Wednesday, 9 December 2015

Whether Officials accused of sexual harassment are entitled to get copy of complaint under RTI?

 Accused government officials are entitled to get a copy of the complaint against them even if the allegations pertain to sexual harassment, the Central Information Commission has held.
While pulling up Delhi University for withholding records related to a complaint filed by PG students at GB Pant Hospital in Delhi against Dr Arun Lata Agarwal on the grounds that allegations pertained to sexual harassment, CIC said it could not “locate” any such allegation against her.
“In spite of repeated deep scrutiny, the Commission could not locate any point of allegation related to sexual harassment,” Information Commissioner Sridhar Acharyulu said.
Acharyulu said the Central Public Information Officer should have seen the rules and FAQs circulated by the Department of Personnel and Training to understand that officers accused of sexual harassment were entitled to have a copy of the sexual harassment complaint against them.
“...the CPIO cannot deny the disclosure of the complaint related information or papers to the accused officer. It was not correct for CPIO to raise this kind of contention,” Acharyulu said.
The case related to allegations of harassment levelled against Aruna Agarwal and her husband Sanjay Agarwal by nine PG students after which she was sent back to the Centre by Delhi Government.
Through the RTI application, Aruna Agarwal had sought the information related to the complaint and the inquiry from the University which refused claiming disclosure may hamper physical security of complainants and that it is held in fiduciary capacity.
During the hearing before CIC, the CPIO representing the University claimed that students had filed complaints against the Agarwal couple alleging sexual harassment and as per the law details about complaint and related information could not be given to the two doctors.
After perusal of communication between National Commission of Women and the University, the Commissioner said the students were complaining against Sanjay Agarwal alleging that he caused mental harassment, created vicious working atmosphere and continued humiliating behaviour.
Acharyulu noted that M S Bhatia, HOD of Psychiatry, referred to representation consisting allegation of ‘sexual harassment’ against Sanjay Agarwal and sought immediate action to suspend him.
“Most of the allegations (levelled by PG students) are about harassment by husband and wife together. The allegations made in 23 points do not consist any specific sexual harassment allegation against either Sanjay (husband) or Aruna Agarwal (wife) individually.
“Every allegation was made against both jointly. The complaints did not reveal any allegation that both of them together caused any ‘sexual harassment’,” Acharyulu said.
He said CPIO was not correct in alleging that complaints by nine students (both male and female) against husband and wife were of sexual harassment.
“Even if it is assumed that the complaint of PG students against supervising couple of is of sexual harassment, the CPIO cannot deny the disclosure of the complaint related information or papers to the accused officer,” he said as he directed disclosure of complaint.
He said when the complaint of nine students cannot be considered as complaint of sexual harassment, the contention of the CPIO that it cannot be disclosed will totally fail.
“The Commission considers, after due study of the sealed file which includes recommendations of NCW, that the complaint is not in nature of sexual harassment and that is why it was not referred to the Committee against sexual harassment. No committee was constituted to inquire into this charge,” he said.
   CENTRAL INFORMATION COMMISSION

Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)
Information Commissioner
CIC/RM/A/2014/000313­SA
A.L. Agarwal Vs. Delhi University
Decision: 9.12.2015



FACTS: 
2.     The appellant is seeking information about a document issued by the Faculty of Medical
Sciences   No.FMDS/247/Complaint/PG/MAMC/2012/3766   dated   28­12­12     and   the   related
information.  Claiming that no information was received from the Public Authority, he approached
the Commission under 2nd appeal after exhausting the first appeal. 
PROCEEDING BEFORE THE COMMISSION :
3.  Dr. A. L. Agarwal, appellant filed RTI application dated 06.09.2013 seeking the following:
CIC/RM/A/2014/000313­SA Page 11. Certified copy of document:  FMDS/247/Complaint/PG/MAMC/2012/3766 dated 
28.12.2012.
2. Certified copy of all the correspondence/file noting in connection to  this
document.
3. Copy of the rules, under which this document has been issued.
4. Copy of the rules, which permits a medical teacher to be the thesis  guide   of
3 PGs every year.
4. Mr. Jay Chanda, Central Public Information Officer of the university replied through a letter
dated 27.09.2013, quoting the response of Dy. Registrar (Faculty of Medical Sciences) who said
that disclosure of such information would be inappropriate, as it would endanger the physical
safety of the complainants/accused. Further, such personal information is held by the University in
fiduciary relationship with the individuals concerned. Therefore, as per input of Deputy Registrar
(Faculty of Medical  Sciences), that the request of the applicant attracts section 8(1)(g) read with
section 8(1)(j) & (e), and as per advice of Deputy Registrar, CPIO has transferred the original
application to the PIO, National Commission for Women. The CPIO also furnished copy of letter
written by Deputy Registrar. 
5. Being unsatisfied, Dr. A. L. Aggarwal filed First Appeal on 19.10.2013. She disputed the
Deputy Registrar’s contention that section 8(1)(g), (j) & (e) of RTI Act would authorize them not to
disclose. She also questioned the presumption of Delhi University that NCW would release the
information. She stated that “obviously it is wrong to say that disclosure of information about
University rules is exempted under section 8(1)(g), (j) & (e) of RTI Act or NCW would provide it”.
The appellant pleaded that rule of severability should have been used in relation to point ‘B’. The
Registrar and Appellate Authority had upheld the contention of the Deputy Registrar and transfer
of   application   to   NCW.   Then   appellant   filed   second   appeal,   claiming   that   PIO   of   National
Commission for Women did not furnish any reply and her first appeal dated 15.12.2013 was also
not replied. She pleaded the following grounds:
CIC/RM/A/2014/000313­SA Page 2“A. Document   No.   FMDS/247/Complaint/PG/MAMC/2012/3766   dated   28.12.12   has
been created and issued by the Faculty of Medical Sciences, University of Delhi. Hence,
University of Delhi is the custodian of this document and not the National Commission for
Women.
B. The Hon’ble CIC can satisfy itself by perusing the said document that it contains no
reference to the National Commission for Women and instead has reference to some GB
Pant Hospital document, which has also not been released.
C. 4 point information about this document was denied by University of Delhi on the
pretext that National Commission for Women is the seat of Enquiry and thus transferred
the RTI application to them.
D. The Medical Council of India stipulates that not more than 2 PG students can be
admitted per year per recognized PG teacher and accordingly one PG teacher cannot be
thesis guide to more than 2 PG students per year.
6. She requested the Commission to examine the file and direct for release of complete
information as sought in RTI application. 
7. During hearing, the CPIO and other officers of the University claimed that the PG students
filed complaints against the appellant and her husband, alleging sexual harassment and as per
the law details about complaint and related information could not be given to two doctors ­
husband and wife (appellant). The Commission on 03.11.2015 exercising its power under section
19 (a)(1) of RTI Act directed Mr. Henry H. Baa, Joint Registrar (Faculty of Medical Sciences), Delhi
University to produce record before the Commission about proceedings against Dr. A. L. Agarwal
and her husband, regarding correspondence with the National Commission for Women based on
the complaint of PG students. Accordingly on 09.11.2015, a bundle of documents was submitted to
this Commission in sealed cover.
8. On perusal of that record it was observed that NCW has taken suo­moto cognizance and
constituted inquiry committee under Section 8 (1) read with Section 10(1) and (4) of NCW Act
1990 to inquire into the complaint regarding the alleged harassment of female PG student by
CIC/RM/A/2014/000313­SA Page 3Professors of Medical College, Delhi and also given recommendations like transfer of students
from guidance of appellant and her husband to other professors. A note in the file of Delhi
University (Faculty of Medical Sciences) refers to 09 students complaining with 23 allegations
against Head and his wife of their department who were their thesis­guides. The note says the
basic contention of allegations was about lack of training and education, verbal abuse and defying
basic right of dignity of work which makes them worried to work in the department. The students
were complaining against the present Head, alleging that he caused mental harassment, created
vicious working atmosphere and continued the humiliating behaviour.
9. The note dated 28.12.2012 deals with complaint of harassment by both Dr. Sanjay Agarwal
and Dr. Aruna Agarwal (husband and wife), and requested to transfer them in other Medical
College. The Director of G. B. Pant Hospital has informed that both the husband and wife have
been transferred. Most of that record is about attendance, leave and other related works of the
students. In it there is a letter dated 26.12.2012, wherein the National Commission for Women
asked the Secretary, Health and Family Welfare, GNCTD to ensure that alternate guide be
provided to the complainant students in place of the alleged accused professor and his wife. NCW
also recommended to ensure that strict action be taken in accordance with law against accused
and suspend them immediately, since the demotion/transfer is not a punishment in this case. Dr.
M.   S.   Bhatia,   HOD   of   Psychiatry   referred   representation   consisting   of   allegation   of   ‘sexual
harassment’ against Dr. Sanjay Agarwal, and sought immediate action to suspend him.
10. This Commission found letter dated 22.11.2012 addressed to Dean (Faculty of Medical
Sciences) submitted by 09 PG students requesting for transfer of Psychiatry PG students from G.
B. Pant Hospital to other teaching institutes due to alleged continuing harassment of the students
by Dr. Sanjay Agarwal and his wife Dr. Aruna Agarwal (appellant). Most of the allegations are
about harassment by husband and wife together. The allegations made in 23 points do not consist
any specific sexual  harassment  allegation against  either  Dr.  Sanjay (husband)  or  Dr.  Aruna
CIC/RM/A/2014/000313­SA Page 4Agarwal (wife) individually. Every allegation was made against both jointly. The complaints did not
reveal any allegation that both of them together caused any ‘sexual harassment’. 
11. Letter No. 2 dated 04.01.2013 was written to the Dean by the same PG students. Out of 09
complaining students, three are male persons. The second letter also consists of harassment
complaint against both husband and wife. There are similar letters of complaints against this
couple. In spite of repeated deep scrutiny, the Commission could not locate any point of allegation
related to sexual harassment.
12. The Commission located letter No. FMDA/247/Complaints/PG/MAMC/2012/ 3766 dated
December, 28, 2012. This letter also contains no specific allegation of sexual harassment. This
letter is about change of supervisor of certain students because of humiliating harassment. There
is   nothing   that   can   be   claimed   as   confidential   in   this   letter.   The   appellant   is   seeking
correspondence, file notings relating to this.
13. The Commission finds no exception in section 8 (1) of RTI Act, can enable the CPIO to
deny copy of letter cited under point A & B, and under point C & D, she has simply asked for copy
of rules which is also not hit by any provision of section 8. Assuming that this change of supervisor
was the result of complaint by 9 PG students, which included male students also, against that
husband and wife, there is nothing that prohibited disclosure of the same. The CPIO was not
correct in alleging that the complaints by 09 students (both male and female) against husband and
wife were of sexual harassment. The allegations are substantially of serious harassment, but there
is no possibility of considering them as of sexual harassment.
14. The CPIO submitted to the Commission during hearing that the appellant’s request for
copy of complaint against him could not be given because the complaint included the charge of
sexual harassment, and Section 16 of Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013, has prohibited such disclosure. He also claimed that Section
CIC/RM/A/2014/000313­SA Page 516 specifically overrides RTI Act, 2005. The CPIO also contended that since the matter was
seized by the National Commission for Women, the copy of the complaint could not be given.
DISCUSSION ON FACT AND ON RELEVANT PROVISIONS OF LAW:
15. Appellant is Dr. A. L. Agarwal, wife of Dr. Sanjay Agarwal, who is Head of Department,
under whose supervision 09 P.G. students were researching. Complainants include both male and
female students. They leveled allegation of harassment against both Dr. Sanjay Agarwal and his
wife (Appellant). In this case students made allegations against female professor (appellant) also. 
16. If the University considered the complaint as the sexual harassment it should have referred
to Committee against Sexual Harassment of the College for inquiry, which is mandatory under
2013 enactment and the directives of Supreme Court. If they had not constituted committee prior
to this complaint, they should have constituted, at least after such complaint is received. After
study and verification of the records submitted in sealed cover, the Commission finds that the
complaint of 09 students was not referred to the committee against sexual harassment, because
the authority also was not sure whether the complaint disclosed any allegation in the nature of
sexual harassment. However, serious allegations of harassment including use of inappropriate
language and improper behaviour against husband and wife (appellant) were leveled. Though
these allegations are of very serious proposition, no action was initiated immediately by public
authority. Undoubtedly the National Commission for Women has enough authority and jurisdiction
to inquire into the allegation made by 09 students, majority of who were women, irrespective of the
nature of charges, whether sexual harassment or other harassment.
17. The Commission finds that NCW has issued directions, which were implemented by the
Delhi University, such as transfer of students or change of supervisor. It is also a matter of fact
that there was no recommendation by the National Commission for Women to refer the complaint
to committee against Sexual Harassment. NCW did not recommend any action on that lines.
CIC/RM/A/2014/000313­SA Page 6When the complaint of 09 students cannot be considered as complaint of sexual harassment, the
contention   of   the   CPIO   that   it   cannot   be   disclosed   as   per   2013   Law   will   totally   fail.   The
Commission considers, after due study of the sealed file which includes recommendations of
NCW, that the complaint is not in the nature of sexual harassment and that is why it was not
referred to the committee against sexual harassment. No committee was constituted to inquire into
this charge. There are no separate complaints against the appellant and her husband individually.
The women students did not make sexual harassment allegations against male Doctor/Research
Supervisor  (husband  of  the appellant).  Male students  did not  make any sexual  harassment
allegation against female Doctor (appellant). It is a joint complaint of 09 students made against a
couple jointly on matters related to supervision of their research and humiliation.
18. The CPIO raised contention of prohibition of disclosure of complaint under section 16 of
Sexual Harassment of Women in the Work Place (Prevention, Prohibition and Redressal) Act,
2013, which says :­
“Notwithstanding anything contained in the Right to Information Act, 2005 the contents of the
complaint made under section 9, the identity and addresses of the aggrieved women, respondent
and witnesses, any information relating to conciliation and inquiry proceedings, recommendations
of the Internal Committee or the Local Committee, as the case may be, and the action taken by
the employer or the District  Officer under the provisions of this Act shall not be published,
communicated or made known to the public, press and media in any manner.
Provided that information may be disseminated regarding the justice secured to any victim of
sexual harassment under this Act without disclosing the name, address, identity or any other
particulars calculated to lead to the identification of the aggrieved woman and witnesses”.
19. Section 16 prohibits undue publicity or publication of contents of the complaint made under
section 9, identity and addresses of the aggrieved women etc. The section specifically says, it
should not be published, communicated or made known to the public, press and media. This
section does not prohibit the disclosure of certified copy of complaint to the person against whom
complaint is made. The prohibition is against undue publicity among the public, press or media,
which under any stretch of imagination can be extended to disclosure to the accused person.
CIC/RM/A/2014/000313­SA Page 7Even if it is assumed that the complaint of PG students against supervising couple is of sexual
harassment, the CPIO cannot deny the disclosure of the complaint related information or papers
to the accused officer. It was not correct for CPIO to raise this kind of contention.   The CPIO
should have seen the rules and FAQs circulated by the DoPT to understand that officers accused
of sexual harassment were entitled to have a copy of the sexual harassment complaint against
them. 
20. Department of Personnel and Training has circulated a set of Frequently Asked Questions
(FAQs) and Answers on Sexual Harassment of Women at Working Place under circulation No.
F.No.43012/5/2012­ESTT.A in which at point No. 11 it is mentioned – “whether copy of the report
should be given to the Charged Officer/Complainant”; Answer is ‘Yes’.
Rule 7 (1) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Rules, 2013 specifically stated that the complainant shall submit to the Complaints
Committee, six copies of the complaint along with supporting documents and the name and
addresses   of   the   witnesses.   Rule   7   (2)   says,   on   receipt   of   the   complaint,   the   Complaints
Committee shall send one of the copies received from the aggrieved women under sub­rule (1) to
the   respondent,   within   a   period   of   7   working   days.   Rule   7   (4)   mandates   that   Complaints
Committee shall make inquiry into the complaint in accordance with the principles of natural
justice. The principles of natural justice demand furnishing a copy of complaint to the charged
officer.
21. Rule   7   reiterates   the   right   of   the   complained   person   or   accused   charged   officer   or
respondent in sexual harassment case to have the copy of the complaint as received by the
Complaints Committee from the complainant. Thus, it is clear that the appellant and her husband
are entitled to have copy of the complaint, even if it is assumed that the complaint is in the nature
of sexual harassment. 
CIC/RM/A/2014/000313­SA Page 822. The CPIO in his written response claimed that information sought cannot be given as per
the section 8 (1) (g), (j) and (e). Section 8 (1) (g) claiming that such disclosure would endanger the
life or physical safety of any person etc. The CPIO could not produce any evidence to show that
appellant and her husband did not know the identity of research scholars whom they were guiding
and that such disclosure would endanger physical safety. The CPIO’s claim for exemption under
Section 8 (1) (j) also does not stand, because information does not relate to personal information
of anybody. Moreover, information sought is relating to public activity of two Professors and there
is a public interest in proving or disproving the allegation of harassment. It is not possible for the
charged officers to make their case, or defend them against allegation if the allegation is not
known to him. The complaint of sexual harassment is not a secret document for charged officer.
There is statutory responsibility on the part of the public authority to verify the truth of the
allegation in a properly conducted inquiry. In this case, the public authority has not initiated any
inquiry   against   the   appellant   and   her   husband,   and   thus   it   is   not   entitled   to   invoke   this
exemption/exception. Thirdly, the CPIO has claimed exemption under section 8 (1) (e) saying the
information was received in fiduciary capacity. This is most fallacious contention. PG students did
not give any secret information or did not ask the authorities to keep the information confidential,
but they made a complaint and wanted the authorities to act on that. This is not information, but a
complaint required to be inquired into. The public authority like University, in this case has not
conducted any inquiry into the allegation, but wrongly claimed that the ‘complaint’ is personal or
fiduciary information and illegally denied the same to the officers who were accused.
23. The Commission finds that Delhi University has not performed its responsibility; it has not
inquired into the serious charge/ allegation of harassment against the appellant and her husband,
though university acted on the recommendation of NCW. The Commission also finds that the
public authority did not take enough interest in performing its duty in examining the real/substantial
nature of the complaint of 09 P.G. students, whether it reveals the character of sexual harassment
CIC/RM/A/2014/000313­SA Page 9or not. If they sincerely found the allegations were of sexual harassment nature, they had a duty of
referring them to Committee against Sexual Harassment, which they abdicated. They have simply
passed on the matter to the NCW and were waiting for its instructions.
24. In addition to the inquiry done by NCW, Delhi University should have performed its legal
obligations in the interest of students, good administration and public interest and inquired into the
allegation to establish the fact and take necessary action against wrong doers, if any. All the
defenses claimed by the CPIO in his written response and contentions during hearing failed due to
reasons discussed above and the Commission holds as follows:
a) The Complaint filed by three male and six female PG students against Dr. Sanjay Agarwal
and his wife Dr. Aruna Agarwal is not of sexual harassment but of serious harassment,
which   do   not   attract   any   provision   of   Sexual   Harassment   of   Women   at   Workplace
(Prevention, Prohibition and Redressal) Act, 2013.
b) Even if assumed that the complaint in this case discloses possibility of sexual harassment
charge, Section 16 of Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013 does not prohibit sharing of the copy of complaint with the
complained officers. 
c) Public authority should read Section 16 of Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 along with the rules made under this Act
and   circulars   of   DoPT   which   specifically   direct   them   to   provide   a   copy   of   sexual
harassment complaint to charged officer. 
d) Principles of natural justice demand that the copy of the complaint must be given to the
accused officer so that he would get ample opportunity to defend the charge made against
him. 
CIC/RM/A/2014/000313­SA Page 10e) It is absolutely irrelevant and wrong to assume that disclosing identity of complainants to
the complained officer would endanger the life of complainants, when the complainants
were PG students researching under the supervision of the complained doctors. 
f) It is absolutely wrong to consider the complaint given to authorities for taking action as
information given in fiduciary relationship. 
g) Invoking irrelevant provisions of exceptions, wrongly assuming the complaint as sexual
harassment   complaint   and   wrongly   interpreting   Section   16   of   Sexual   Harassment   of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 by the public
authority do not reflect any good faith on the part of CPIO and other officers but show that
they are unreasonably not interested in sharing any information with the appellant and her
husband. 
25. Hence the Commission directs CPIO to furnish the certified copies as sought under point
A, B, C, & D, within 20 days from the date of receipt of this order. The Commission also directs the
respondent authority to take back the sealed file from the Commission, under acknowledgement.
 (M. Sridhar Acharyulu)
Information Commissioner
Authenticated true copy
(U.C.Joshi)
Deputy Secretary
Address of the parties :
CIC/RM/A/2014/000313­SA Page 111. The CPIO under RTI Act, 
O/o Dy. Registrar, University of Delhi,
Delhi­110007 (RTI Cell).
2. Shri A. L. Agarwal,
D­3, Type­4 Flats, MAMC Campus,
New Delhi­110002.
CIC/RM/A/2014/000313­SA Page 12
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