And thereby set aside the order of penalty of withholding of 50% pension for all times to come, imposed upon the respondent herein in connection with the disciplinary proceedings initiated on the allegations of sexual harassment. (Para 1)
We are dealing with a litigation relating to sexual harassment. Sexual harassment in any form at the work place must be viewed seriously and the harasser should not be allowed to escape from the clutches of law. We say so because the same humiliates and frustrates a victim of sexual harassment, more particularly 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. (Para 2)
The Frontier Complaints Committee upon completion of the inquiry, submitted its report dated 17.01.2012 to the Frontier Headquarters SSB, New Delhi through the IG, Guwahati, stating that the allegations levelled by the complainant could not be said to have been fully established or proved. The Committee further observed that the complainant had lodged her first complaint after a delay of more than two years and had also failed to produce any documentary evidence in support of her allegations. (Para 5)
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. (Para 6)
During the pendency of the said writ petition, the Ministry of Home Affairs vide its Order dated 05.01.2016 referred to above held that the charges of sexual harassment levelled against the respondent stood duly proved and after due consideration of the respondent’s representation and the advice of the UPSC imposed a penalty of withholding 50% of the monthly pension on permanent basis. (Para 23)
The impugned judgment of the High Court is in three parts. In other words, the High Court allowed the writ petition and set aside the order of penalty on three grounds: (Para 25)
The High Court accordingly, allowed the writ petition vide its Impugned Judgment and Order and set-aside the penalty of permanently withholding 50% of the pension imposed upon the respondent. (Para 26)
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 upheld time to time by the first three inquiries and same was discussed in detail by the Hon’ble High Court at para 40, 43, 46 and 47 of the impugned judgment while rightly setting aside the impugned order of penalty. (Page no.-54, 70-74, 75-76 of the SLP) (Para 29(13))
The contention of the petitioner authority that the penalty of withholding of 50% of pension is just and sufficient. In this regard, the sole respondent submits that when all three inquiry reports exonerated him and even Hon’ble High Court acquitted him all his charges and set aside the impugned order of penalty then the sole respondent has proved his honesty and agitating his case for his reputation and honour as a decorated retired officer as DIG of SSB apart from unjustified penalty withholding 50% of pension.” (Para 29(14))
Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following four questions fall for our consideration: (Para 30)
I. Whether the Central Complaints Committee committed any egregious error in looking into the second complaint dated 18.09.2012?
II. 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?
III. Whether the Central Complaints Committee could be said to have based its findings on mere conjectures and surmises? Whether the case on hand is one of “No Evidence”?
IV. Whether the High Court committed any egregious error in passing the impugned judgment and order? (Para 30)
Rule 3C of the 1964 CCS Rules and the Proviso to Rule 14(2) of the 1965 CCS Rules along with the 2006 Standing Order encompass the entire legislative scheme for dealing with sexual harassment at workplace in connection with the Central civil services and posts. (Para 40)
It is well settled that when it comes to disciplinary proceedings, 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 (Para 42)
Whether the Central Complaints Committee could have looked into the second complaint dated 18.09.2012? (Para 44)
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 be constituted, there was only one complaint i.e., the complainant’s first complaint dated 30.08.2011, it necessarily meant that the Central Complaints Committee was mandated and empowered to inquire into only that complaint to which the committee owed its existence or in other words, the complaint that was before the Disciplinary Authority which led the authority to take the decision of constituting the Central Complaints Committee in the first place. (Para 45)
From the above case law, it becomes clear that it is open to the adjudicating authority to accept, rely and evaluate any evidence having probative value and come to its own conclusion, keeping in mind judicial approach and objectivity, exclusion of extraneous material and observance of the rule of natural justice and fair play. In short, the essence of the doctrine is that fair opportunity should be afforded to the delinquent at the enquiry and he should not be hit below the belt. Moreover, the jurisdiction of the High Court in such cases is indeed limited. The High Court should not exercise appellate powers and substitute its findings for the findings recorded by the disciplinary authority. It is no doubt true that if there is “no evidence” or the decision is “so unreasonable that no reasonable man could have ever come to it”, or the decision is “so outrageous” in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it “or that it is so absurd that one is satisfied that the decision-maker must have taken leave of his senses”, it calls for interference by a competent court of law. (Para 54)
In our opinion, mere violation of Rule 14(9) of the 1965 CCS Rules would not vitiate the entire inquiry. Rule 14(9) is only procedural. (Para 62)
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”. (Para 66)
There appears to be neither any statutory bar nor any logic to restrict the power of the complaints committee to put questions to the witnesses only to the context enumerated in the aforesaid provision. The complaints committee being an inquiry authority and in some sense equivalent to a presiding officer of the court as inferred from Sakshi (supra), must be allowed to put questions on its own if a proper, fair and thorough inquiry is to take place. (Para 73)
If the observations of the High Court are accepted, it would lead to a chilling effect, whereby the complaints committee which is deemed to be an inquiry authority would be reduced to a mere recording machine. (Para 74)
We fail to understand what other purpose the complaints committee which is deemed to be an ‘inquiry authority’ would serve, if we are to hold that the complaints committee cannot put questions to the witnesses. (Para 75)
The aforesaid would indicate that this is not a case of “no evidence”. Some evidence has come on record to indicate or rather substantiate the allegations of sexual harassment levelled 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. (Para 95)
In the result, the appeal succeeds and is hereby allowed. The impugned judgment and order passed by the High Court dated 15.05.2019 is hereby set-aside. (Para 104)
The order of penalty imposed by the Disciplinary Authority is hereby restored. However, we clarify that the appellant shall not effect any recovery of the amount already paid so far to the respondent. (105)
SUPREME COURT OF INDIA
2023 STPL(Web) 402 SC
2023 INSC 975
Union Of India And Others Vs. Dilip Paul
Civil Appeal No. 6190 of 2023-Decided on 06-11-2023.
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