant is subject to the pleasure of the President or the Governor of a
State, except as expressly provided for under the Constitution. All members of such
services who receive their stipend from the public exchequer, whether at the top of the
hierarchy or at the very bottom, are finally answerable to the public and expected to
discharge their duties responsibly, efficiently, effectively and above all, for the higher
good of the public. It can, therefore, be seen that though the origin of Government
servants may be contractual, once appointed to the post or office, they acquire a status
and their rights and obligations are no longer determined by the consent of both the
parties, but are governed by the Statute or Statutory Rules42.
 . Principles of natural justice that are reflected in Article 311, are not an empty
incantation. They form the very bedrock of Article 14 and any violation of these
principles tantamounts to a violation of Article 14 of the Constitution. Denial of the
principles of natural justice to a public servant can invalidate a decision taken on the
ground that it is hit by the vice of arbitrariness and would result in depriving a public
servant of equal protection of law.
 Article 14, often described as the ‘Constitutional Guardian’ of the principles of natural
justice, expressly forbids the State, as defined in Article 12, from denying to any
person, equality before the law or equal protection of the laws. Article 14 provides an
CIVIL APPEAL NO. 2482 of 2014 express guarantee of equality before the law to all
persons and extends a protection to them against discrimination by any law. Article
13(3)(a) defines law to include any ordinance, order, bye-law, rule, regulation,
notification, custom or usages having in the territory of India, the force of law. Thus,
principles of natural justice guaranteed
 under Article 14, prohibit a decision-making adjudicatory authority from taking any
arbitrary action, be it substantive or procedural in nature. These principles of natural
justice, that are a natural law, have evolved over a period of time and been
continuously refined through the process of expansive judicial interpretation. H. THE
TWIN ANCHORS : NEMO JUDEX IN CAUSA SUA AND AUDI ALTERAM
PARTEM

Reasoning of the court:

 The rule of natural justice with which we are concerned in these appeals and writ
petitions, namely, the audi alteram partem rule, in its fullest amplitude means that a
person against whom an order to his prejudice may be passed should be informed of
the allegations and charges against him, be given an opportunity of submitting his
explanation thereto, have the right to know the evidence, both oral or documentary, by
which the matter is proposed to be decided against him, and to inspect the documents
which are relied upon for the purpose of being used against him, to have the witnesses
 who are to give evidence against him examined in his presence and have the right to
cross- examine them, and to lead his own evidence, both oral and documentary, in his
defence. The process of a fair hearing need not, however, conform to the judicial
process in a Court of law, because judicial adjudication of causes involves a number
of technical rules of procedure and evidence which are unnecessary and not required
for the purpose of a fair hearing within the meaning of audi alteram partem rule in a
quasi-judicial or administrative inquiry.
 If we look at clause (2) of Article 311 in the light of what is stated above, it will be
apparent that that clause is merely an express statement of the audi alteram partem
rule which is implicitly made part of the guarantee contained in Article 14 as a result
of the interpretation placed upon that article by recent decisions of this Court. Clause
(2) of Article 311 requires that before a government servant is dismissed, removed or
reduced in rank, an inquiry must be held in which he is informed of the charges
against him and given a reasonable opportunity of being heard in respect of those
charge
 As can be seen from the above, when the misconduct relates to a complaint of sexual
harassment at the work place, the Complaints Committee constituted by the
respondent no.2-University to examine such a complaint, dons the mantle of the
inquiring authority and is expected to conduct an inquiry in accordance with the
procedure.
 Then the employer itself was oblivious to the remit of the Committee and the
Committee remained under the very same impression having described its
proceedings as fact-finding in nature, it was all the more incumbent for the
respondents to have paused on receiving the Report of the First Committee and verify
the legal position before taking the next step. In all this back and forth, it was the
procedure prescribed under Rule 14 for conducting an inquiry of sexual harassment at
the workplace that came to be sacrificed at the alter of expeditious disposal, which
can neither be justified nor countenanced.
 CIVIL APPEAL NO. 2482 of 2014 prescribed in the rules, as far as may be
practicable. The use of the expression “as far as is practicable” indicates a play in the
joints available to the Complaints Committee to adopt a fair procedure that is feasible
and elastic for conducting an inquiry in a sensitive matter like sexual harassment at
the workplace, without compromising on the principles of natural justice. Needless to
state that the fact situation in each case will vary and therefore no set standards or
yardstick can be laid down for conducting the inquiry in complaints of this nature.
However, having regard to the serious ramifications with which the delinquent
employee may be visited at the end of the inquiry, any discordant note or
unreasonable deviation from the settled procedures required to be followed, would
however strike at the core of the principles of natural justice, notwithstanding the final
outcome.
CONCLUSION:
 Itcan be seen that the journey from Vishaka’s case (supra) that acted
as a springboard and sowed the seeds of future legislation by
structuring Guidelines to deal with cases of sexual harassment,
blossomed into a comprehensive legislation with the enactment of
 the PoSH Act and Rules. At the same time, however, women centric
the Guidelines and the Act may have been, they both recognize the
fact that any inquiry into a complaint of sexual harassment at the
workplace must be in accordance with the relevant rules and in line
with the principles of natural justice. The cardinal principle required
to be borne in mind is that the person accused of misconduct must
be informed of the case, must be supplied the evidence in support
thereof and be given a reasonable opportunity to present his version
before any adverse decision is taken. Similarly, the concerned
employer is also expected to act fairly and adopt a procedure that is
just, fair and reasonable. The whole purpose is to breathe
reasonableness into the procedural regime. But, the test of
reasonableness cannot be abstract.
 It has to be pragmatic and grounded in the realities of the facts and
circumstances of a case. When conducting an inquiry, it is the duty
of the Inquiring Authority to proceed in a manner that is visibly free
CIVIL APPEAL NO. 2482 of 2014 from the taint of arbitrariness,
unreasonableness or unfairness. An inquiry that can culminate into
imposition of a major penalty like termination of service of an
employee, must doubly conform to a just, fair and reasonable
procedure. Any displacement of the principles of natural justice can
only be in exceptional circumstances, as contemplated in the proviso
to Article 311(2) of the Constitution of India and not otherwise.
Wherever the rules are silent, principles of natural justice must be
read into them and a hearing be afforded to the person who is
proposed to be punished with a major penalty69.
 The four predominant purposes sought to be achieved by reading the
principles of natural justice into law and into the conduct of judicial
and administrative proceedings to achieve the underlying object of
securing fairness have been concisely expressed by this Court as an
assurance of a fair outcome by following the procedural Rules, an
assurance of equality in the proceedings, legitimacy of the decision
and decision- making authority thereby preserving the integrity of
the system and finally, with the idea of preserving the dignity of
individuals where citizens are treated with respect and the dignity
salutary this enactment may be, it will never succeed in providing
dignity and respect that women deserve at the workplace unless and
until there is strict adherence to the enforcement regime and a
proactive approach by all the State and non-State actors.
 If the working environment continues to remain hostile, insensitive
and unresponsive to the needs of women employees, then the Act
will remain an empty formality. If the
authorities/managements/employers cannot assure them a safe and
secure work place, they will fear stepping out of their homes to
make a dignified living and exploit their talent and skills to the hilt.
It is, therefore, time for the Union Government and the State
 Governments to take affirmative action and make sure that the
altruistic object behind enacting the PoSH Act is achieved in real
terms.
 O. DIRECTIONS they deserve in a society governed by the Rule of
law