JUDGMENT

N. Paul Vasanthakumar, J.:— This writ appeal is directed against the order of the learned single Judge dated 21.4.2010 made in W.P(MD) No. 1132 of 2010, wherein the learned single Judge set aside the order of termination passed against the first respondent, by the second respondent management on 2.12.2005 and directed the second respondent management to reinstate the first respondent in service with all consequential benefits, granting liberty to the first respondent to proceed with the matter in accordance with law.

2. The brief facts necessary for disposal of this writ appeal are as follows:

(a) The first respondent joined in the second respondent College in the year 1978 as Assistant Professor in Economics Department and he was promoted as Professor in the year 1988. In the year 1999 he was selected and appointed as Principal of the second respondent College. According to the first respondent, the appellant herein mishandled the funds collected in connection with the College function and she was called upon to submit her explanation. Due to the same, the appellant made allegations against the first respondent including sexual harassment at the hands of the first respondent.

(b) A charge memo was issued to the first respondent by the management on 30.8.2003 An Enquiry Officer was appointed on 8.9.2003, who submitted his report on 5.12.2003 On 12.12.2003 a show cause notice was issued by the Governing body of the second respondent College proposing punishment of removal from service. The first respondent filed W.P No. 37797 of 2003 and this Court by order dated 24.6.2005 quashed the show cause notice and granted liberty to the Governing body to proceed from the stage where the mistake had crept in.

(c) Thereafter fresh show cause notice dated 1.7.2005 along with enquiry report was issued. According to the first respondent, without furnishing copies of certain exhibits, which were sought for to submit proper explanation, an order of removal was passed on 2.12.2005 The said order was challenged before this Court in W.P No. 11618 of 2005 on the ground that the group of persons who passed the impugned order dated 2.12.2005, is not competent as the term of the Governing body constituted on 5.7.2002 was over by 4.7.2005 and one Mrs. Nazneen was appointed as Secretary and Correspondent for the day-to-day administration of the College.

(d) In the writ petition filed in W.P No. 10569 of 2005 this Court issued a direction to the Government to constitute a Governing body within four weeks and thereafter the Governing body was constituted on 25.6.2006 The newly constituted Governing body passed a resolution on 29.5.2006 and ordered to reinstate the first respondent with a direction to the first respondent to withdraw the writ petition filed questioning the removal order dated 2.12.2005

(e) The first respondent was reinstated, however, W.P No. 7658 of 2007 was filed by one old student of the College by way of Public Interest questioning the order of reinstatement. The appellant herein during pendency of the said writ petition filed W.P No. 9491 of 2007 and both the writ petitions were heard by the Division Bench of this Court along with the writ petition filed by the first respondent in W.P No. 6735 of 2008, wherein the first respondent has challenged the order of the management dated 21.7.2008 accepting the voluntary retirement request and prayed for reinstatement with continuity of service with all consequential benefits.

(f) The above writ petitions were heard by the Division Bench of this Court and the same were disposed of on 30.9.2009 The Division Bench held that W.P No. 7658 of 2007 filed by a former student by way of Public Interest Litigation is not maintainable as the issue relates to service matter. The writ petition filed by the appellant herein viz., W.P No. 9491 of 2007 was considered at length by the Division Bench and the said writ petition was allowed with cost of Rs. 15,000/- payable by the first respondent and Rs. 10,000/- payable by the second respondent to the appellant herein. W.P No. 9491 of 2007 challenging the acceptance of voluntary retirement was dismissed holding that the request of withdrawal of voluntary retirement application was rightly rejected by the College management.

(g) The common order passed in W.P Nos. 9491 of 2007, 6735 of 2008 was challenged before the Honourable Supreme Court by filing S.L.P Nos. 35065 and 35066 of 2009 and the Honourable Supreme Court dismissed the said SLPs by order dated 25.1.2010 The Supreme Court on the plea made by the learned Senior Counsel for the first respondent, taking note of the submission made by the counsel stating that the writ petition challenging the order of removal dated 2.12.2005 was withdrawn in view of the order of reinstatement passed on 29.5.2006 and the said order of reinstatement having been set aside, granted liberty to the first respondent to renew his challenge to the order dated 2.12.2005 in accordance with law.

(h) The first respondent in spite of the dismissal of the SLP filed a review petition before this Court on 28.6.2010 and challenged the order of the Division Bench made in W.P No. 9491 of 2007 and also filed M.P No. 1 of 2010 praying condonation of delay of 218 days in filing the review petition. In the said application, during the course of the arguments, the learned counsel for the first respondent submitted that he is not pressing the petition since he is inclined to pursue his remedy in the “writ appeal itself”. The Division Bench recorded the said submission and endorsement and dismissed M.P No. 1 of 2010 in Review SR. No. 31506 of 2010 by order dated 22.12.2010 and also rejected the review application in SR stage itself.

(i) After disposal of the SLPs, immediately the first respondent filed W.P No. 1132 of 2010 on 28.1.2010 and challenged the order of removal order passed by the second respondent dated 2.12.2005 and prayed for reinstatement with all consequential benefits. The said writ petition is allowed by the learned single Judge on the ground that sexual harassment against a lady employee can be gone into only by the Committee constituted as per the Judgment of the Supreme Court in Visaka v. State of Rajasthan reported in (1997) 6 SCC 241 and the case reported in (2009) 2 SCC 210 (D.S Grewal v. Vimmi Joshi). The said order is challenged in this writ appeal by the appellant, who was impleaded as second respondent in the writ petition.

3. When the writ appeal was taken up for hearing the learned counsel for the first respondent submitted that the first respondent reached the age of superannuation on 31.8.2010 and if the writ appeal is dismissed, the first respondent will get only terminal benefits as reinstatement is not possible after 31.8.2010

4. Mr. T.R Rajagopalan, learned Senior Counsel for the appellant submitted that the Division Bench of this Court having already gone into the matter in depth including the allegations of sexual harassment given to the appellant and another staff member by the first respondent; proper enquiry having been conducted by the Enquiry Officer, who was none other than a retired District Judge; the charges being not only sexual harassments but also misappropriation, insubordination, etc.; and noticing the seriousness of the charges proved, quashed the order of reinstatement passed earlier by the second respondent and restored the order of removal from service, which was confirmed by the Supreme Court by dismissing the Special Leave Petitions. The learned Senior Counsel further submitted that merely because liberty was given by the Honourable Supreme Court to challenge the order of removal from service dated 2.12.2005, the learned Judge ought not to have set aside the order on hypertechnical ground without even referring to the order passed by the Division Bench, which was confirmed by the Supreme Court and the said order is liable to be set aside. The learned Senior Counsel also submitted that out of the 31 charges framed against the first respondent, the Enquiry Officer found most of the charges proved, except Charge Nos. 4, 10 to 15, 23 and 25, and only first nine charges relate to harassment including sexual harassment towards the appellant. All other charges relate to misuse of power, insubordination, committing loss to the management and misappropriation. The learned Senior Counsel also submitted that the learned single Judge, while ordering the impleading petition, filed in the writ petition ought to have granted time to the appellant to file counter affidavit and without giving time to file counter affidavit the writ petition was allowed, which has caused serious prejudice to the appellant, particularly when she is the victim at the hands of the first respondent, which was found proved not ony during the enquiry but also by the Division Bench of this Court in the decision reported in 2010 WLR 1 (M.A Asharaff Ali v. The Secretary to Government) which was also not interfered with by the Supreme Court by dismissing the SLP. The learned Senior Counsel further submitted that even though liberty was granted to the first respondent to challenge the removal order dated 2.12.2005, the findings given by the Division Bench on merits was not set aside and no observation was made stating that all issues are left open to be decided when a fresh writ petition is filed. Merely because liberty was granted to challenge the order dated 2.12.2005, to agitate the matter in accordance with law, the appellant is not entitled to re-argue the matter for the issues which have been decided.

5. Mr. G.R Swaminathan, learned counsel for the first respondent on the other hand submitted that the Honourable Supreme Court having granted liberty to challenge the order dated 2.12.2005 the first respondent was justified in canvassing all the points in the writ petition, including the ground of not forming the Committee by the second respondent College to go into the alleged sexual harassment in terms of the order of the Supreme Court in Visaka's case, (1997) 6 SCC 241 during the course of the arguments. The learned single Judge followed the Supreme Court Judgment and allowed the writ petition as the allegations of sexual harassment in work place against a person can be gone into only by the Committee and the said plea raised by the first respondent was accepted by the learned Judge and the second respondent was granted liberty to proceed further and the appellant has no locus standi to file the writ appeal.

6. The learned counsel for the second respondent submitted that whatever order is passed by this Court the College will abide by the decision.

7. We have perused the documents, particularly the charge memo, enquiry report, removal order dated 2.12.2005, the Division Bench order of this Court reported in 2010 WLR 1 (cited supra), SLP order dated 25.1.2010 including the liberty stated therein. On perusal of the documents it is evident that 31 charges were framed against the first respondent by charge memo dated 30.8.2003 including sexual harassment towards the appellant and others; demand of bribe from one Seeni, Lecturer in Economics; incurred additional expenditure of Rs. 45,000/- without permission of the Governing body; registration of criminal case against the first respondent in Cr. No. 224 of 2001; forced and intimidated the teachers and non-teaching staff to go on strike on 23.12.2002; insubordination; unauthorised spending of a sum of Rs. 20,000/- and causing financial loss to the institution; used unparliamentary words against staff of the college; administrative lapse of not deducting TDS for the payments made to staff for the accounting years ending March 2002 and 2003, etc. As observed by the Division Bench in the judgment reported in 2010 WLR 1 (cited supra), out of 31 charges, nine charges alone have not been found proved and 22 charges have been found proved during the enquiry conducted by a retired District Judge. The enquiry report was perused by the Division Bench, which held that the enquiry was conducted properly and there are sufficient materials available to prove the charges including sexual harassments. The competency of the management to issue the order of removal dated 2.12.2005, which was questioned by the first respondent was also not accepted by the Division Bench holding that there cannot be any vacuum in the administration of the college merely because of the term of the Governing body came to an end. The Governing body has to perform the day-to-day administration until the new body takes over. It is specifically stated therein that when the report of the Enquiry Officer was received pointing out serious lapses on the part of the principal, the management had to act and could not fold its hands saying that it had no power. In paragraph 31 it is held that the management's decision dated 2.12.2005 cannot be faulted on that ground. The Division Bench relied on the Judgment of the Supreme Court reported in AIR 1999 SC 625: 1999 (2) LW 691 (Apparel Export Promotion Council v. A.K Chopra Chopra) wherein it was held that a departmental enquiry was held and the Enquiry Officer gave a finding that the respondent manifested in his actions, acts against moral sanctions in every conclusion of technical niceties did not withstand the test of decency and modesty. The interference shown by the Delhi High Court was set aside by the Supreme Court and upheld the departmental order of removal of respondent therein. It is also stated in the judgment of the Division Bench in paragraph 47 that the findings of the Enquiry Officer was very clear and the College management also accepted it and an order of removal from service was passed on 2.12.2005, which was reviewed subsequently and set aside. The same was found to be illegal and the removal order was found justified and the order of reinstatement was quashed.

8. As rightly contended by the learned Senior Counsel for the appellant the said findings as well as the decision upholding the order of removal from service and setting aside the order of reinstatement has become final between the parties as the SLPs were dismissed by the Honourable Supreme Court by order dated 25.1.2010 The removal order having been restored by the Division Bench of this Court, the first respondent cannot raise the same plea or new grounds during the course of the arguments in the subsequent proceedings as the findings given by the Division Bench insofar as the conduct of enquiry, acceptance of finding by the management and passing of removal order, have become final and the issue raised and decided once by the competent Court cannot be raised again in a subsequent writ petition by applying the principles of res judicata. The order of the Supreme Court in S.L.P(C) Nos. 35065 and 35066 of 2009 dated 25.1.2010 will not support the contentions raised by the learned counsel for the first respondent in any manner. The said order reads as follows:

“The SLPs are dismissed.

The petitioner submit that he had challenged the order of dismissal dated 2.12.2005 in a writ petition; that when the order dated 29.5.2006 was passed reinstating him, he withdrew the said writ petition as it became infructuous; that as the impugned order has set aside the order dated 29.05.2006, he is without remedy. This submission has no basis. As the petitioner states that he withdrew the writ petition challenging the order dated 2.12.2005 in view of the order dated 29.05.2006, having regard to the fact that the order dated 29.05.2006 is now set aside, it is open to the petitioner to renew his challenge to the order dated 2.12.2005 in accordance with law.”

9. The first respondent was charged for the delinquencies including misappropriation, apart from sexual harassments. Charge No. 20 relates to intimidating teachers and non-teaching staff to go on strike on 23.10.2002 being a member of MUTA (Madurai University Teachers Association); charge No. 22 relates to insubordination; charge No. 24 relates to payment of Rs. 20,000/- unauthorisedly to one Mr. Victor and causing financial loss to the institution; charge No. 27 relates to failure to maintain and prepare a balance sheet of the institution and thereby acted detrimental to the interest of the institution; charge No. 28 relates to failure to deduct Income Tax at source from the staff members for the accounting years ending 31.3.2002 and 31.3.2003 and violating the provisions of the Income Tax Act, 1961; and charge No. 30 relates to incurring expenses unauthorisedly without getting permission from the Governing body. All the above said charges apart from sexual harassments are found proved by the Enquiry Officer, which was also accepted by the management and having noticed the totality of the charges and gravity of the allegations, the Governing body in its resolution dated 2.12.2005 passed the order of removal from service. The learned single Judge following the decision of the Supreme Court reported in (2009) 2 SCC 210 (D.S Grewal v. Vimmi Joshi), on the alleged non-formation of the Committee to go into the sexual harassment in work place by the management, set aside the order of removal from service without referring/noticing the earlier order of the Division Bench made in W.P No. 9491 of 2007 dated 30.9.2009 which was also confirmed by the Supreme Court by dismissing S.L.P Nos. 35065 and 35066 of 2009 dated 25.1.2010

10. The action of the college management in not constituting the Committee will not absolve the first respondent in harassing the appellant, which was found proved in the enquiry as well as by this Court in the Judgment reported in 2010 WLR 1 (cited supra). The issue has already been decided and the termination order was found valid and ordered to be restored by setting aside the order of reinstatement. The said judgment has become final.

11. In the decision reported in (1997) 5 SCC 536 (Mafatlal Industries Ltd. v. Union of India) the principle of res judicata in writ petition is considered by the Honourable Supreme Court (9 Judges Bench) wherein it is held that the decision of the Court by concluded judgments are binding on the parties, unless the findings are reversed or nullified in the decision made in exercise of the judicial power and party to the proceedings are bound by the findings rendered on the same issue.

12. The decision relied on by the learned single Judge i.e, (2009) 2 SCC 210 (D.S Grewal v. Vimmi Joshi) is clearly distinguishable to the facts of this case. In the said decision the Honourable Supreme Court, noticing the directions issued by the Division Bench of the High Court of Uttaranchal at Nainital, giving direction to the Secretary, Ministry of Defence, Government of India and Chief of Army staff to take disciplinary action against two military officers regarding the allegation of sexual harassment on the basis of the letter and admission of both officers followed by the termination order. In that context the Honourable Supreme Court held that Complaints Committee was not constituted to find out the alleged misconduct of sexual harassment and therefore the High Court order was not correct. In paragraph 25 of the Judgment the Supreme Court further held as follows:

“25. The High Court, in our opinion, without getting the matter enquired into could not have opined that it was a clear-cut case of sexual harassment of the writ petitioner and on that basis directed initiation of a disciplinary action in the manner as has been done in para 13 noticed (supra).”

13. In Visaka's case, (1997) 6 SCC 241, the Honourable Supreme Court gave directions in paragraph 17 regarding sexual harassment cases in work place. Merely because the second respondent has not constituted the Complaints Committee, the first respondent cannot be absolved from the allegations of sexual harassments against the appellant and others. The appellant appeared before the Enquiry Officer and gave evidence. The first respondent cross-examined the appellant and after conducting fullfledged enquiry, the Enquiry Officer gave findings regarding sexual harassments against the appellant. The sexual harassments alleged against the first respondent by one Ms. Bansura, which was also enquired in connection with charge Nos. 6 and 7 and the same were also found proved. The same is the categorical finding given by the Division Bench in the decision cited supra. In such a situation, the order of the learned single Judge in applying the decision of the Supreme Court reported in (2009) 2 SCC 210 (cited supra) and set aside the order passed against the first respondent cannot be upheld.

14. In the decision reported in (1986) 1 SCC 100 (Forward Construction Co. v. Prabhat Mandal) the Honourable Supreme Court held that an adjudication is conclusive and binding not only as to the actual matter determined but as to every other matter, which the parties might and ought to have litigated and have had it decided. In paragraph 20 the Supreme Court held as follows:

“20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided.”

15. Same is the view taken by the Supreme Court in the decision reported in (1989) 3 SCC 351 (Kesho Ram & Co. v. Union of India) and (1999) 1 SCC 243 (Durg Rajnandgaon Grameen Bank v. Suresh Kumar Shukla).

16. Apart from the above issue, which has to be held in favour of the appellant, it is relevant to note that the disciplinary authority considered the proof of other charges i.e, other than sexual harassment and taking note of the overall view of the matter thought fit to pass an order or removal from service as a punishment and the same is also not taken note of by the learned single Judge while allowing the writ petition. Thus, the order of the learned single Judge setting aside the order of removal from service and ordering reinstatement with backwages and continuity of service of the first respondent is liable to be set aside.

17. Before parting with this case, we are constrained to take note of the situation which is prevailing in the second respondent College, where no Complaints Committee is constituted even after expiry of 13 years, the directions of the Honourable Supreme Court in Visaka's case, (1997) 6 SCC 241. In the said decision, the Honourable Supreme Court gave directions to constitute a Complaints Committee by the Employers/Organisation for redressal of the complaints made by the victim regarding sexual harassment, which will provide for specific protection for women from sexual harassment in workplace. The said Complaints Committee was directed to be constituted as an appropriate step to prevent sexual harassment by all employers/persons in charge of workplace, whether it is public or private sector. The said direction was issued by the Honourable Supreme Court under Article 32 of the Constitution of India, which is the law of the land and binding on all concerned under Article 141 of the Constitution of India, is not complied with by the second respondent College. Hence we direct the second respondent to constitute a Complaints Committee in the second respondent College as ordered by the Supreme Court, within a period of four weeks from the date of receipt of a copy of this order. We also direct that the State Government should ensure that in all workplaces where women are employed/appointed, the Government must see that the Complaints Committee is constituted and immediate and effective steps are to be taken by the State Government to see that the order of the Supreme Court in Visaka's case reported in (1997) 6 SCC 241 is complied with, in letter and spirit in all Offices/establishments throughout the State of Tamil Nadu, where women are employed. Since the State Government is not a party in this writ appeal, we direct the Registry of this Court to mark a copy of this judgment to the Chief Secretary, Government of Tamil Nadu, Chennai-9, for taking immediate and appropriate action in this regard.

18. In fine, the order of removal from service passed against the first respondent by resolution dated 2.12.2005 is upheld. The writ appeal is allowed and the writ petition is dismissed. There will be no order as to costs. Connected miscellaneous petition is closed.