9911796707
TMI Blog2023 (11) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... o exercise its powers of judicial review in matters of disciplinary proceedings particularly one pertaining to sexual harassment, this Court in APPAREL EXPORT PROMOTION COUNCIL VERSUS A.K. CHOPRA [ 1999 (1) TMI 522 - SUPREME COURT] observed that the courts should not get swayed by insignificant discrepancies or hyper-technicalities. The allegations must be appreciated in the background of the entire case, and the courts must be very cautious before any sympathy or leniency is shown towards the delinquent. It further held that the courts are obliged to rely on any evidence of the complainant that inspires confidence. Whether the Central Complaints Committee committed any egregious error in putting questions to the witnesses in the course of the departmental enquiry and thereby vitiating the disciplinary proceedings? - HELD THAT:- The obligation on the part of the Authority to ask the delinquent whether he pleaded guilty or had any defence to make is only in the circumstances, if the delinquent had not admitted any of the articles of charge in his written statement of defence or had not submitted any written statement of defence. Indisputably, in the case on hand, the Respondent had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the complainant. What is most important to note at this stage is that the High Court has not gone into the sufficiency of evidence as it was aware that the law does not permit it to go into the issue of sufficiency of evidence for the purpose of holding a public servant guilty of the alleged misconduct. It is in such circumstances that in the entire judgment the High Court has concentrated only on technical pleas raised by the Respondent. It is only on the issue of point 7(a) that the High Court seems to have taken the view that the findings in that regard are based on conjecture and surmises. The High Court took the view that in respect of the allegations contained in Point 7(a) which relates to the Respondent making unsolicited phone calls to the complainant, although no evidence of the call recordings had been produced to substantiate the same, yet the Central Complaints Committee accepted the allegations as true, and therefore its findings could be said to be based on conjectures and surmises. The High Court committed an egregious error in passing the impugned judgment and order - Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... cularly when the harasser goes unpunished or is let off with a relatively minor penalty. However, at the same time, it should be kept in mind that the charge of this nature is very easy to make and is very difficult to rebut. When a plea is taken of false implication for extraneous reasons, the courts have a duty to make deeper scrutiny of the evidence and decide the acceptability or otherwise of the accusations. Every care should be taken to separate the chaff from the grain. The veracity and genuineness of the complaint should be scrutinised to prevent any misuse of such laudable laws enunciated for the upliftment of the society and for equal rights of people without gender discrimination by anybody under the garb of "sexual harassment", lest justice rendering system would become a mockery. In such circumstances, we have decided to look into this matter closely and in details. A. FACTUAL MATRIX 3. The Respondent herein was serving as the Area Organizer i.e., the Local Head of Office of the Service Selection Board (for short, "the SSB"), Rangia, State of Assam between September, 2006 to May, 2012. In the very same office, a lady employee was serving as the Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d immediately call him and scold him bitterly. Sir, I am now so much depressed and mentally disturbed I have visited to the Doctors many times for which I have taken many medical leaves. Now, I am not in position to work even for a day under him. It also began affecting my family life. In view of the above, I request your kind honour to look into the matter sympathetically and it is also requested to take necessary action against the Shri D. Paul, AO Rangia to get rid of this problem as soon as possible for which I shall remain ever grateful to you. Yours faithfully, Sd/- 30.8.2011 (Smt. X) FA (Lady) A.O. Office, SSB Rangia A.1 On-Spot/Preliminary Inquiry Report 4. The Dy. IG, SSB, SHQ, Tezpur held a common "on-the-spot" fact finding inquiry in relation to the first complaint dated 30.08.2011 and recorded the statements of the employees working in the office of the Respondent. The Respondent was given an opportunity to file his reply to the allegations levelled in the complaints. On 13.12.2011, the "on-the-spot" fact finding inquiry was concluded, and two reports in that regard were submitted to the IG, Frontier HQ, Guwahati. a) On the first complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Accordingly, the Respondent was advised to improve his personnel management and administration of the office. The said report reads as under: To The Inspector General, Frontier Hqrs. SSB Guwahati. Sub: Enquiry report on Anonymous Complaint against Shri D. Paul, Area Organiser, SSB, Rangia Sir, With reference to Ftr. Hqrs. Ghy. letter No. FG-II/VC-VIG/08(Part)/5660 dt 08-09-11, I visited Office of the Area Organiser, SSB, Rangia on 1st November, 2011 and enquired into the matter. All the staff present in the office on the date, were summoned one after another individually. I obtained their statements individually and on the basis of the interaction with each of them; I opine as follow: i) From the statements of the staff it is observed that Shri Dilip Paul, Area Organiser sometimes shout to some of the staff in the office, for the purpose of official work only. No proof has been found regarding use of unofficial language. One or two official stated that the Area Organiser used to be rude and shouted at them on some occasions on matters of official work only. ii) Regarding passing of TA/DA, MR Bills etc. it is found that these works are going smoothly. There has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .01.2012 to ascertain the fact of the case. The committee has gone through the statements of complainant, charged officer, and the statements of prosecution/defense witnesses but the point raised in the complaint could not be fully established/proved. The statement given by all the prosecution witnesses are not enough to prove the complaint. She has lodged a complaint after a gap of more than two years. The complainant failed to produce any documentary evidence based on the allegations levelled against the charged officer A.3 Central Complaints Committee's Inquiry Report 6. While the Frontier Complaints Committee's Report dated 17.01.2012 was pending for consideration, the Ministry of Home Affairs/Competent Authority, constituted another inquiry committee on 06.08.2012 being the Central Complaints Committee to conduct an appropriate inquiry into the complainant's allegations of sexual harassment. 7. Prima facie, it appears from the materials on record that the Central Complaints Committee had to be constituted, in view of Clause 9 of the 2006 Standing Order. Clause 9 of the 2006 Standing Order envisages two levels of complaints committee; (i) a Frontier Complaints Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegedly threatening message sent to him on his mobile phones by Smt. X's husband. In the counter-case filed by Smt. X's husband, similar allegations of sexual harassment have been raised. The Committee has ascertained from the SP Kamrup that both the cases are still pending investigation. Nevertheless, going by what has been stated in the CCS, CCA Rules 14(3), which states that action of prosecution in a court and departmental proceedings can go on simultaneously. The CCS CCA Rules require the fact that the approach and objective in the criminal and disciplinary proceedings are altogether distinct and different, be kept in view, as is laid down by the various Supreme Court rulings to this effect. Accordingly, the Committee decide to proceed with enquiry and submit its findings. Smt. X has alleged that a few months after she joined Area Office, Rangia in April 2009, Shri Dilip Paul, then A.O. Rangia, started making unwelcome sexual advances to her, and that upon her refusal to submit to his advances and his sexually determined misconduct, he withdrew all work from her. She has cited the following incidents as the substance of her complaint. Point 1: That Shri Dilip Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lip Paul would pressure her to drive with him in his vehicle, either when she was returning from work or in the town. Point 5: That Shri Dilip Paul, on the occasion that Smt. X with other office colleagues had accompanied him to the railway station to book train tickets for the study tour to South India in march 2010, made an unwelcome sexual advance to her in full public view. While she was standing in the queue at the ticket booking counter, Shri Dilip Paul came to stand next to her and putt his arm around her shoulder and tried to hug her close to his body. Shri Dilip Paul said to her that he is sending her on the study tour to make her "mind fresh" so that she may forget her previous life and when she returned, begin a new one as Mrs. Paul. Point 6: That Shri Dilip Paul subjected her to further unwelcome sexually determined conduct by the statements that he made when he came to the railway station to see off the group departing for the study tour. After the luggage had been loaded onto the train, Shri Dilip Paul came into the train compartment and said to Smt. X "tum jaa rahe ho to mari jaan jaa rahi hai. Ham ka saath jaanaa hi acchaa hota. Koi baat nahiin, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resisting. He also tried to forcibly embrace her, but she extricated herself and ran into the room that her children were sleeping in. f. That Shri Dilip Paul, during an official trip to Nagrijuli in connection with the Civic Action Programme, made her sit next to him and tried to hold her hand and touch her, all of which behaviour was sexually determined, unwelcome and insulting. Smt. X also stated that there were no eyewitnesses to these acts, as only she and Shri Dilip Paul were seated in the middle seat of the car. Point 8: That Shri Dilip Paul began victimising her for her refusal to submit to his unwelcome sexual advances soon after he learnt that she had made a complaint about his misconduct to Shri S.C. Katoch, who happened to be DIG of another area. Smt. X had telephoned Shri S.C. Katoch after the incident reported in point 10, and told him all that had been taking place. She stated that Shri Katoch informed her in a subsequent phone call that she made to him that he had issued a verbal reprimand to Shri Dilip Paul. However, a few days after the incident, Shri Dilip Paul called her into his office and asked her whether she had made a complaint against him to Shri Kato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the same was in violation of the statutory provisions, more particularly the Standing Order No. 1 of 2006 (Grievances Redressal Mechanism: To Redress Grievances of Women/Sexual Harassment at Work Place) (for short, "the 2006 Standing Order"). 12. Clause 9(1) of the 2006 Standing Order mandates that the chairperson of the inquiry committee must be senior in rank to the delinquent/charged officer and reads as under: 9. COMPLAINT COMMITTEES 1. Chairman of committee should be senior to the officer/official against whom the complaint is made. xxx xxx xxx TO: I) SO(ADMN), FTR HQR GUWAHATI II) DR- K.S. DEVI, CHAIRPERSON, COMPLAINT COMMITTEE, FTR HQR GUWAHATI FM: AD(PERS-m), FHQ NEW DELHI REF. FTR, HQR GUWAHATI LETTER No. GF-II/VC-VIG/O8(PART)/3270 DATED 17.02.2012 REG. SUBMISSION OF INQUIRY SUBMITIED BY THE CHAIRPERSON OF THE COMPLAINT COMMITIEE Dr. K.S. DEVI ON 17.01.2012 ON COMPLAINT OF SEXUAL HARASSMENT MADE BY Smt. X, FA (LADY) FTR HQR GUWAHATI AGAINST SHRI D. PAUL, AO RANGIA NOW DIG, FTR HQR SILIGURI (.) IT IS OBSERVED THAT AS PER SOP ON SEXUAL HARASSMENT THE CHAIRPERSON OF THE INQUIRY SHALL BE ONE RANK ABOVE OF THE GOVT. EMPLOYEE AGAINST WHOM HIS COMPLAIN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he SSB to sensitise them with regards to their role and responsibilities regarding the implementation of the standing order 1/2006. 14. On 16.01.2013. the Respondent was provided with the Central Complaints Committee's Inquiry Report and was asked by the Disciplinary Authority to submit his reply/written representation, which was submitted by him on 30.01.2013. The Inquiry Report along with the written representation of the Respondent was forwarded by the Ministry of Home Affairs in accordance with the relevant Rules to the Union Public Service Commission for the purpose of seeking advice on the penalty that was proposed to be imposed. 15. The order imposing penalty passed by the Disciplinary Authority reads thus: GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIR DIRECTORATE GENERAL, SSB EAST BLOCK-V, R.K. PURAM NEW DELHI - 110066 Date 05.01.2016 Order No. 14/SSB/PERS-I/2013(1) 69-79 WHEREAS, a complaint of sexual harassment at workplace was made by Smt. X, FA (Lady) vide her complaint dated 30.08.2011 against Shri Dilip Paul, Area Organiser who had superannuated from government service on 31.03.2013 as DIG. AND WHEREAS, Ministry of Home Affairs being the disciplinary au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the Charged Officer. AND WHEREAS, in terms of DoP&T OM No. 11013/2009- Estt.(A) dated 03.08.2009, the report of Complaint Committee is to be treated as the enquiry report under the CCS (CCA) Rules, 1965 and the disciplinary authority is to take action on that report as per the procedure prescribed in Rule 14 of CCS (CCA) Rules 1965. AND WHEREAS, a copy of enquiry report after its acceptance was served upon the Charged Officer, Shri Dilip Paul, DIG for making his representation vide Memo No. 14/SSB/Pers- 1/2013(1)/437-39 dated 16.01.2013. The Charged Officer had submitted his reply vide letter dated 30.01.2013 denying all the charges levelled against him. AND WHEREAS, the representation of the Accused officer on the inquiry report was examined and considered by the Disciplinary Authority, whereafter the advice of Union Public Service Commission regarding quantum of punishment to be imposed upon the charged Officer vide letter No. 14/SSB/Per.I/2013 (1)/Pers-III dated 26.04.2013 was sought. AND WHEREAS, the Union Public Service Commission vide its letter dated 22.08.2013 has advised imposition of penalty of withholding of 50% (fifty percent), of monthly pension on permane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt superannuated on 31.03.2013 as Dy. IG, Frontier Headquarters, SSB, Ranidanga, Siliguri, Darjeeling, West Bengal, and subject to the final outcome of the disciplinary proceedings, he was granted provisional pension without retirement gratuity. A.4 Defence of the Respondent 17. It is the case of the Respondent that the complainant had preferred one application in August, 2011 with a request to transfer her from the Rangia Office to the Frontier Headquarter Guwahati. The request for transfer was made on the ground that the complainant needed to look after her ailing mother-in-law. However, her application was rejected by the IG, Frontier Headquarters on 24.08.2011 on the ground of non-availability of corresponding vacant post. It is the case of the Respondent that on the very next day, he received a message on his mobile phone which read as follows; "I am hubby of one of your lady staff, wait and watch the end of your career. 18. According to the Respondent the message was forwarded by the husband of the complainant as she harboured a grudge on the misconception that it was the Respondent who was instrumental in getting her transfer application rejected. 19. It is also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents and the Respondents knowingly constituted the Frontier Level Complaints Committee with a Chairperson junior to the applicant and therefore there was no valid reason to annul the report of the FLCC. 62. We are unable to accept the said submission by expressing that if there is a procedural irregularity even accrued unknowingly or unfortunately that could not be encouraged when we go into the proper adjudication of the matter. The Central Complaint Committee by going to the thorough enquiry by giving opportunity to the applicant and others with due examination as well as cross examination with the witness culminated into the opinion. xxx xxx xxx 64. We have given our thoughtful consideration in the matter by taking into account the entire conspectus of the case, to the conclusion on the point that the consideration of Central Complaints Committee as per law laid down and in terms of the guidelines which has been duly followed by the department by taking care of the earlier observation by giving our view that the Frontier Level Standing Committee findings was not as per SOP reason as already given. We are not finding any infirmity in the enquiry apropos sexual harassment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CCC in the report under the heading "VI. Charges which were admitted/dropped/not pressed" that the Petitioner did not plead guilty to any of the allegations made by the complainant in her complaint dated 30.08.2011. Though the copy of the complaint dated 30.08.2011 was furnished, the same was not given in the form of articles of charge. The requirement of the officer proceeded against to be formally asked whether he pleads guilty or not would, according to the understanding of the court, is not an opportunity to such officer only to answer the same in a mono- syllable. To give meaning to the word "formally", a real and effective opportunity has to be granted to the officer concerned to make his comment in writing in response to the complaint. Apparently, no such opportunity was afforded. There is no indication that in respect of the complaint dated 18.09.2012, the officer was even asked as to whether he pleads guilty to the allegations made therein or not. xxx xxx xxx 43. Clause 10(ii) of the Complaint Mechanism provides that complaint shall contain all the material and details concerning the alleged sexual harassment. What were the allegations in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also played the role of prosecutor, which vitiates the proceeding. (Emphasis supplied) (iii) Thirdly, the Central Complaints Committee could be said to have based its findings on surmises and conjectures. The High Court recorded that the case was one of "No Evidence". The relevant observations on this issue are under: 47. With regard to Point No. 7(a), the CCC had recorded that it had noted that no witness examined by it had specific knowledge of the events listed in, wrongly recorded as 5(a) - (f). It should have been events listed in 7(a) - (f). Events at 7(a) pertain to allegation of making unsolicited phone calls at unearthly hours and, that too, for long duration. No call records were produced. However, CCC accepted the allegations by merely holding that the committee saw no reason what gain the complainant would have in fabricating the allegations and that it is understandable that no woman would be expected to confide matters of sexual nature even to her female colleagues. The CCC is to record its finding based on evidence on record and not on surmises and conjectures. It will be worthwhile to recall that the prayer of the complainant for a transfer was rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on 18.09.2012, which the Committee could not look into is misconceived. It is submitted that the Complainant can't be denied to produced witnesses to provide her claim and that too, even before the preliminary hearing was conducted by the Committee on 26.09.2011. e. The allegation raised by the Respondent that he was not informed of the charges in the form of a 'charge-sheet' is frivolous as he was supplied with the copies of all the complaints and all other relevant documents. This goes to show that he was 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 Appellants herein. f. Therefore, it is submitted few infirmities here and there would not vitiate entire proceedings unless it is shown that some prejudice has been caused to the Respondent as has been held by this Hon'ble Court in State of U.P. v. Sudhir Kumar Singh, (Para 39). In the present case, adequate opportunity was afforded to the Appellant not just by the Committee, but also by the Disciplinary Authority and the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making process, not the decision per se. This Hon'ble Court in a recent judgment Aureliano Fernandes v. State of Goa while pondering upon the extent to which a High Court can interfere with respect to the departmental proceedings and findings thereof, observed the following: 62...Disciplinary Authority is the sole judge of facts and once findings of fact, based on appreciation of evidence are recorded, the High Court in its writ jurisdiction should not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The Court is under a duty to satisfy itself that an inquiry into the allegations of sexual harassment by a Committee is conducted in terms of the service Rules and that the concerned employee gets a reasonable opportunity to vindicate his position and establish his innocence." c. The Respondent herein was a member of the disciplined force and was holding a significant post at the time of commission of offence. He harassed the Complainant continuously for a period of more than 2 years despite warning issued by his superior. He did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... setting aside the enquiry report and ordering a second enquiry." 4. Further, in K.R. Deb v. The Controller, Central Excise, Shillong reported in [1971 (2) SCC 102], this Hon'ble Court has laid down that a 2nd enquiry is not permissible under the statutory provision of the Rule 15(1) of the CCS (CCA) Rules, 1965. The above decision was reiterated by this Hon'ble Court in U.O.I. v. Shri K.D. Pandey & Ors, reported in [2002 (10) SCC 471]. 5. The above quoted decisions of the Apex Court conclusively mandate that - (1) A second enquiry is not permissible, and (2) It is the correctness of the conclusion recorded in the enquiry report which determines the legality of the conclusions and not the mere technical flaws. These principles are fit to be extrapolated in the instant case. 6. That, the complaint dated 30.08.2011 contained only 2 (two) allegations, but the Central Complaint Committee extrapolated the allegations to as many as 10 Nos. incorporating therein the newly added exaggerated versions of the complainant and delved into those, thus travelling beyond the allegations in the complaint dated 30.08.2011 and overstepping its jurisdiction in violation of procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the CCC could not have entertained such a complaint for the purpose of a disciplinary proceeding in absence of entrustment in terms of Standing Order. 9. That, the Hon'ble High Court at para 44 & 45 of its judgment (Page 71-74 of the SLP) rightly held that the orders dated 26.11.2012, 27.11.2012, 28.11.2012 and 10.12.2012 go to show that the committee asked questions to the prosecution witnesses and examination-in-chief was done by the committee. Prosecution witness, Mr. S.C. Katoch, who was cross-examined by the complainant, in his statement had stated that the complainant had made only one call on his mobile and that she had mentioned that the sole Respondent is harsh in his office work and had given her duty in control room for which she is to sit in the control room after office hours. He had, in other words, negated the assertions made in the complaint that she had informed about sexual harassment meted out by the sole Respondent. The CCC, however, noted that it appeared that Shri Katoch had pre-judged the complaint as untrue. When his evidence was that there was no complaint of sexual harassment, there was no occasion for the CCC to opine that he pre-judged the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny financial issues and there was no order by any quarter about any such withholding of his retiral benefit. Moreso, the Punishment order dated 05.01.2016 (@ page 447-453 of Vol-II of present SLP) passed by the Authority concerned clearly directed that the gratuity amount shall be released to the sole Respondent and the said order of release of gratuity by the Respondent authority is not opposed or assailed by the Petitioner authority. However, till date no Gratuity amount was released to the sole Respondent. Due to such order, commutation value of pension has also not been paid till date. 13. Sole Respondent is the victim of circumstances as there was never any blemish in his entire service career and he was exonerated in all first three inquiries on same allegation. That too with a type of punishment which was not at all recommended by the Central Level Complaint Committee. Surprisingly, the authority on same allegations instituted 4th inquiry and imposed penalty just to victimize the sole Respondent for reasons best known to them. The sole Respondent was the unfortunate victim of interdepartmental rivalry and he was traumatized due to unproved allegations and his innocence was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of this Court in Vishaka and Ors. v. State of Rajasthan and Ors. reported in (1997) 6 SCC 241, whereby this Court recognized sexual harassment at the workplace as a violation of a woman's fundamental right to equality and dignity. The relevant observations are as under: 1. This writ petition has been filed for the enforcement of the fundamental rights of working women Under Articles 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard against such violations; and the resentment towards incidents of sexual harassment is also increasing. The present petition has been brought as a class action by certain social activists and NGOs with the aim of focusing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of "gender equality"; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation. 2. The immediate cause for the filing of this writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of the Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till the Parliament enacts legislation to expressly provide measures needed to curb the evil." (Emphasis supplied) 34. This Court in Vishaka (supra) further embarked on an innovative judicial process for the effective enforcement of the basic human right of gender equalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vours; c) sexually coloured remarks; d) showing pornography; e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. 3. Preventive Steps: All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps: (a) Express prohibition of sexual har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government Department concerned of the complaints and action taken by them. The employers and person-in-charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department. 8. Workers' initiative Employees should be allowed to raise issues of sexual harassment at workers' meeting and in other appropriate forum and it should be affirmatively discussed in employer-employee meetings. 9. Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner. 10. Third-party Harassment: Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person- in-charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action. 11. The Central/State Governments are reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er name these Rules are called) shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Services Conduct Rules. In other words, the disciplinary authority shall treat the report/findings, etc. of the Complaints Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent. 44.2. The States and Union Territories which have not carried out amendments in the Industrial Employment (Standing Orders) Rules shall now carry out amendments on the same lines, as noted above in para 44.1 within two months. 44.3. The States and Union Territories shall form adequate number of Complaints Committees so as to ensure that they function at taluka level, district level and State level. Those States and/or Union Territories which have formed only one committee for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferred by the proviso to Article 309 and Clause 5 of Article 148 of the Constitution of India. 37. Part VI of the 1965 CCS Rules contains the relevant provisions relating to the disciplinary proceedings and imposition of penalties for government servants in the central civil services and posts and Rule 14 therein stipulates the ordinary procedure and process for imposition of major penalties. 38. Pursuant to the decisions of this Court in Vishaka (supra) and Medha Kotwal Lele (supra) referred to above, the CCS Rules underwent several amendments whereby new provisions specifically dealing with sexual harassment came to be inserted, more particularly Rule 3C in the 1964 CCS Rules along with a new Proviso to Rule 14(2) of the 1965 CCS Rules. The said provisions conjointly made sexual harassment punishable with major penalties and specifically made the Vishaka Guidelines applicable to the disciplinary proceedings in relation to complaints of sexual harassment. The said provisions are enumerated below: 3C. Prohibition of sexual harassment of working women. (1) No Government servant shall indulge in any act of sexual harassment of any woman at any work place. (2) Every Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this Rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. Provided that where there is a complaint of sexual harassment within the meaning of Rule 3C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these Rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules." (Emphasis supplied) 39. In addition to the aforesaid amendments in the CCS Rules, the Standing Order No. 1 of 2006 (Grievances Redressal Mechanism: To Redress Grievances of Women/Sexual Harassment at Work Place) was also issued by the Directorate General, SS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has laid down the guidelines and norms for compliance at all workplaces and institutions. Under Article 141 of the Constitution, these guidelines and norms of the Hon'ble Supreme Court are required to be treated as THE LAW OF THE LAND. 5. The National Commission for Women, a statutory and autonomous body constituted by the Government of India is working for justice for women, safeguarding their rights, and promoting women's empowerment. The NCW consequently formulated a code of conduct for work place putting down the Supreme Court guidelines in a simple manner which has been widely circulated. Arrangements at various levels have been made to ensure that the women employed in Departments work with utmost dignity and are free from all types of sexual harassment. Accordingly, following scheme of arrangements has been devised for SSB: 6. DEFINITION Sexual harassment will include such unwelcome sexually determined behaviour by any person either individually or in association with other persons or by any person in authority whether directly or by implication such as: i) Physical contact and advances. ii) A demand or request for sexual favours. iii) Sexually col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m has been devised in pursuance of Hon'ble Supreme Court judgment dated 26.04.2004 in the matter of Medha Kotwal Lele and Ors. v. UOI and Ors. WP (Crl) No. 173-177-1999 and Govt. of India, Ministry of Personnel, Public Grievances & Pensions, DOP&T Notification dated 01.07.2004 signed by Smt. Pratibha Mohan, Director from file No. 11012/5/2001/Estt.(A), para 6 (Complaint Mechanism) is as under: i) Any person aggrieved shall prefer a complaint before the Complaints Committee at the earliest point of time. ii) The Complaint shall contain all the material and details concerning the alleged sexual harassment including the names of the contravener and the complaint shall be addressed to the Complaints Committee. iii) If the Complainant feels that she cannot disclose her identity for any particular reason, the complainant shall address the complaint to the Frontier IG/IG (Pers, FHQ) and handover the same in person or in a sealed cover. Upon receipt of such complaint, Frontier IG/IG (Pers, FHQ) shall retain the original complaint with himself and send to the Complaints Committee, a gist of the complaint containing all material and relevant details other than the name of the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. xiii) After completion of recording statement of witnesses (say from the prosecution side), the alleged officer/official should be given opportunity to produce defence, if any. It shall be ensured that the Rule of Law & principles of natural Justice are strictly followed. xiv) The Committee to give the findings/opinion after recording the defence and proceedings of cross examination of Defence Witnesses, documents etc if any. xv) In the order dated 26.4.2004 in Writ Petition (Crl.) No. 173-177/1999 (Medha Kotwal Lele and Ors. v. Union of India and Ors. the Supreme Court has directed that "the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS (CCA) Rules. Thereafter the disciplinary authority will act on the report in accordance with the rules." Sub-rule (2) of Rule 14 of the CCS (CCA) Rules, 1965 has accordingly been amended to provide that the Complaints Committee shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these Rules by the Notification No. 11012/5/2001-Estt.(A) dated 01.07.2004 (GSR 225 dated 10th July, 2004) and the report of the Complaints Committee should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Women Act 1990, Protection of Human Rights Commission Act 1993 or under any other law for the time being in force. 15. INTERACTION OF COMMITTEE WITH WOMEN 1. The National Commission for Women has recommended that Proactive steps such as meeting with women officers and members of Complaints Committee with all women in the Force in small groups should be organized. This would help them to informally exchanging views on handling sexual harassment related matters and draw mutual strength. This would build confidence for women to go forward professionally. 2. Keeping in view of this aspect it has been decided that henceforth the members of the Frontier level Complaints Committee will organize the meeting with all women as well as women employees within their operational jurisdiction of the Frontier in small groups and exchange their views on handling sexual harassment related matters as frequently as possible. 3. The Committee will also include a progress report about the number of such meetings organized, number of women present participated points if any, projected and its solution in the half yearly report to be submitted to Central Committee Directorate General as per para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings, it is the inquiry authority and the disciplinary authority who could be said to be the fact-finding authority and the courts in exercise of their powers of judicial review should not sit in appeal and reappreciate the evidence or substitute its own findings. The scope of judicial review of the courts is limited only to the propriety of the decision-making process and the fairness of the inquiry procedure as held by this Court in B.C. Chaturvedi v. Union of India and Ors. reported in (1995) 6 SCC 749. The relevant observations are reproduced below: 12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether Rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 demoralising 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 behaviour 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 behaviour and did not warrant any interference by the High Court in exercise of its power of judicial review. 29. At the conclusion of the heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the disciplinary proceedings against the Respondent and reinstating him to his position renders the complainant's remedy at nought. The history of legal proceedings such as these is a major factor that contributes to the deterrence that civil and criminal mechanisms pose to persons aggrieved of sexual harassment. The High Court, in this case, was not only incorrect in its interpretation of the jurisdiction of the Commandant and the obligation of the SSFC to furnish reasons under the BSF Act 1968 and Rules therein, but also demonstrated a callous attitude to the gravamen of the proceedings. We implore courts to interpret service Rules and statutory Regulations governing the prevention of sexual harassment at the workplace in a manner that metes out procedural and substantive justice to all the parties. (Emphasis supplied) E.2 Whether the Central Complaints Committee could have looked into the second complaint dated 18.09.2012? 45. The High Court in its impugned judgment observed that the Disciplinary Authority had constituted the Central Complaints Committee on the basis of the complaint filed by the victim. Since, at the time when the Central Complaints Committee came to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompletely different tangent and must be ascertained on the touchstone of whether it was filed at the earliest point of time and whether the same has been mischievously filed at a belated stage to cause prejudice to the person-charged. In the instant case, the Central Complaints Committee was constituted on 06.08.2012 and its first hearing took place on 25.09.2012 whereas the second complaint had been filed by the complainant before the Central Complaints Committee on 18.09.2012. Thus, the second complaint had been promptly preferred right after the Central Complaints Committee was constituted and duly before its first hearing. 50. The High Court's reasoning that as the Central Complaints Committee was constituted on the basis of the first complaint, its scope of inquiry was restricted to its content, is completely erroneous inasmuch as the Central Complaints Committee owed its existence to the 2006 Standing Order and not to the complaint. Moreover, even if it is assumed for a moment that the complaints committee owed its existence to the complaint, Clause 10(i) of the 2006 Standing Order envisages filing of a complaint to the complaints committee i.e., it envisages a situation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt to look into because it amounts to an error of law apparent on the record. (Emphasis supplied) 52. In view of this unequivocal and clear proposition of law set out in Rattan Singh (supra), it could be said that there was no legal bar on the Central Complaints Committee to look into the allegations levelled in the second complaint dated 18. 09.2012. Since strict and technical Rule of evidence and procedure does not apply to departmental enquiry the connotation "evidence" cannot be understood in a narrow technical sense as to include only that evidence adduced in a regular court of law when a person is examined as a witness by administering oath. There should not be any allergy to "hearsay evidence" provided it has reasonable nexus and credibility. 53. In our judgment, the correct principle of law is found in the following observations of Diplock, J. in Regina v. Deputy Industrial Injuries Commissioner, Ex parte Moore reported in (1965) 1 Q.B. 456. These technical Rules of evidence, however, form no part of the Rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it statement of defence or a complaint should be readily entertained by the courts and more so by the disciplinary & inquiry authorities irrespective of whether they are later actually relied or not in the ultimate decision making. Thus, it would be quite preposterous to hold that the complainant was precluded from making the second complaint before the Central Complaints Committee merely because she had already made one complaint to the IG, Frontier Headquarters, Guwahati. 56. In the context of the second complaint, the only relevant aspect that requires consideration is whether any serious prejudice was caused to the Respondent. It is not in dispute that the Respondent was provided with the copy of the second complaint. It is also not in dispute that the Respondent was aware of the nature of the allegations levelled in the second complaint. It is also not in dispute that ample opportunity was given to the Respondent to meet with the allegations levelled in the second complaint. It is not as if the Respondent was taken by surprise. In such circumstances, this aspect of the matter should have been looked into by the High Court on the anvil of the principle of "test of prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance may not be available. (3) In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available. In such cases, complaint/objection on this score have to be judged on the touchstone of prejudice, as explained later in this judgment. In other words, the test is: all things taken together whether the delinquent officer/employee had or did not have a fair hearing. We may clarify that which provision falls in which of the aforesaid categories is a matter to be decided in each case having regard to the nature and character of the relevant provision. xxx xxx xxx 28. ... In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haracter. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under - "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is always the same, viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/Regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said Rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the Rule of audi alteram partem) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing. ... (Emphasis supplied) 59. We now proceed to consider the next question whether the Respondent was asked by the Central Complaints Committee whether he pleaded guilty to the allegations levelled in the second complaint. The High Court after referring to the Central Complaints Committee's report found that, while the Respondent was asked whether he pleaded guilty to the allegations made in the first complaint, there was nothing to indicate that the same exercise had been undertaken in respect of the second complaint. 60. In the aforesaid context, we must look into Rule 14 Sub-rule (9) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charges levelled by all the complainants were of sexual harassment by the Appellant with a narration of specific instances. Therefore, in the given facts and circumstances, non-framing of the Articles of Charge by the Committee cannot be treated as fatal. Nor can the Appellant be heard to state that he was completely in the dark as to the nature of the allegations levelled against him and was not in a position to respond appropriately. (Emphasis supplied) 64. A four-Judge bench of this Court in Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors. reported in (1993) 4 SCC 727 held that in order to determine if prejudice had been caused by a violation of a procedural Rule or facet of natural justice, it must be shown that violation had some bearing either upon the outcome or the punishment imposed. The relevant observations are as under: 30.[v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or remov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint. Had the Respondent been asked if he pleaded guilty to the allegations levelled in the second complaint, then in such circumstances, whether the result would have been any different? The answer to this has to be an emphatic "No". We say so because the Respondent had denied all the ten charges which were framed against him. In other words, the Respondent answered to all the ten points by way of his written statement of defence and even had an opportunity to cross-examine the witnesses on each of the charges. 66. We are of the view that the High Court completely failed to advert itself to the principles laid down by this Court as aforesaid, and mechanically proceeded to set-aside the order of punishment imposed by the disciplinary authority on the ground that there was nothing to indicate that the Respondent was asked whether he pleaded guilty to the charges imputed in the second complaint without applying the principle of "test of prejudice". E.3 Whether the Central Complaints Committee could have put questions to the witnesses in a departmental inquiry? i) "Fact Finding" Authority in Disciplinary Proceedings 67. The High Court observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow: Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka case (1997) 6 SCC 241: 1997 SCC (Cri) 932, SCC at p. 253, will be deemed to be an inquiry authority for the purposes of the Central Civil Services (Conduct) Rules, 1964 (hereinafter call the CCS Rules) and the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the Rules. (Emphasis supplied) 71. This Court in Sakshi v. Union of India and Ors. reported in (2004) 5 SCC 518 had observed that quite often in sensitive matters particularly those involving crime against women the victims either due to fear or embarrassment were not able to openly disclose the entire incident. Often the victims during their testimony were put embarrassing questions by Accused with the sole purpose of confusing or suppressing out of shame. To remedy this, directions were issued by this Court that for cross-examination of victims, the question would be given to the presiding officer who in turn would ask them in clear language which is not embarrassing. The relevant observations are reproduced be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts committee to put question to the witnesses is further reflected though implicitly in Clause 10(viii) of the 2006 Standing Order which provides that, the delinquent officer shall not cross-examine the complainant directly and instead should hand over the questions to the chairperson of the committee who in turn would then put them to the complainant, to ensure no fear or embarrassment is caused to the complainant. The provision reads as under: 10. COMPLAINT MECHANISM viii) Cross examination of the witnesses should be allowed by the complainant and alleged officer. However, cross examination of complainant by the alleged officer is permissible as per Indian Evidence Act, 1872 subject to the directions as laid down by Hon'ble Supreme Court of India in AIR 2004 SC 3566-Sakshi v. UOI and Ors., i.e. to say "Questions put in cross-examination on behalf of Accused (charged officer in our case), which relate directly to incident, should be given in writing to the Chairperson of the Complaints Committee who may put them to victim or witnesses in a language which is clear and NOT EMBARRASSING." The questions shall thus be vetted by the Chairperson of such Complaints Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y officer has questioned the witnesses, did not point to any specific question put by the officer that would indicate that he had exceeded his jurisdiction. No specific malice or bias has been alleged against the enquiry officer, and even during the enquiry no request had been made to seek a replacement, thus, evidencing how these objections are nothing but an afterthought. (Emphasis supplied) 77. If Section 165 of the Indian Evidence Act, 1872 permits a Judge to put questions to the parties or to the witnesses in order to discover or obtain proper proof of relevant facts and this provision being widely used by the judges throughout the country, we fail to understand as to how the complaints committee after being equated with a judge in a judicial proceeding be denied that privilege. However, it would be a different situation if a specific case of personal bias is made out against the members of the committee. After all, the very purpose of the disciplinary proceedings is to reach to the bottom of the fact while affording adequate opportunities to the affected party. 78. Thus, the High Court was not correct in taking the view that the proceedings stood vitiated because the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. There is, indeed, the well-established Rule that to find facts on no evidence is to err in law. (Emphasis supplied) 81. The learned Author has pointed out that the "no evidence" Rule has some affinity with the substantial evidence Rule of American law which, as explained by Bernard Schwartz in his treatise on Administrative Law, 1976 Edition, at page 595, means "such evidence as might lead a reasonable person to make finding." In other words, according to the learned Author, "The evidence in support of a fact-finding is substantial when from it an inference of existence of the fact may be drawn reasonably. 82. The earliest English decision which has touched upon the concept of "no evidence" is that of the Court of Appeal in The King v. Carson Roberts reported in 1908 (1) K.B., 407. The question in that case was whether the superior court having the power to issue a writ of certiorari, if it appeared to it that the decision of the auditor in regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his." 85. In French Kier Developments Ltd. v. Secretary of State for the Environment reported in 1977 (1) All ELR 297, the jurisdiction of the court of Queen's Bench Division was invoked for quashing the appellate decision of the Secretary of State confirming the refusal of permission for development. The Secretary of State accepted the findings of fact recorded by the Inspector at the conclusion of the public inquiry which followed the Borough Council's refusal of permission but not his recommendation that the appeal should be allowed. The Secretary of State, in deciding the appeal, took into consideration the contents of a document and accepted them as correct, notwithstanding the fact that the Inspector had regarded the document as of no evidential value. The argument before Willis J. was that the Secretary of State should have ignored the document, or any reference to its contents, as the Inspector did, since it was not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the inquiry was held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the Rules of natural justice were not violated. Then follow the following important observations: Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ Under Article 226 to review the evidence and to arrive at an independent finding on the evidence... if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ Under Article 226 of the Constitution. (Emphasis supplied) 88. This decision was approvingly referred to and relied upon in State of Andhra Pradesh and Ors. v. Chitra Venkata Rao reported in (1975) 2 SCC 557. 89. In Union of India v. H.C. Goel reported in AIR 1964 SC 364, the question as to the amplitude and width of the judicial review Under Article 226, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence reasonably supports the conclusions recorded by the competent authority. If the court comes to the conclusion that the enquiry was held in consonance with the prescribed procedure and the Rules of natural justice and the conclusion recorded by the disciplinary authority is supported by some tangible evidence, then there is no scope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the conscience of the court. (Emphasis supplied) 91. This Court in Aureliano Fernandes (supra) while discussing upon the extent to which a court can interfere with respect to the departmental proceedings conducted pursuant to the allegations of sexual harassment, made the following relevant observations: 62. ... Disciplinary Authority is the sole judge of facts and once findings of fact, based on appreciation of evidence are recorded, the High Court in its writ jurisdiction should not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had once conveyed to him that the Respondent used to make proposals of marriage to her. Nothing substantial could be elicited from the cross-examination of Mast Ram Thakur. In fact, what has been deposed by Mast Ram Thakur as referred above, has not even been remotely disputed in the cross- examination by way of even a suggestion. b. Shri Rynjan Singh, peon (PW8) and Shri Chandan Sarkar (PW6) stated that they had seen the complainant being made to sit in the Respondent's chamber for hours. Shri Ashok Kumar, PA (PW17) further stated that the complainant had once told him that after being called in his chamber the Respondent would often comment on her beauty and clothes. c. Shri P.K. Rawat, UDC (PW5), Shri Ranjit Patoi, Assistant (PW7) and Shri Samir Nandi, SFA(G) (PW14) have all stated that they had seen the Respondent pour himself a glass of water in his chamber and then go to the complaint's room 5-6 times a day, and while drinking he would always be looking at the complainant. Shri Runjan Singh, peon (PW8) stated that earlier the Respondent used to drink water in his own chamber, but once the complainant joined the office, he started frequently visiting her room to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i A. Deben Singh, AFO(M) (PW13) Shri Surjit Singh, Driver (PW2), Shri Rynjan Singh, peon (PW8) all stated to have heard from the other office staff that the Respondent would often visit the complainant's residence uninvited and make proposal of marriage. Other witnesses namely; Shri Shyam Dass, Section Officer DACS (retd.) (PW19), Shri Subhash Prasad, UDC (PW18), Shri Ashok Gahlot, PA (PW17), Shir Jinen Singh, UDC (PW11), Shri Ranjit Patoi, Shri Samir Nandi, SFA(G) and Smt. Pema Nazary, AFO(WI) (PW9) all supported these allegations and said to have heard from the complainant sometime in 2009-10 that the Respondent used to visit her house at odd hours and also used to misbehave with her by making sexual advances and asking the complainant to leave her husband and marry him. Shri Chandan Sarkar, SFA(M) (PW6), stated to have even heard a telephonic recording of the Respondent making sexual remarks to the complainant. Shri P.K. Rawat, UDC (PW5) stated that on many occasions he had seen the Respondent sitting at the complainant's house. i. Shri S.C. Katoch, IG (PW20), stated that the complainant had once telephoned him making a complaint against the Respondent for detaining he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Shri Dilip Paul often telephoned Smt. X, and that too at odd hours, but since call records for Shri Dilip Paul's mobile phone were not available and Smt. X had a prepaid SIM card, it has failed to do so. xxx xxx xxx ... The Complaints Committee also notes that the unavailability of corroboration from call records cannot be laid at Smt. X's door because, had the enquiry into her complaint been timely and speedy, these records would have been available as on date." 98. Before we close this judgment, we must deal with one submission very vociferously canvassed on behalf of the Respondent as regards the multiple inquiries conducted by the Appellant. It was submitted on behalf of the Respondent that the normal Rule is that there can be only one inquiry. It was also submitted that once the on-spot/preliminary inquiry revealed nothing incriminating against the delinquent, no further committee could have been constituted to inquire into the allegations once again. 99. It was further submitted that even the Frontier Complaints Committee came to the conclusion that the charges were not held to be proved. 100. In such circumstances referred to above, according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can also enquire into any matter of sexual abuse in the organization which necessarily includes the frontier also and, therefore, it cannot be said that the CCC could not have exercised authority in the instant case. The decision in K.D. Pandey (supra), wherein it was held that when specific findings have been given in respect of charges by the inquiry officer, the matter could not have been remitted to the inquiring authority for further inquiry as it would have resulted in a second inquiry and not a further inquiry on the same set of charges and the materials on record, will not be applicable in the facts and circumstances of the case. In K.R. Deb (supra), the Supreme Court observed in the context of the Rules in question that though it may be possible in certain circumstances for the disciplinary authority to record further evidence, because of some serious defects that had crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, no power is vested in the disciplinary authority to completely set aside previous inquiry on the ground that the report does not appeal to the disciplinary authority. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
