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Union Of India vs Dilip Paul on 6 November, 2023

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REPORTABLE
2023 INSC 975
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6190 OF 2023

UNION OF INDIA AND OTHERS …APPELLANT(S)

VERSUS

DILIP PAUL …RESPONDENT(S)

JUDGMENT

J.B. PARDIWALA, J.:

For the convenience of the exposition, this judgement is divided in the

following parts: –

INDEX

A. FACTUAL MATRIX …………………………………………………………………………………….4

A.1 On-Spot/Preliminary Inquiry Report ………………………………………………………………..6

A.2 Frontier Complaints Committee’s Inquiry Report………………………………………………9

A.3 Central Complaints Committee’s Inquiry Report ……………………………………………..10

A.4
Signature Not Verified Defence of the Respondent ……………………………………………………………………………23
Digitally signed by
CHETAN KUMAR
Date: 2023.11.06
17:14:58 IST
Reason:

A.5 Proceedings before the CAT………………………………………………………………………….23

A.6 Proceedings before the High Court ………………………………………………………………..25

Page 1 of 104
B. IMPUGNED ORDER PASSED BY THE HIGH COURT ……………………………..26

C. SUBMISSIONS ON BEHALF OF THE APPELLANT …………………………………29

D. SUBMISSIONS ON BEHALF OF THE RESPONDENT ………………………………32

E. ANALYSIS ………………………………………………………………………………………………….37

E.1 Relevant Statutory Scheme and Case Law ………………………………………………………38

E.2 Whether the Central Complaints Committee could have looked into the second

complaint dated 18.09.2012? …………………………………………………………………………65

i) Principle of “Test of Prejudice” in Service Jurisprudence ………………………………71

E.3 Whether the Central Complaints Committee could have put questions to the

witnesses in a departmental inquiry? ………………………………………………………………81

i) “Fact Finding” Authority in Disciplinary Proceedings …………………………………..81

E.4 Whether the Central Complaints Committee based its findings on conjectures and

surmises? Whether the case on hand is one of “no evidence”? …………………………..87

i) Principle of “No Evidence” in Service Jurisprudence …………………………………….87

ii) Standard of Proof in Disciplinary Proceedings ……………………………………………..95

F. CONCLUSION ………………………………………………………………………………………….104

Page 2 of 104
The Registry is directed to anonymize the name of the complainant in this

Judgment, all orders that have been passed as well as in the records which are

publicly available.

1. This appeal is at the instance of the Union of India and others being the

unsuccessful respondents before the High Court and is directed against the

judgement and order dated 15.05.2019 passed by the Gauhati High Court in Writ

Petition (C) No. 7876 of 2015 by which the High Court allowed the writ petition

filed by the respondent herein (original petitioner) 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.

2. 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

Page 3 of 104
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 Field Assistant (Lady) (hereinafter referred to as the

“complainant”). She lodged a complaint (hereinafter referred to as the “first

complaint”) addressed to the Inspector General (for short, “IG”), Frontier

Headquarters, Guwahati with one copy each forwarded to the DG SSB, New Delhi,

Dy. IG, SSB, SHQ, Tezpur and the Chairperson of the National Women Rights

Commission, New Delhi inter alia alleging sexual harassment at the hands of the

respondent. The first complaint dated 30.08.2011 reads thus: –

“To,
The Inspector General,
Frontier Hqrs. SSB Guwahati

Subject: Regarding information of personal grievances
thereof.

Hon’ble Sir,
With due respect and humility, I the undersigned to draw
your kind attention to the following matter.

1. I have joined the office of the A.O Rangia in March, 2009, Since
my joining I have been entrusted the task of receiving telephones

Page 4 of 104
and Mobiles in the Control Room, CAP, Training, Sports. Then I
was the only female employee in the Office.

2. Having just started discharging my duties devotedly the AO Mr.
Dilip Paul started teasing me tactically. He started making phone
calls to me sometimes at night using unofficial and
multimeaninged word. Even he went to the extent of visiting my
residence where I stay alone with two of my children as my
husband is a state Government employee in Manipur.

3. Sometimes CAP work needs close working with the officers.
Taking the advantage he used to call me in his room and started
teasing indirectly and unnecessarily makes me sit for hours. One
day he went to the extent of saying “If you want to work happily
in my office, then agree to my saying.

4. I have been tolerating his acts since the last two and half years.
I could neither inform my husband nor lodge any written
complaint against such acts as it will be difficult to give evidence.
Unable to bear the situation I have verbally complaint to the then
DIG Shri S. C. Katoch over Telephone in May, 2010 about Mr.
Paul uncivilized altitude. The DIG did a favour and warned Mr.
Paul of severe consequences if he did not stopped misbehaving.

5. Since then, he stopped teasing but instead began torturing me
mentally. I have not been entrusted any work and ex-
communicated in the office. Throughout the day all I have to do
is sit silently in the office. If any of my colleagues talk with me,
Mr. Paul would 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”

Page 5 of 104
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 of sexual harassment, the staff members stated that

they had not seen anything in the office which could be termed as indirect teasing

or harassment to the complainant. The report reads as under: –

“To

The Inspector General,
Frontier Hqrs. SSB
Guwahati,

Sub: Inquiry on complaints lodged by Smt. X
FA(Lady) against Shri D. Paul, Area Organiser, SSB
Rangia.

Sir,
With reference to Ftr. Hqrs. Ghy. letter No. FG-II/VC-

VIG/08(Part)/15293 dt. 01-09-11, I visited the Office of the Area
Organiser, SSB Rangia on 1st November, 2011 and enquired into
the matter. All the staff available in the office on the date, were
summoned one after another individually, but none of them stated
to have seen or known Shri Dilip Paul, Area Organiser
misbehaving with Smt. X, FA(Lady) in the office. Further most of
them stated that due to reasons best known to Shri Paul, Area
Organiser, she was not allotted with any work for about 3 months

Page 6 of 104
before her release on transfer to Ftr. Hqrs. Ghy. and hence she
was often seen depress.

On the other hand, in his written statement Shri Dilip Paul,
Area Organiser pointed out that she was found even unfit in any
kind of assignment, and therefore, she was not assigned with any
work just before her transfer i.e. from 18-08-11. But it is also duty
of supervisory officer as administrator and manager to somehow
motivate his sub-ordinate staff and take work from them.

In the case of Smt. X, FA(Lady), Shri Dilip Paul, Area
Organiser, is found to have failed to motivate her and get work
from her.

Regarding allegation of tactical and indirect teasing and
making her to sit in the office chamber of Area Organiser, hours
together, none of the staff have stated to have ever seen such
situation in the office.

Hence the allegation of direct/indirect teasing and
harassments to Smt. X, FA(L) by Shri Dilip Paul could not be
ascertained. However, since Smt. X referred the case to National
Women Rights Commission, New Delhi the matter may be under
investigation by them.

Yours faithfully
Deputy Inspector General
SHQ, SSB, Tezpur”

b) Similarly, as per the report on the anonymous complaints, nothing

substantive was found as regards the allegations. The said report further noted that

during the inquiry the only thing that surfaced was the occasional rudeness and

uncordial inter-personal relations of the respondent with three of his subordinate

employees. Accordingly, the respondent was advised to improve his personnel

management and administration of the office. The said report reads as under: –

Page 7 of 104

“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 been no occasion when he
took interest of passing his own bill by neglecting that of others.

iii) Regarding granting of leave to staff and passing of bills etc. it is
found that no refusal or delay occurred. However, while granting
leave sometimes staff position and administrative convenience has
been taken in to account.

iv) It is observed that Area Organiser is using his own vehicle to
attend office.

v) On the basis of statement given by each staff and from the para-

wise reply given by the Area Organiser, it is observed that there is
no evidence regarding use of unnecessary slang language by the
Area Organiser, to his sub-ordinate staff but at times he used to be
rude to get the work done within the time limit, from some of the
subordinate staff.

Page 8 of 104

It is further observed that there is no cordial inter personal
relation between Shri P.B. Gohain, SAO, Shri K. Siga, SAO, Shri
J Singh, UDC and Area Organiser, Shri Dilip Paul. Therefore,
these officers/officials may be shifted out in order to bring back
cordial working atmosphere in the Area Office. At the same time,
Shri Dilip Paul, Area Organiser may be advised to improve upon
his man management, administration and other official dealings,
skills and tactics with his sub-ordinate staff to bring back
congenial atmosphere in the office.

Yours faithfully
Sd/-

Deputy Inspector General
Sector Hqrs. SSB, Tezpur”

A.2 Frontier Complaints Committee’s Inquiry Report

5. Simultaneously, a Frontier Complaints Committee comprising of three

women members was constituted by the IG, Frontier HQ, Guwahati to inquire into

the allegations of sexual harassment levelled by the complainant in her first

complaint dated 30.08.2011. 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. The relevant observations of

the Frontier Complaints Committee’s Inquiry Report are reproduced below: –

“7) Finding of inquiring authority: – The inquiry committee
assembled at FTR HQRs Guwahati on 25.01.2012 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
Page 9 of 104
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 Committee for the “combatised

and in-field officers” (ii) a Central Complaints Committee for the “non-combatised

officers”. At the time of lodging of the complaint, the respondent was serving as a

non-combatised officer i.e., Area Organizer. For such reason, the decision to

constitute the Central Complaints Committee had to be taken.

8. On 18.09.2012, the complainant through fax submitted a second complaint

containing additional allegations against the respondent (hereinafter referred to as

the “second complaint”) along with few other documents including the

anonymous complaints made against the respondent in October 2011.

Page 10 of 104

9. Accordingly, the Central Complaints Committee undertook the inquiry, and

in the preliminary hearing held on 27.09.2012, it decided to treat the complaint as

the charge-sheet in view of the fact that no specific charges were framed against

the respondent. The respondent was provided with all the relevant documents

including the original copy of the first complaint dated 30.08.2011. After,

confirming with the respondent as regards the receipt of all relevant documents,

the Central Complaints Committee inquired with the respondent whether he

pleaded guilty to the charges or not. The respondent pleaded not guilty and

categorically denied the charges levelled against him. The relevant portion of the

Central Complaints Committee’s Report reads as under: –

“VI. CHARGES WHICH WERE ADMITTED/ DROPPED/
NOT PRESSED:

Shri Dilip Paul, the charged officer did not plead guilty to any of
the allegations made by Smt. X, FA (Lady) vide complaint dated
30.08.2011 framed against him.”

10. The Central Complaints Committee in the course of its inquiry examined in

all 20 witnesses produced by the complainant (incl. 5 witnesses who were earlier

examined by the Frontier Level Complaints Committee) and 6 witnesses on behalf

of the respondent (incl. 1 witness earlier examined by the Frontier Level

Complaints Committee). Later, the Central Complaints Committee delineated the

charges to be inquired by it into 10 distinct points. The points of determination

framed by the Committee reads thus: –

Page 11 of 104

“VII. CHARGES ACTUALLY INQUIRED INTO AND POINTS
TO BE DETERMINED

The Complaints Committee is aware that aspects of this complaint
are implicated in the FIR that Shri Dilip Paul lodged on 26.08.2011
at P.S. Rangia, on the matter of an 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 Paul would use the pretext of summoning
into his room with work-related files in order to make comments of
a sexually loaded and personal nature, such as remarks about her
personal appearance and her looks, about how he wanted to marry
a Manipuri girl like her. He would also boast at times about his
sexual prowess and abilities in satisfying women who were unhappy
with their husbands. He would also make comments that had a
double meaning (of a sexual nature). On such occasions, he would
detain her in his office for inordinately long periods. This charge, if
substantiated, is admissible under the Vishaka definition of sexual
harassment as it involves sexually coloured remarks and other
unwelcome physical, verbal or non-verbal conduct of sexual
nature. Furthermore, it may also be shown to be discriminatory if it
is substantiated that Smt. X believed that her objection to Shri Dilip
Paul’s conduct would disadvantage her in connection with her
employment and her apprehension that it would create a hostile
work environment.

Page 12 of 104

Point 2: That Shri Dilip Paul would stare at her in the workplace,
such as the repeated incidents in which he would come out from his
office into the room that she was sitting, on the pretext of drinking
water. This charge, if substantiated, is admissible under the Vishaka
definition of sexual harassment as it involves sexually coloured
remarks and other unwelcome physical, verbal or non-verbal
conduct of sexual nature.

Point 3: That Shri Dilip Paul would attempt to touch her in an
unwelcome sexually determined manner in the workplace, such as
an incident when, on the pretext of teaching her to operate a laptop,
he come close to her and touched her shoulder and body. This
charge, if substantiated, is admissible under the Vishaka definition
of sexual harassment as it involves physical contact and advances
and other unwelcome physical, verbal or non-verbal conduct of
sexual nature. Furthermore, it may also be shown to be
discriminatory if it is substantiated that Smt. X believed that her
objection to Shri Dilip Paul’s conduct would disadvantage her in
connection with her employment and her apprehension that if would
create a hostile work environment.

Point 4: That Shri Dilip Paul would often make her work much
beyond office hours, often after 2000 hours. He would then offer to
drop here in his vehicle to her home. In general, Shri Dilip 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

Page 13 of 104
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, tum study tour se waapas aa jaaoo,
to tum Mrs Paul banogi.”

Point 7: That Shri Dilip Paul made unwelcome sexual advances to
her outside the workplace as well, where on several occasions, he
propositioned her, asking her to leave her husband and marry him
on the assurance that he would adopt her children as his own. Since
July 2009, Shri Dilip Paul made it a habit to visit her uninvited and
she felt unable to refuse entry to her hierarchically superior officer,
fearing future discrimination. These visits took place even late at
night. Several incidents have been cited in the complaint in this
connection.

a. That Shri Dilip Paul used to make unsolicited phone calls to her,
frequently at night and insisted on speaking to her for long
durations, sometime up to half and hour. The phone calls were
usually made between 19:00 and 20:00 hours, but occasionally,
she also received calls from Shri Dilip Paul as late as 4.30 a.m.
The substance of these calls mostly consisted of unwelcome
comments of sexual nature with the objective of making her
submit to his unwelcome sexual advances.

b. On one occasion, Shri Dilip Paul came to Smt. X’s home at
around 4.45 a.m. and insisted that she came out for a morning
walk with him. Fearful that if she refused, he would insist on
coming into her house at that hour, she accompanied him for a
short distance.

c. That, on one uninvited visit to Smt. X’s home, Shri Dilip Paul
came with a bottle of alcohol and sought to pressure her to join
him in drinking. When she tried to get away from him by going
to the kitchen, Shri D. Paul followed her and tried to force
himself upon her by embracing her. She somehow managed to
extricate herself and ran out the house, and remained there until
Shri D. Paul left the house.

d. That on his uninvited visits to Smt. X’s home, Shri Dilip Paul
showed an unnatural and unhealthy interest in her daughter. He
would call the child and draw her to him, and would then attempt
to hold her in a very ‘dirty’ manner. On the occasion that this

Page 14 of 104
happened, he only let go of the child when Smt. X called the child
to her in Manipuri.

e. That when Shri Dilip Paul visited her house one evening in April
2010, shortly after her return from the Study Tour to South India,
he made unwelcome sexual advances to her by his statement that
they would become one in a few days time and that she should
stop 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 Katoch. Smt. X confirmed to him that she had
indeed done so, and to scare him, told him that she had made a
written complaint. From that day on, Shri Dilip Paul withdrew all
the work that was assigned to her and assigned it to another
employee. Thereafter, and for the next three months, Smt. X was
made to sit idle in the office.

Point 9: In late August 2010, Smt. X approached IG S.K. Singhal
with a written complaint of sexual harassment in the workplace,
which also contained an application for her transfer to Ftr Hqr
Guwahati. Shri Singhal asked her to separate the two complaints of
sexual harassment in the workplace from the transfer request and
issued an order transferring her to Ftr Hqr Guwahati on 1

Page 15 of 104
September 2011. However, the transfer order did not contain
directions for the payment of TA/DA and did not provide her any
joining time.

Point 10: Smt. X has also complained that the now-quashed enquiry
into her complaint of sexual harassment in November 2011 did not
provide her sufficient time or opportunity to submit additional
documents and produce additional witnesses relating to the past
history of the accused. She has also stated that she was not afforded
the right of cross-examination of Shri Paul, or a chance to rebut his
alleged false statements. After the completion of the thereafter
quashed enquiry, she was not also provided a copy of the enquiry
report. In her deposition as well as the written submissions made to
the Complaints Committee, she also pleaded that due cognizance be
taken of the fact that, as a woman employee of the SSB, she was
entirely unaware of that a Complaints Committee mechanism for
dealing with complaints of sexual harassment was in place, and that
as a complainant, she had the right to submit a request for either
her own transfer or the transfer of the defendant. She has also
queried whether the promotion of Shri Dilip Paul on 11 September
2012 to the rank of DIG is maintainable when a complaint of sexual
harassment in the workplace against him was pending.”

11. While the Central Complaints Committee’s Inquiry was still pending, the

Ministry of Home Affairs i.e., the Competent Authority vide its order dated

30.11.2012 annulled the Frontier Level Complaints Committee’s Inquiry Report

on the ground that, the Chairperson of the said Frontier Level Complaints

Committee was of an equivalent rank as that of the respondent and 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”).

Page 16 of 104

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 COMPLAINT IS MADE (.) IN THE SAID INQUIRY THE
CHAIRPERSON AND SH. D.PAUL AGAINST WHOM THE
COMPLAINT/INQUIRY WAS MADE WERE IN THE SAME
STATUS AND IN THE MEAN TIME SHRI DILIP PAUL WAS
ALSO PROMOTED TO THE RANK OF DIG (.) AS SUCH THE
INQUIRY REPORT DATED 27.01.2012 OF SEXUAL
HARASSMENT AGAINST SHRI D.PAUL, THE THEN A.O.
NOW DIG WHICH WAS CONDUCTED BY THE BOARD
UNDER BELOW STATUS CHAIRPERSON AS PRESCRIBED IN
THE STANDING INSTRUCTIONS IS HEREBY CANCELLED
BY THE COMPETENT AUTHORITY ALONGWITH BOARD (.)
FTR. HQR GUWAHATI IS REQUESTED INFORM ALL
CONCERNED ACCORDINGLY(.)

—————————————————————————–
NO. 20/SSB. P-III/2011(4)-11606
DATED. THE 30.11.2012
SD/- 30/11/2012
ASSITANT DIRECTOR (PERS-M1)”
Page 17 of 104

13. The Central Complaints Committee submitted its inquiry report on

28.12.2012 to the Ministry of Home Affairs, wherein after recording its findings

on the aforesaid 10 points, held the charges of sexual harassment against the

respondent to have been proved. The committee concluded its report with the

following recommendations being reproduced below: –

“XI. RECOMMENDATIONS
The Complaints Committee finds that the charges of sexual
harassment in the workplace have been well proven. Moreover a
perusal of the charged officer’s defence statement, in which Shri
Dilip Paul attempts to slander and assassinate the complainant,
alone speaks volumes about his respect for women. In view of its
findings, the Complaints Committee makes the following
recommendations:

1. That Shri Dilip Paul be given exemplary punishment for his
sustained sexual harassment of Smt. X in the form of dismissal
from service, and he be stripped of promotion to DIG and the
Police medal awarded to him.

2. That Smt. X be reimbursed for the TA/DA that was denied to her
in her transfer to Ftr Hqrs Guwahati.

3. That Smt. X be provided a copy of the Complaints Committee
report.

4. That the SSB implement on a war-footing its standing order
1/2006 by organizing regular workshops for women employees
to sensitise them about the nature of sexual harassment and their
rights as women employees, as well as the procedures detailed
by the said order. Members of the Complaints Committees
instituted by the SSB should regularly tour the various divisions
and area offices of the SSB for such meetings.

5. Further, regular workshops must be held for senior officers of
the SSB to sensitise them with regards to their role and
responsibilities regarding the implementation of the standing
order 1/2006.”
Page 18 of 104

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 authority in respect of Group ‘A’ Officers vide their
UO No.20/SSB/Pers.III/11 (4)/Pers.III dated 06.08.2012 had
appointed Smt. B. Radhika, Joint Director, CCTNS-II, NCRB, New
Delhi as Chairman of the Complaint Committee to enquire into the
said complaint of sexual harassment against Shri Dilip Paul.

AND WHEREAS, the Chairman of the complaint committee
had handed over the complaint of sexual harassment dated
30.08.2011 submitted by the Complainant to Shri Dilip Paul, DIG
during the course of 1st hearing of enquiry held on 26.09.2012 at
New Delhi.

Shri Dilip Paul, DIG had denied the allegations of sexual
harassment levelled against him by the complainant.

Page 19 of 104

AND WHEREAS, the complainant had levelled various
allegations of sexual harassment against the said Shri Dilip Paul,
Area Organiser (now retired DIG), which are summarised here
as under –

(a) That the said Shri Dilip Paul started teasing her tactically. He
started making phone calls at night using unofficial and multi-
meaning words. At times, he would visit her residence, when she
was alone. Further, he would summon her into his room in his
official capacity and would make her sit for hours. That the said
Shri Paul on one pretext or the other used to make personal
contact with her body.

(b) That repeatedly, he used to tell the complainant that if she
kept him satisfied by cooperating with the sexual activities, she
shall be protected from all corners.

(c) That in one of the incident, when he had visited her residence,
he had entered the kitchen and embraced her.

(d) That he repeatedly proposed marriage to her.

(e) That the said Shri Paul had many a times tried to outrage her
modesty.

(f) That she had complained against the Officer to the then DIG
Shri S.C. Katoch, who had also warned the officer to desist from
doing such activities.

(g) That during the course of the proceedings, some additional
allegations were also levelled.

On these allegations, the Complaint Committee examined all the
relevant witnesses in presence of the accused. The accused was
afforded all the opportunities of defense.

AND WHEREAS, Smt. B. Radhika, Joint Director, CCTNS-II,
NCRB, New Delhi, Chairman of the complaint committee
submitted the inquiry report dated 28.12.2012 to the disciplinary
authority i.e. Ministry of Home Affairs. The Inquiry Officer in its
findings has proved all the charges levelled against the Charged
Officer.

Page 20 of 104

AND WHEREAS, in terms of DoPT 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
permanent basis. The gratuity amount, if not otherwise, required
may be released to him.

AND WHEREAS, Charged Officer Shri Dilip Paul, Ex-DIG had
filed an OA No. 181/2013 before the Hon’ble CAT Bench
Guwahati challenging there under constitution of Central
Complaint Committee and its report dated 28.12.2012. Hon’ble
CAT Guwahati vide its interim judgment dated 28.06.2013 had
imposed STAY on operation of enquiry report dated 28.12.2012
of Central Complaint Committee. The said OA was disposed by
Hon’ble CAT, Guwahati vide its judgment dated 03.07.2015
directing therein to complete the disciplinary proceedings within
four months from the date of receipt of the order.

After the disposal of the case by the Hon’ble CAT and vacation
of the interim directions of the Hon’ble Court, a copy of UPSC
advice dated 22.08.2013 was served upon the Charged Officer
vide Memorandum No.14/SSB/Pers-1/2013(1)/9923-24 dated
04.08.2015, which was duly acknowledged by the Charged
Page 21 of 104
Officer. The Charged Officer vide his letter dated 25.08.2015 had
submitted representation against the UPSC advice. All the
relevant issues have been accordingly examined by the Ministry
of Home Affairs being the Competent Disciplinary Authority. The
issues agitated by the Charged Officer were found devoid of merit
by the Disciplinary Authority. Accordingly, the charge of sexual
harassment of a woman at work place levelled against the
Charged Officer has been proved beyond shadow of doubt by a
Committee headed by Jt. Director, NCRB, which has been upheld
by the Disciplinary Authority.

NOW, THEREFORE, after careful consideration on the findings
of inquiry report, UPSC advice, written submission of Charged
Officer and other related records of the case, the President of
India has come to the conclusion that justice would be met if the
penalty of “withholding of 50% (fifty percent) of monthly pension
on permanent basis” is imposed upon the Charged Officer Shri
Dilip Paul, the then Area Organiser, now Ex-DIG, SSB.

ACCORDINGLY, the aforesaid penalty is hereby imposed upon
Shri Dilip Paul, Ex-DIG who had superannuated on 31.03.2013.
The gratuity amount, if not otherwise required may be released
to him.

(By order and in the name of the President)

Sd/-

(Vandan Saxena)
Assistant Director (Pers-I)”

16. It appears that during the pendency of the disciplinary proceedings, the

respondent 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.

Page 22 of 104

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 case of the respondent that he had lodged the first information

report at the Rangia Police Station being Case No. 348 of 2011 in connection with

the threats administered to him by way of a telephonic message.

A.5 Proceedings before the CAT

20. The respondent preferred OA No. 181 of 2013 before the Central

Administrative Tribunal, Guwahati (CAT), assailing (i) the constitution of the

Central Complaints Committee vide order dated 06.08.2012 (received via fax dated

03.09.2012), (ii) cancellation of the Frontier Complaints Committee’s Inquiry

Report vide order dated 30.11.2011 (received via Memorandum dated 10.12.2012

Page 23 of 104
of the Frontier, Headquarters, SSB, Guwahati) and the (iii) Central Complaints

Committee’s Inquiry Report dated 28.12.2012. The reliefs which were inter-alia

prayed for by the respondent in the captioned OA are reproduced below: –

“8. Relief(s) sought for:

The Hon’ble Tribunal be pleased to. set aside and quash the impugned –

(i) FAX message dated 03.09.2012 (Anexure-11) and the
constitution of the Central Legal Complaint Committee under
the Chairperson Smt. S. Radhika, IPS there under;

(ii) Memorandum dated 10.12.2012 (Annexure-16) and
cancellation of the enquiry report of the Frontier Level
Complaint Committee there under, and

(iii) the Enquiry report dated 28.12.2012. (Annexure-17) of the ·
Central Complaint Committee.”

21. The CAT, Guwahati vide its final judgement order dated 03.07.2015

dismissed the said OA No. 181 of 2013 observing that the Frontier Complaints

Committee had not been constituted as per the 2006 Standing Order, and as the

disciplinary proceedings were still pending, it refrained from expressing any

opinion in regard to the Central Complaints Committee’s Inquiry (except

expressing some reservations on the issue of penalty recommended therein) and

directed that the disciplinary proceedings be completed within 4-months. The

relevant portion reads as under: –

“61. Undisputedly, the Chairperson of the Frontier Level
Complaint Committee was Junior in the rank to the applicant,
inasmuch as the applicant got promotion in the rank of Area
Organizer on 22.12.2005, whereas the Chairperson was
promoted to the rank of complainant, which is not prescribed as
per Standing Operating Procedure of the department. The fact
that the Chairperson of the said committee was junior to the
applicant was not unknown to the respondents and the
respondents knowingly constituted the Frontier Level

Page 24 of 104
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 of the women in work
place and to that context, we are not giving any findings or any
opinion.

xxx xxx xxx

66. However, respondents are directed to complete the
Departmental Proceedings within four months from the date of
receipt of the order. …”

A.6 Proceedings before the High Court

22. Aggrieved with the aforesaid, the respondent preferred writ petition being

WP (C) No. 7876 of 2015 before the Guwahati High Court challenging the

judgement and order dated 03.07.2015 passed by the CAT, Guwahati.

23. 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

Page 25 of 104
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.

24. In such circumstances referred to above, the respondent amended his writ

petition pending before the Gauhati High Court and challenged the final order of

penalty dated 05.01.2016 in addition to the original reliefs prayed before the CAT,

Guwahati.

B. IMPUGNED ORDER PASSED BY THE HIGH COURT

25. 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: –

(i) First, the High Court took the view that the Central Complaints Committee

was constituted by the competent authority to inquire into only the first

complaint dated 30.08.2011, however, the Central Complaints Committee

during the course of its inquiry also looked into the allegations levelled in

the second Complaint dated 18.09.2012 which it could not have. The

relevant observations on this issue read as under: –

“41. What is important to note is that a complaint dated
18.09.2012 along with five Annexures was submitted by Smt. X
to the Chairperson of the CCC and copy of such complaint was
also made available to the petitioner. In the inquiry report the
above fact is not mentioned. It also does not appear that the said
complaint was brought to the notice of the disciplinary authority.
The CCC was mandated by the authority to inquire into the

Page 26 of 104
complaint dated 30.08.2011. However, it is manifest from the
inquiry report that the complaint submitted on 18.09.2012 was
also taken into consideration. It is noted by 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
complaint filed on 30.08.2011 after the petitioner had filed an
ejahar on 26.08.2011 1 have already been taken note of. A
perusal of the above ten points would go to show that Point Nos.
1 to 6, 7 (b) to (f), 9 and 10 are no way connected to the complaint
dated 30.08.2011. Two inquiries had also taken place and, after
more than a year later, after lodging of the complaint dated
30.08.2011, another complaint with many allegations was
submitted to the Chairperson of the CCC on 18.09.2012. In our
considered opinion, 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.”
(Emphasis supplied)

(ii) Secondly, the Central Complaints Committee while conducting the inquiry,

could not have assumed the role of a prosecutor by putting questions to the

Page 27 of 104
witnesses. According to the High Court, the same vitiated the inquiry

proceedings. The relevant observations on this issue are as under: –

45. Perusal of the order-sheets, more particularly, 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 petitioner 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 petitioner. 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 complaint. He was also put
fifteen questions by the CCC, which was styled as “examination-
in-chief”. …

46. It is noticed that the prosecution witnesses were also put
questions by the CCC, which is evident from the report of the
CCC under the heading “V. Examination of witnesses”, wherein
the CCC itself recorded that CCC had conducted the
examination-in-chief whenever it felt necessary. Thus, it is
evident that the CCC 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)

Page 28 of 104
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 rejected on
24.08.2011 and based on a threatening message issued by the
husband of the complainant on 26.08.2011, the petitioner had
lodged the ejahar on 26.08.2011. These aspects were, however,
not weighed by the CCC.”
(Emphasis supplied)

26. 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.

27. In such circumstances referred to above, the appellant is here before this

Court with the present appeal.

C. SUBMISSIONS ON BEHALF OF THE APPELLANT

28. Mr. K. Parmeshwar, the learned counsel appearing for the appellant in his

written submissions has stated thus: –

“I. There has been no violation of the principles of natural
justice as the Respondent was given an opportunity to defend
himself at every stage of the case.

a. It is submitted that the Central Complaints Committee was
constituted to look into the allegations made against the
Respondent as prescribed under Rule 14 of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965.

b. The said Committee conducted its first hearing on 26.09.2012
at 10:00 am. The Respondent was served with all the relevant
Page 29 of 104
documents including the complaint dated 20.08.2011. Further, the
list of ‘witnesses to be examined’ submitted by the Complainant on
18.09.2012 was also supplied to the Respondent. The Respondent
appeared and submitted that he will provide the name of his
counsel within an hour. Therefore, on his request, the proceedings
were adjourned to 2 PM. At 2 PM, he submitted an application
seeking 30 days’ time for engagement of counsel. The Committee
after taking into account his request granted one week’s time to
provide name of his counsel in order to complete the proceedings
within the stipulated time period.

c. It is important to mention that the next date of the hearing
was fixed for 26.11.2012 i.e., after 2 months. When the Respondent
was enquired about the name of his counsel, he submitted before
the Committee that he will represent himself and cross-examine
the witnesses and he himself examined as many as 11 witnesses.
Thus, the Respondent participated in the enquiry proceedings and
chose to defend himself despite sufficient time being given.

d. The allegation made by the Respondent that the Complainant
submitted a list of witnesses later 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, 2020
SCC OnLine SC 847 (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
Appellate Authority before taking any action against him.

Page 30 of 104

Therefore, this was not a case of “no opportunity” or “no
hearing” but a case of “adequate opportunity” and “fair hearing”
afforded to the appellant before imposing a penalty of withholding
50% pension amount.

II. No prejudice has been caused to the Respondent due to non-
supply of the Reports submitted in pursuance of an on-spot
enquiry and Frontier Level Complaint Committee.
a. It is submitted that the first alleged inquiry dated 13.12.2011
was pursuant to conducting of an on-spot enquiry and by the very
nature of it, is summary in nature and not an inquiry of the nature
envisaged in Vishaka Ors. v State of Rajasthan Ors, (1997) 6
SCC 241 line of cases and the SSB Standard Operating Procedure
on sexual harassment. Therefore, it cannot be equated with a
disciplinary enquiry.

b. It is relevant to note that before the report of on-the-spot
enquiry was submitted, Frontier Level Complaint Committee
(FLCC) was already constituted. The FLCC submitted its report
on 17.01.2012. However, the same was cancelled by Memorandum
dated 10.12.2012 on the ground that the Chairperson of the FLCC
was not an officer who was senior to the petitioner against whom
the complaint was made as required under Rule 9(b)(a) of the
Departmental Standard Operating Procedure on Sexual
Harassment. The said decision was conveyed to the Respondent
vide Memo dated 10.12.2012.

c. Further, it is submitted that even if in the FLCC reports no
allegations were found to be proved against the Respondent, same
would not have any material bearing on the facts as the said report
were subsequently annulled by the competent authority and a fresh
committee was constituted as per the rules.

III. The punishment imposed is proportionate to the offence
committed by the Respondent.

a. It is submitted that this Hon’ble Court in a number of cases
has held that the High Court while exercising its powers under
Article 226 would not interfere with the quantum of punishment
unless it shocks the conscience of the court.

b. Further, it has been held in catena of cases that scope of
judicial review in case of misconduct and imposition of penalty
under the service jurisprudence is limited as to whether the
Page 31 of 104
charges have been established on the basis of a fair enquiry. The
scope is limited to the decision-making process, not the decision
per se. This Hon’ble Court in a recent judgment
Aureliano
Fernandes vs State of Goa 2023 SCC OnLine SC 621 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 stop despite the warning and started torturing the Complainant
by not giving her work and making her sit idle till late in the night.
Having superannuated during the pendency of the proceedings
before the disciplinary authority, the Respondent superannuated
on 31.03.2013 as DIG. In such circumstances, it is submitted that
the punishment imposed by the disciplinary authority for
withholding 50% of monthly pension is proportionate to the
offence committed by the Respondent.”

D. SUBMISSIONS ON BEHALF OF THE RESPONDENT

29. Mr. Avijit Roy, the learned counsel appearing for the respondent in his

written submissions has stated thus: –

“1. The Hon’ble High Court in para 25 of the its judgment (Page

-39 of SLP) rightly held that the scope of judicial review in case of
misconduct and imposition of penalty under the service
jurisprudence is circumscribed as the court is only required to
examine as to whether the charges have been established on the

Page 32 of 104
basis of a fair enquiry as the Hon’ble High Court was also
conscious of the fact that judicial review is not against the decision
but the decision making process.

2. It is relevant to mention here that Rule 15 of the CCS (CCA)
Rules, 1965, more particularly sub-rule 1 and 2 of Rule 15 imposed
a categorical restriction on holding of a 2nd and further statutory
inquiry. But in the instant case, in spite of the fact that the sole
respondent was exonerated from the alleged complaint by three
successive enquiries i.e. i) the Fact Finding enquiry, ii) first the
statutory enquiry conducted by the duly constituted Frontier Level
Committee and iii) a second statutory enquiry (in fact it was 4th
enquiry in the series which includes inquiry on the basis of another
anonymous complaint) by the Central Complaint Committee was
instituted. Subject matter of all the facts were on the same set of
allegations.”

3. That, this Hon’ble Court in Vijay Shankar Pandey-Vs-U.O.I.
and another, reported in (2014) 10 SCC 589, held as follows:-

“26. It can be seen from the above that the normal rule is
that there can be only one enquiry. This court has also
recognized the possibility of a further enquiry in certain
circumstances enumerated therein. The decision however
makes it clear that the fact that the report submitted by the
enquiring authority is not acceptable to the disciplinary
authority, is not a ground for completely setting aside the
enquiry report and ordering a second enquiry.”

4. Further, in K.R. Deb-Vs-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.

Page 33 of 104

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 laid down in CCS (CCA) Rules, 1965.

7. The Hon’ble High Court in para 41 of its impugned judgment
(Page 54 of the SLP) rightly observed that a complaint dated
18.09.2012 along with five Annexures was submitted by Smt. X
(Complainant) to the Chairperson of the Central Complaint
Committee (CCC) and copy of such complaint was also made
available to the sole respondent. In the inquiry report the above
fact is not mentioned. It also does not appear that the said
complaint was brought to the notice of the disciplinary authority.
The Hon’ble High Court rightly held that the Central Complaint
Committee (CCC) was mandated by the authority to inquire into
the complaint dated 30.08.2011. However, it is manifest from the
inquiry report that the complaint submitted on 18.09.2012 was
also taken into consideration. It was also noted by the Hon’ble
High Court that 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. The Hon’ble High Court held that 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.

8. That, the Hon’ble High Court at para 43 of its judgment (
Page 70-71 of the SLP) rightly held that few points of allegations
are no way connected to the complaint dated 30.08.2011. The
Hon’ble High Court held that two inquiries had also taken place
and, after more than a year later, after lodging of the complaint

Page 34 of 104
dated 30.08.2011, another complaint with many allegations was
submitted to the Chairperson of the CCC on 18.09.2012.
Accordingly the Hon’ble High Court rightly held 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 complaint. He was also put
fifteen questions by the CCC, which was styled as “examination-
in-chief”

10. That, the Hon’ble High Court at para 46 of its judgment (
Page 74 of the SLP) rightly held that the prosecution witnesses
were also put questions by the CCC, which is evident from the
report of the CCC under the heading “V. Examination of
witnesses”, wherein the CCC itself recorded that CCC had
conducted the examination-in-chief whenever it felt necessary.
Thus, it is evident that the CCC also played the role of prosecutor,
which vitiates the proceeding.

11. That the Hon’ble High Court at para 47 of its judgment (Page
75-76 of the SLP) rightly held that the CCC had recorded that it
had noted that no witness examined by it had specific knowledge
of the events listed in. The Hon’ble High Court observed that
events alleged 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

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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. In this
regard, the Hon’ble High Court correctly held that the Central
Complaint Committee (CCC) ought to have recorded its finding
based on evidence on record and not on surmises and conjectures.

12. That, it may be mentioned here that the sole respondent was
most decorated officer in his cadre in SSB. He was awarded by the
President of India for his exemplary services. He was a recipient
of Indian Police Medal, DG’s Disc with Commendation (2 times),
Best Performing Officer in SSB (Best Area) for 04 consecutive
years from 2009, 2010, 2011 and 2012, recipient of various
appreciations in each month from all senior controlling officers
including DG of SSB. Now after putting in 35 glorious years of
service in SSB, he has been victimized and forced to proceed on
superannuation without a single penny from the department. Even
his personal accumulation under different heads has also not been
sanctioned to him. The sole respondent is still deprived of his
retiral benefit like gratuity and others as the gratuity due to him
cannot be withheld as the nature of allegation is not related any
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 upheld time to time by the first

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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)

14. 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.”

E. ANALYSIS

30. 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: –

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?

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E.1 Relevant Statutory Scheme and Case Law

31. Before adverting to the rival contentions canvassed on either side, we must

look into the statutory scheme relating to the complaints of sexual harassment.

32. Sexual harassment is a pervasive and deeply rooted issue that has plagued

the societies worldwide. In India, it has been a matter of serious concern, and the

development of laws to combat sexual harassment is a testament to the nation’s

commitment towards addressing this problem. Sexual harassment has existed in

India for centuries, but it was only in the latter half of the 20th century that it began

to gain legal recognition.

33. The turning point against the growing social menace of sexual harassment

of women at work place could be traced back to the pathbreaking decision of this

Court in Vishaka and Others v. State of Rajasthan and Others 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.

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2. The immediate cause for the filing of this writ petition is an
incident of alleged brutal gang rape of a social worker in a village
of Rajasthan. That incident is the subject-matter of a separate
criminal action and no further mention of it, by us, is necessary. The
incident reveals the hazards to which a working woman may be
exposed and the depravity to which sexual harassment can
degenerate; and the urgency for safeguards by an alternative
mechanism in the absence of legislative measures. In the absence of
legislative measures, the need is to find an effective alternative
mechanism to fulfil this felt and urgent social need.

3. Each such incident results in violation of the fundamental rights
of “Gender Equality” and the “Right to Life and Liberty”. It is a
clear violation of the rights under Articles 14, 15 and 21 of the
Constitution. One of the logical consequences of such an incident is
also the violation of the victim’s fundamental right under
Article
19(1)(g) “to practice any profession or to carry out any occupation,
trade or business”. Such violations, therefore, attract the remedy
under
Article 32 for the enforcement of these fundamental rights of
women. This class action under
Article 32 of the Constitution is for
this reason. A writ of mandamus in such a situation, if it is to be
effective, needs to be accompanied by directions for prevention, as
the violation of fundamental rights of this kind is a recurring
phenomenon. The fundamental right to carry on any occupation,
trade or profession depends on the availability of a “safe” working
environment. Right to life means life with dignity. The primary
responsibility for ensuring such safety and dignity through suitable
legislation, and the creation of a mechanism for its enforcement, is
of the legislature and the executive. When, however, instances of
sexual harassment resulting in violation of fundamental rights of
women workers under Articles 14, 19 and 21 are brought before us
for redress under
Article 32, an effective redressal requires that
some guidelines should be laid down for the protection of these
rights to fill the legislative vacuum.

xxx xxx xxx

7. In the absence of domestic law occupying the field, to formulate
effective measures to check the evil of sexual harassment of working
women at all workplaces, the contents of international conventions
and norms are significant for the purpose of interpretation of the
guarantee of gender equality, right to work with human dignity in

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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 equality

and guarantee against sexual harassment and abuse by laying down the essential

principles for preventing and redressing sexual harassment, including the creation

of internal complaints committee at workplaces, awareness programs, and punitive

measures against the offenders. These guidelines now popularly known as the

‘Vishaka Guidelines’ set a foundation for the development of comprehensive

legislation on sexual harassment. The relevant observations are as under: –

“16. In view of the above, and the absence of enacted law to provide
for the effective enforcement of the basic human right of gender
equality and guarantee against sexual harassment and abuse, more
particularly against sexual harassment at work places, we lay down
the guidelines and norms specified hereinafter for due observance
at all work places or other institutions, until a legislation is enacted
for the purpose. This is done in exercise of the power available
under
Article 32 of the Constitution for enforcement of the
fundamental rights and it is further emphasised that this would be

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treated as the law declared by this Court under
Article 141 of the
Constitution.

17. The GUIDELINES and NORMS pre-scribed herein are as
under:

HAVING REGARD to the definition of “human rights” in
Section 2(d) of the Protection of Human Rights Act, 1993.

TAKING NOTE of the fact that the present civil and penal
laws in India do not adequately provide for specific
protection of women from sexual harassment in work places
and that enactment of such legislation will take considerable
time,

It is necessary and expedient for employers in workplaces as well
as other responsible persons or institutions to observe certain
guidelines to ensure the prevention of sexual harassment of
women:

1. Duty of the Employer or other responsible persons in
workplaces and other institutions:

It shall be the duty of the employer or other responsible persons in
workplaces or other institutions to prevent or deter the commission
of acts of sexual harassment and to provide the procedures for the
resolution, settlement or prosecution of acts of sexual harassment
by taking all steps required.

2. Definition

For this purpose, sexual harassment includes such unwelcome
sexually determined behaviour (whether directly or by
implication) as:

a) physical contact and advances;

b) a demand or request for sexual favours;

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

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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 harassment as defined above at
the workplace should be notified, published and circulated in
appropriate ways.

(b) The rules/regulations of government and public sector bodies
relating to conduct and discipline should include rules/regulations
prohibiting sexual harassment and provide for appropriate
penalties in such rules against the offender.

(c) As regards private employers steps should be taken to include
the aforesaid prohibitions in the standing orders under the
Industrial Employment (Standing Orders) Act, 1946.

(d) Appropriate work conditions should be provided in respect of
work, leisure, health and hygiene to further ensure that there is no
hostile environment towards women at workplaces and no woman
employee should have reasonable grounds to believe that she is
disadvantaged in connection with her employment.

4. Criminal Proceedings:

Where such conduct amounts to a specific offence under the
Indian Penal Code or under any other law, the employer shall
initiate appropriate action in accordance with law by making a
complaint with the appropriate authority.

Page 42 of 104

In particular, it should ensure that victims, or witnesses are
not victimized or discriminated against while dealing with
complaints of sexual harassment. The victims of sexual harassment
should have the option to seek transfer of the perpetrator or their
own transfer.

5. Disciplinary Action:

Where such conduct amounts to misconduct in employment
as defined by the relevant service rules, appropriate disciplinary
action should be initiated by the employer in accordance with
those rules.

6. Complaint Mechanism:

Whether or not such conduct constitutes an offence under law
or a breach of the service rules, an appropriate complaint
mechanism should be created in the employer’s organization for
redress of the complaint made by the victim. Such complaint
mechanism should ensure time bound-treatment of complaints.

7. Complaints Committee

The complaint mechanism, referred to in (6) above, should
be adequate to provide, where necessary, a Complaints
Committee, a special counsellor or other support service,
including the maintenance of confidentiality.

The Complaints Committee should be headed by a woman
and not less than half of its member should be women. Further, to
prevent the possibility of any undue pressure or influence from
senior levels, such Complaints Committee should involve 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.

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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 requested to consider
adopting suitable measures including legislation to ensure that the
guidelines laid down by this order are also observed by the
employers in private sector.

12. These guidelines will not prejudice any rights available under
the
Protection of Human Rights Act, 1993.

18. Accordingly, we direct that the above guidelines and norms
would be strictly observed in all work places for the preservation
and enforcement of the right to gender equality of the working
women. These directions would be binding and enforceable in law
until suitable legislation is enacted to occupy the field. These writ
petitions are disposed of, accordingly.”

35. This was followed by another decision of this Court in Medha Kotwal Lele

and Others v. Union of India and Others reported in (2013) 1 SCC 297, decided

on 19.10.2012, wherein this Court anguished by the failure of the Union State

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Governments in complying with the Vishaka guidelines, more particularly, the

constitution of the complaints committee, issued a writ of continuing mandamus to

ensure due compliance of the guidelines. The relevant observations are reproduced

below: –

“43. As the largest democracy in the world, we have to combat
violence against women. We are of the considered view that the
existing laws, if necessary, be revised and appropriate new laws be
enacted by Parliament and the State Legislatures to protect women
from any form of indecency, indignity and disrespect at all places
(in their homes as well as outside), prevent all forms of violence—
domestic violence, sexual assault, sexual harassment at the
workplace, etc.—and provide new initiatives for education and
advancement of women and girls in all spheres of life. After all they
have limitless potential. Lip service, hollow statements and inert
and inadequate laws with sloppy enforcement are not enough for
true and genuine upliftment of our half most precious population—
the women.

44. In what we have discussed above, we are of the considered view
that guidelines in Vishaka (
Vishaka v. State of Rajasthan, (1997) 6
SCC 241 : 1997 SCC (Cri) 932) should not remain symbolic and the
following further directions are necessary until legislative
enactment on the subject is in place:

44.1. The States and Union Territories which have not yet carried
out adequate and appropriate amendments in their respective Civil
Services Conduct Rules (by whatever 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.

Page 45 of 104

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 entire
State shall now form adequate number of Complaints Committees
within two months from today. Each of such Complaints
Committees shall be headed by a woman and as far as possible in
such committees an independent member shall be associated.

44.4. The State functionaries and private and public sector
undertakings/organisations/bodies/institutions, etc. shall put in
place sufficient mechanism to ensure full implementation of Vishaka
(
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri)

932) guidelines and further provide that if the alleged harasser is
found guilty, the complainant victim is not forced to work
with/under such harasser and where appropriate and possible the
alleged harasser should be transferred. Further provision should be
made that harassment and intimidation of witnesses and the
complainants shall be met with severe disciplinary action.

44.5. The Bar Council of India shall ensure that all Bar
Associations in the country and persons registered with the State
Bar Councils follow Vishaka (
Vishaka v. State of Rajasthan, (1997)
6 SCC 241 : 1997 SCC (Cri) 932) guidelines. Similarly, the Medical
Council of India, Council of Architecture, Institute of Chartered
Accountants, Institute of Company Secretaries and other statutory
institutes shall ensure that the organisations, bodies, associations,
institutions and persons registered/affiliated with them follow the
guidelines laid down by Vishaka (
Vishaka v. State of Rajasthan,
(1997) 6 SCC 241 : 1997 SCC (Cri) 932). To achieve this, necessary
instructions/circulars shall be issued by all the statutory bodies
such as the Bar Council of India, Medical Council of India, Council
of Architecture, Institute of Company Secretaries within two months
from today. On receipt of any complaint of sexual harassment at
any of the places referred to above the same shall be dealt with by
the statutory bodies in accordance with Vishaka (
Vishaka v. State
of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932), guidelines
and the guidelines in the present order.”
(Emphasis supplied)
Page 46 of 104

36. The relevant statutory rules, applicable to the case on hand, are the Central

Civil Services (Conduct) Rules, 1964 (for short, “the 1964 CCS Rules”) and the

Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short,

“the 1965 CCS Rules”) enacted in exercise of the powers conferred 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.

Page 47 of 104

(2) Every Government servant who is incharge of a work place
shall take appropriate steps to prevent sexual harassment to
any woman at the work place.

Explanation. – (I) For the purpose of this rule, –

(a) “sexual harassment” includes any one or more of the following
acts or behaviour (whether directly or by implication) namely –

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct
of a sexual nature.

(b) the following circumstances, among other circumstances, if it
occurs or is present in relation to or connected with any act or
behaviour of sexual harassment may amount to sexual harassment:-

(i) implied or explicit promise of preferential treatment in
employment; or

(ii) implied or explicit threat of detrimental treatment in
employment; or

(iii) implied or explicit threat about her present or future
employment status; or

(iv) interference with her work or creating an intimidating or
offensive or hostile work environment for her; or

(v) humiliating treatment likely to affect her health or safety.

(c) “workplace” includes:-

(i) any department, organisation, undertaking, establishment,
enterprise, institution, office, branch or unit which is
established, owned, controlled or wholly or substantially
financed by funds provided directly or indirectly by the Central
Government;

(ii) hospitals or nursing homes;

(iii) any sports institute, stadium, sports complex or competition
or games venue, whether residential or not used for training,
sports or other activities relating thereto;

(iv) any place visited by the employee arising out of or during
the course of employment including transportation provided by
the employer for undertaking such journey;

Page 48 of 104

(v) a dwelling place or a house.

xxx xxx xxx

14. Procedure for imposing major penalties.-

(1) No order imposing any of the penalties specified in clauses (v)
to (ix) of Rule 11 shall be made except after an inquiry held, as far
as may be, in the manner provided in this rule and rule 15, or in the
manner provided by the
Public Servants (Inquiries) Act, 1850 (37
of 1850), where such inquiry is held under that Act.

(2) Whenever the disciplinary authority is of the opinion that there
are grounds for inquiring into the 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, SSB, New Delhi delineating the entire framework and procedure of the

grievances redressal mechanism relating to sexual harassment at workplace. The

2006 Standing Order is reproduced below: –

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“DIRECTORATE GENERAL, SASHASTRA SEEMA BAL
(SSB), R.K. PURAM, NEW DELHI-110066

2006
STANDING ORDER 1/2006

SUB: GRIEVANCES REDRESSAL MECHANISM : TO
REDRESS GRIEVANCES OF WOMEN / SEXUAL
HARASSMENT AT WORK PLACE.

1. The Constitution of India has given to women, the Fundamental
Right to equality and the Right not to be discriminated against
on grounds of religion, caste and sex. The constitution includes
a special provision in
Article 15(3), permitting the State to
make special provisions in favour of women by enacting
Laws/provisions so as to advance their social economic and
political condition and to accord them parity.

2. Sexual harassment of women at the workplace violates their
sense of dignity and right to earn a living with dignity and is
against their fundamental rights and their basic human rights.
The International Convention on the Elimination of all forms
of Discrimination Against Women (CEDAW) adopted in 1979
at Beijing also recognized the right of women to equality at the
work place and it states that women shall not be subjected to
sexual harassment at work places; as such harassment vitiates
the working environment.

3. The Hon’ble Supreme Court in the matter of Vishaka and others
Vs State of Rajasthan and others (AIR 1997 SC 3011) while
recognizing the International Convention and norms has
interpreted gender of women, in relation to work and held that
sexual harassment of women at the workplace, which is against
their dignity is a clear violation of the fundamental rights of
“Gender Equality” and the “Right to Life and Liberty”
enshrined in
Article -14, 15 and 21 of the Constitution of India.
Other logical consequences of such an incident is also the
violation of the victim’s fundamental right under
Article-19(1)

(g) ‘to practice any profession or to carry out any occupation,
trade or business’. Gender equality includes protection from
sexual harassment and right to work with dignity.

Page 50 of 104

4. In absence of enacted law to provide for the effective
enforcement of the basic human right of gender equality and
guarantee against sexual harassment and abuse more
particularly against harassment at work place, the Hon’ble
Supreme Court 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 coloured remarks.
iv) Eve-teasing.
v) Unsavoury remarks.
vi) Jokes causing or likely to cause awkwardness or
embarrassment.
vii) Innuendos and taunts.
viii) Gender based insults or sexist remarks.
ix) Unwelcome sexual overtone in any manner such as over
telephone
(obnoxious telephone calls) and the like.
x) Touching or brushing against any part of the body and
the like.

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xi) Displaying pornographic or other offensive or
derogatory pictures cartoons, pamphlets or sayings.

xii) Forcible physical touch or molestation.

xiii) Physical confinement against one’s will and other act
likely to violate one’s privacy.

xiv) Any other unwelcome physical verbal or non-verbal
conduct of sexual nature.

And includes any act or conduct by a person in authority
and belonging to one sex which denies or would deny equal
opportunity in pursuit of career development or otherwise
making the environment at the work place hostile or
intimidating to a person belonging to the other sex, only on the
ground of sex.

For any further interpretation, elaboration or explanation
in the, matter or any of its ingredient thereto, the judgement of
Hon’ble Supreme Court or the guidelines of National
Commission for Women may be referred to which are being
annexed.

7. DUTY OF THE HEAD OF THE UNIT/OTHER
RESPONSIBLE PERSONS IN WORK PLACES

1. He shall take all necessary steps at work place to prevent or
deter the commission of acts of sexual harassment or the
acts outraging/insulting the modesty of a women employee.

2. He shall ensure that women employee is not be treated as
sex object.

3. He shall provide for the proper grievance redressal
remedial mechanism in the unit for the purpose.

4. He would enforce express prohibition of sexual harassment
as defined above at the work place and get it notified,
published and circulated in appropriate ways.

5. He would augment appropriate work condition in respect of
work, leisure, health and hygiene to further ensure that there
is not hostile environment towards women at work places
and no women employee should have reasonable grounds to
believe that she is disadvantaged in connection with
employment.

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6. He will ensure suitable arrangements for prevention of
sexual harassment as a result of an act or omission by any
third party or outsider and would provide necessary and
reasonable assistance to the affected person in terms of
support and preventive actions.

8. CRIMINAL PROCEEDINGS

Where such conduct amounts to a specific offence under the
Indian Penal Code or under any other law, the head of
unit/competent authority shall initiate appropriate action in
accordance with law by making a complaint with the appropriate
authority.

In particular, it should ensure that victims or witnesses are
not victimized or discriminated against while dealing with
complaints of sexual harassment. The victims of sexual
harassment should have the option to seek transfer of the
perpetrator or their own transfer.

9. COMPLAINT COMMITTEES

Complaint Committees at two levels will exist in SSB i.e.
Central Complaint Committee at the Directorate and Frontier
Complaint Committee at the Frontier level.

(a) The Central Complaint Committee will consist of the
following:

i) Chairperson One lady officer of the rank of
DIG/Commandant rank to be
appointed by IG (Pers).
ii) Member-I One lady Gazetted Officer to be
appointed by IG (Pers).
iii) Member-II Nomination from an NGO
recognized by NCW or One
Counsellor from NGO (nomination
from an NGO recognized by NCW)
to be solicited by the Chairperson of
the Committee.
iv) Member-III AD (Legal) Force Headquarters or
the senior most Law Officer.

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(b) Frontier level Complaint Committee will be constituted as
follows: –

i) Chairperson One Gazetted rank lady officer to be
appointed by the Frontier IG.
ii) Member-I One counsellor from an NGO
(Nomination from an NGO recognized
by NCW to be solicited by the
Chairperson of the Committee)
iii) Member-II Legal Officer of Frontier
(Ex-officio member)

1. Chairman of committee should be senior to the officer / official
against whom the complaint is made.

2. Wherever Frontier IG does not have a higher rank woman
officer to be appointed in the Frontier level committee (i.e.,
there is no SSB, officer of commensurate rank available, in case
where complaints are against senior officers) IG shall
immediately get in touch with IG (Pers) and seek placement of
an officer from any Central Govt. organization.

3. Where the required number of senior officers are not available
within the organization, member should be co-opted from other
Central Government Departments.

4. In case complaint is against the Frontier IG himself, the matter
will be viewed / looked into at the level of Central Complaint
Committee.

5. Proper safety and security of the complainant and witnesses
shall be ensured by the concerned unit / office.

(c) The charter of the Central Complaint Committee and the
Frontier Complaint Committee would, inter alia, include: –

CENTRAL COMPLAINT FRONTIER
COMMITTEE COMPLAINT
COMMITTEE
1. Enquiry into any matter of sexual 1. Enquiry into any matter
abuse in the organization – Suo of sexual abuse under
moto or on complaint with the the Frontier.
option to enquire at its own level
or assign the task to Frontier
Committee.

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2. Monitoring all such cases 2. Keeping Central
including reports received from Complaint Committee
Frontiers. informed of all such
matters coming to light
and work in close
liaison with the Central
Complaint Committee
seeking proper
guidance as required.
3. Ensuring follow up action to its 3. Submitting enquiry
logical end. report to the Frontier IG
and to solicit further
required action.

4. Submitting annual report to 4. Submission of
MHA, other bodies as required. periodical reports to
central complaint
committee as may be
prescribed by the
Central Committee from
time to time.

5. Any other duties assigned by DG. 5. Any other duties
assigned by the Frontier
I’sG

6. Secretarial and logistical 6. The secretarial and
assistance to the Central logistical assistance to
Complaint Committee will be FTR Committees would
provided by Pers Branch of be provided by Frontier
Directorate General. Central I’sG from its local
Complaint Committee shall route resources. Frontier IG
its reports through IG (Pers) who shall ensure that all
would keep ADG and DG, SSB complaints are properly
apprised and ensure proper disposed of to their
action. logical end. He would
exercise all powers of
the head of the
department in this
respect under his
jurisdiction unless a
particular matter falls
within the jurisdiction of

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the Central Committee
or it would otherwise be
appropriate for the
Central Committee to
take up the matter or it
requires further action
at the level of IG
(Pers/FHQ)/DG, SSB.

10. COMPLAINT MECHANISM

This procedure / mechanism has been devised in pursuance
of Hon’ble Supreme Court Judgement dated 26.04.2004 in the
matter of Medha Kotwal Lele Ors Versus UOI Ors. WP
(Crl) No. 173-177-1999 and Govt. of India, Ministry of
Personnel, Public Grievances Pensions, DOPT
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 complainant and other details, which might
disclose the identity of the Complainant.

iv) As soon as an enquiry into any complaint of women
regarding sexual harassment is entrusted to the
Complaints Committee, the Chairperson shall open a
daily order sheet to proceed with the case as

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envisaged in Rule 14 of CCS (CCA) Rules 1965 and
maintain the same during the course of entire
enquiry.

v) The entries in the daily order sheet are to be signed
by the Chairperson of Complaints Committee,
alleged Officer / official and witnesses as the case
may be.

vi) In the preliminary hearing the Chairperson should
serve gist of complaint to the alleged officer/ official
(in the form of articles of charge) and he should
formally be asked whether he pleads guilty or
not based on the complaint.

vii) If the charges are denied, the complainant should be
asked to produce her witnesses if any before the
Complaints Committee for recording their
statements.

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 Vs UOI Others 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 Committee.

ix) The cross examination of witnesses should be with
strict regard to decency and should not be against the
dignity of the women.

x) During the course of enquiry by the Complaints
Committee, the question of relevance is to be decided
by the Chairperson and aggrieved provided with
opportunity of being heard.

xi) There may not be any Presenting Officer but a
Defence Assistant shall be provided during the
course of enquiry and rest of the enquiry shall be
completed as per the provisions provided in CCS

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(CCA) Rules 1965 or as per the provisions of any
other Rules.

xii) The statement of witnesses to be authenticated by the
signature of witnesses, the alleged officer/official and
the Complaints Committee Chairperson.

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 Others Vs
Union of India and Others) 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 be treated as an
enquiry report.

xvi) On receipt of the findings from Complaints
Committee, copy of the same should be provided to
the alleged officer/official for his reply
representation by the disciplinary authority (Govt in
the case of the Group ‘A’ Officers).

xvii) On receipt of representation if any submitted by the
alleged officer/official, the case should be finally
decided by the competent authority as per procedure
laid in CCS (CCA) Rules or CRPF Act Rules as the
case may be.

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11. PERIODICAL REPORT
The Frontier Complaints Committee shall prepare
periodical reports giving a full account of its activities during
the period and forward a copy thereof to the Central Complaint
Committee in the following format:-

1. Date of incident.

2. Place of incident.

3. Name of complainant with Rank/Unit/GC/Office.

4. Name against whom complaint is made with
rank/unit/GC/office.

5. Allegation in brief.

6. Date of receipt of complaint.

7. Whether any FIR lodged to Police, if so, outcome of Police
investigation report.

8. Action taken on the complaint/ present status supported
with authenticated copy of relevant documents.

The Central Complaint Committee will submit annual
report to the Ministry of Home Affairs and other bodies
wherever required. The Frontiers will submit report to
Directorate half yearly i.e. in June and December.

12.      ONUS OF           THE      SUPERVISORY/INSPECTING
OFFICERS

❖ The senior officers during their visit/ inspections of the
subordinate formations will reiterate the instruction in their
meeting and Sainik Sammelans.

❖ They will review the complaints received by them in their
respective offices.

❖ They will ensure that proper working environment is
provided in their subordinate offices for the women and they
are not discriminated on any point.

13. AWARENESS
❖ Awareness of the right of female employees in this regard
should be created in particular by prominently notifying
and displaying the guidelines at appropriate places.
❖ Women employees should be allowed to raise issues of
sexual harassment at work places through personal
interviews, orderly rooms, welfare meetings, Sainik
Sammelans etc.

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14. SAVINGS
Nothing contained in these standing orders shall prejudice
any right available to the employee or prevent any person from
seeking any legal remedy under the National Commission for
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 7 of above
SOP.

4. The IsG concerned will monitor such visits of the committee
members to ensure positive results.”

40. 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.

Page 60 of 104

41. The Proviso to Rule 14(2) of the 1965 CCS Rules, provides that in an inquiry

into sexual harassment under the 2006 Standing Order, the general procedure laid

down in the 1965 CCS Rules shall also be applicable as far as practicable. The

expression “as far as practicable” was examined by this Court in Aureliano

Fernandes v. State of Goa and Others reported in 2023 SCC OnLine SC 621

wherein it was held that the same is to provide flexibility for achieving a balance

between sensitivity and fairness in an inquiry into sexual harassment. It further

held that while a detour may be made from the CCS Rules however the same must

not be unreasonable. The relevant observations are given below: -

“51. As can be seen from the above, when the misconduct
relates to a complaint of sexual harassment at the work place,
the Complaints Committee constituted by the respondent no. 2-
University to examine such a complaint, dons the mantle of the
inquiring authority and is expected to conduct an inquiry in
accordance with the procedure prescribed in the rules, as far as
may be practicable. The use of the expression “as far as is
practicable” indicates a play in the joints available to the
Complaints Committee to adopt a fair procedure that is feasible
and elastic for conducting an inquiry in a sensitive matter like
sexual harassment at the workplace, without compromising on
the principles of natural justice. Needless to state that the fact
situation in each case will vary and therefore no set standards or
yardstick can be laid down for conducting the inquiry in
complaints of this nature. However, having regard to the serious
ramifications with which the delinquent employee may be visited
at the end of the inquiry, any discordant note or unreasonable
deviation from the settled procedures required to be followed,
would however strike at the core of the principles of natural
justice, notwithstanding the final outcome.”
(Emphasis supplied)

42. 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-

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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 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 the power to hold
inquiry has jurisdiction, power and authority to reach a finding of
fact or conclusion. But that finding must be based on some
evidence. Neither the technical rules of
Evidence Act nor of proof
of fact or evidence as defined therein, apply to disciplinary
proceeding. When the authority accepts that evidence and
conclusion receives support therefrom, the disciplinary authority
is entitled to hold that the delinquent officer is guilty of the charge.
The Court/Tribunal in its power of judicial review does not act as
appellate authority to reappreciate the evidence and to arrive at
its own independent findings on the evidence. The Court/Tribunal
may interfere where the authority held the proceedings against the
delinquent officer in a manner inconsistent with the rules of
natural justice or in violation of statutory rules prescribing the
mode of inquiry or where the conclusion or finding reached by the
disciplinary authority is based on no evidence. If the conclusion or
finding be such as no reasonable person would have ever reached,
the Court/Tribunal may interfere with the conclusion or the
finding, and mould the relief so as to make it appropriate to the
facts of each case.”
(Emphasis supplied)

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43. As regards the manner in which the court ought to exercise its powers of

judicial review in matters of disciplinary proceedings particularly one pertaining

to sexual harassment, this Court in Apparel Export Promotion Council v. A.K.

Chopra reported in (1999) 1 SCC 759 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. The relevant observations are reproduced below: -

“28. … In a case involving charge of sexual harassment or
attempt to sexually molest, the courts are required to examine the
broader probabilities of a case and not get swayed by
insignificant discrepancies or narrow technicalities or the
dictionary meaning of the expression "molestation". They must
examine the entire material to determine the genuineness of the
complaint. The statement of the victim must be appreciated in the
background of 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

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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 hearing, learned counsel for the
respondent submitted that the respondent was repentant of his
actions and that he tenders an unqualified apology and that he
was willing to also go and to apologise to Miss X. We are afraid,
it is too late in the day to show any sympathy to the respondent
in such a case. Any lenient action in such a case is bound to have
demoralising effect on working women. Sympathy in such cases
is uncalled for and mercy is misplaced.”
(Emphasis supplied)

44. Similarly, in Union of India and Others v. Mudrika Singh reported in 2021

SCC OnLine SC 1173, this Court speaking through one of us Dr. D.Y.

Chandrachud, CJI., cautioned the courts from invalidating inquiries into sexual

harassment on specious pleas and hyper-technical interpretations of the service

rules. The relevant observations are reproduced hereunder: -

“47. Before we conclude our analysis, we would also like to
highlight a rising trend of invalidation of proceedings inquiring into
sexual misconduct, on hyper-technical interpretations of the
applicable service rules. For instance, the Sexual Harassment of
Women at Workplace (Prevention, Prohibition, and
Redressal) Act
2013 penalizes several misconducts of a sexual nature and imposes
a mandate on all public and private organizations to create
adequate mechanisms for redressal. However, the existence of
transformative legislation may not come to the aid of persons
aggrieved of sexual harassment if the appellate mechanisms turn
the process into a punishment. It is important that courts uphold the
spirit of the right against sexual harassment, which is vested in all
persons as a part of their right to life and right to dignity under
Article 21 of the Constitution. It is also important to be mindful of
the power dynamics that are mired in sexual harassment at the
workplace. There are several considerations and deterrents that a
subordinate aggrieved of sexual harassment has to face when they
consider reporting sexual misconduct of their superior. In the
present case, the complainant was a constable complaining against
the respondent who was the head constable - his superior. Without
commenting on the merits of the case, it is evident that the
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discrepancy regarding the date of occurrence was of a minor nature
since the event occurred soon after midnight and on the next day.

Deeming such a trivial aspect to be of monumental relevance, while
invalidating the entirety of 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 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.

46. At this juncture, it would be apposite to refer to the 2006 Standing Order

more particularly Clause 10(i), which prescribes the first step for making a
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complaint of sexual harassment and provides how the complaint and redressal

mechanism for sexual harassment is set-into motion. The said provision is being

reproduced below: -

“10. COMPLAINT MECHANISM

i) Any person aggrieved shall prefer a complaint before the
Complaints Committee at the earliest point of time.”

47. A bare perusal of the aforementioned provision makes it abundantly clear

that the complaint mechanism begins with a complaint being made to the

“complaints committee” and as such any inquiry into the complaint of sexual

harassment under Rule 14 of the 1965 CCS Rules read with the 2006 Standing

Order begins the moment any complaint is made to a complaints committee

specified in Clause 9, be it a Frontier Complaints Committee or a Central

Complaints Committee.

48. The use of the words “Any person aggrieved shall prefer a complaint before

the Complaints Committee at the earliest point of time” connotes two pertinent

aspects; (i) first, that the word “prefer” stipulates that the said provision is an

enabling provision that permits a person from making a complaint of sexual

harassment directly to the complaints committee which is the designated

committee for looking into such complaints and (ii) secondly, the said provision

contains nothing which could be construed to inhibit the filing of a subsequent or

additional complaint before the complaints committee.

Page 66 of 104

49. What emerges from the aforesaid is that irrespective of whether a prior

complaint had already been made to any authority, a complaint regarding sexual

harassment could be made under Clause 10(i) of the 2006 Standing Order to the

complaints committee as-well. Whether the additional or second complaint should

be entertained by the complaints committee is a completely 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 where

after a complaints committee had come into existence, a complaint may be

preferred to it.

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51. In the aforesaid context, we may refer to the decision of this Court in State

of Haryana and Another v. Rattan Singh reported in (1977) 2 SCC 491, wherein

the Court held that all material that are logically probative to a prudent mind ought

to be permissible in disciplinary proceedings keeping in mind the principles of fair

play. The relevant observations are reproduced below: -

“4. It is well settled that in a domestic enquiry the strict and
sophisticated rules of evidence under the
Indian Evidence Act may
not apply. All materials which are logically probative for a prudent
mind are permissible. There is no allergy to hearsay evidence
provided it has reasonable nexus and credibility. It is true that
departmental authorities and administrative tribunals must be
careful in evaluating such material and should not glibly swallow
what is strictly speaking not relevant under the
Indian Evidence
Act. For this proposition it is not necessary to cite decisions nor
text books, although we have been taken through case law and
other authorities by counsel on both sides. The essence of a
judicial approach is objectivity, exclusion of extraneous materials
or considerations and observance of rules of natural justice. Of
course, fairplay is the basis and if perversity or arbitrariness, bias
or surrender of independence of judgment vitiate the conclusions
reached, such finding, even though of a domestic tribunal, cannot
be held good. However, the courts below misdirected themselves,
perhaps, in insisting that passengers who had come in and gone
out should be chased and brought before the tribunal before a
valid finding could be recorded. The ‘residuum’ rule to which
counsel for the respondent referred, based upon certain passages
from American Jurisprudence does not go to that extent nor does
the passage from Halsbury insist on such rigid requirement. The
simple point is, was there some evidence or was there no evidence
— not in the sense of the technical rules governing regular court
proceedings but in a fair commonsense way as men of
understanding and worldly wisdom will accept. Viewed in this
way, sufficiency of evidence in proof of the finding by a domestic
tribunal is beyond scrutiny. Absence of any evidence in support of
a finding is certainly available for the court to look into because it
amounts to an error of law apparent on the record.”

(Emphasis supplied)

Page 68 of 104

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 it must be based upon material which tends logically
to show the existence or non-existence of facts relevant to the issue
to be determined, or to show the likelihood or unlikelihood of the
occurrence of some future event the occurrence of which would be
relevant. It means that he must not spin a coin or consult an
astrologer, but that he must take into account any material which,
as a matter of reason, has some probative value. If it is capable of
having any probative value, the weight to be attached 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.”

(Emphasis supplied)

Page 69 of 104

54. 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.

55. As discussed before, this Court in Apparel Export Promotion Council

(supra) had held that in sensitive matters such as sexual harassment misconduct,

there is an obligation to look into the entire evidence of the complainant that

inspires confidence. What is discernible from the above is that in disciplinary

proceedings documents and materials such as evidence or pleadings be it statement

of defence or a complaint should be readily entertained by the courts and more so

Page 70 of 104
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 prejudice”.

i) Principle of “Test of Prejudice” in Service Jurisprudence

57. The “test of prejudice” is a well settled canon of law that may be applied

where any procedural impropriety or violation of rule of audi alteram is alleged.

This Court in State Bank of Patiala and Others v. S.K. Sharma reported in (1996)

3 SCC 364 held that the test is to ascertain whether the violation of such procedure

or process resulted in a prejudice being caused or a loss of fair hearing. The relevant

observations are reproduced below: -

Page 71 of 104

“11. ... Does it mean that any and every violation of the
regulations renders the enquiry and the punishment
void or whether the principle underlying Section 99 CPC and
Section 465 CrPC is applicable in the case of disciplinary
proceedings as well. In our opinion, the test in such cases should
be one of prejudice, as would be later explained in this judgment.
But this statement is subject to a rider. The regulations may
contain certain substantive provisions, e.g., who is the competent
authority to impose a particular punishment on a particular
employee/officer. Such provisions must be strictly complied with.
But there may be any number of procedural provisions which
stand on a different footing. We must hasten to add that even
among procedural provisions, there may be some provisions
which are of a fundamental nature in the case of which the theory
of substantial compliance may not be applicable. For example,
take a case where a rule expressly provides that the delinquent
officer/employee shall be given an opportunity to produce
evidence/material in support of his case after the close of
evidence of the other side. If no such opportunity is given at all
in spite of a request therefor, it will be difficult to say that the
enquiry is not vitiated. But in respect of many procedural
provisions, it would be possible to apply the theory of substantial
compliance or the test of prejudice, as the case may be. The
position can be stated in the following words: (1) Regulations
which are of a substantive nature have to be complied with and
in case of such provisions, the theory of substantial compliance
would not be available. (2) Even among 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. (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

Page 72 of 104

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
illustrate — take a case where the person is dismissed from
service without hearing him altogether (as
in Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66 : (1963) 2
WLR 935] ). It would be a case falling under the first category
and the order of dismissal would be invalid — or void, if one
chooses to use that expression (Calvin v. Carr [1980 AC 574 :
(1979) 2 All ER 440 : (1979) 2 WLR 755, PC] ). But where the
person is dismissed from service, say, without supplying him a
copy of the enquiry officer's report (
Managing Director,
ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (LS)
1184 : (1993) 25 ATC 704] ) or without affording him a due
opportunity of cross-examining a witness (K.L. Tripathi [(1984)
1 SCC 43 : 1984 SCC (LS) 62] ) it would be a case falling in
the latter category — violation of a facet of the said rule of
natural justice — in which case, the validity of the order has to
be tested on the touchstone of prejudice, i.e., whether, all in all,
the person concerned did or did not have a fair hearing. It would
not be correct — in the light of the above decisions to say that for
any and every violation of a facet of natural justice or of a rule
incorporating such facet, the order passed is altogether void and
ought to be set aside without further enquiry. In our opinion, the
approach and test adopted in B. Karunakar [(1993) 4 SCC 727 :
1993 SCC (LS) 1184 : (1993) 25 ATC 704] should govern all
cases where the complaint is not that there was no hearing (no
notice, no opportunity and no hearing) but one of not affording
a proper hearing (i.e., adequate or a full hearing) or of violation
of a procedural rule or requirement governing the enquiry; the
complaint should be examined on the touchstone of prejudice as
aforesaid.

xxx xxx xxx

33. We may summarise the principles emerging from the above
discussion. (These are by no means intended to be exhaustive and

Page 73 of 104
are evolved keeping in view the context of disciplinary enquiries
and orders of punishment imposed by an employer upon the
employee):

(1) An order passed imposing a punishment on an
employee consequent upon a disciplinary/departmental
enquiry in violation of the rules/regulations/statutory
provisions governing such enquiries should not be set
aside automatically. The Court or the Tribunal should
enquire whether (a) the provision violated is of a
substantive nature or (b) whether it is procedural in
character.

(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, no interference is called for. In this connection,
it may be remembered that there may be certain
procedural provisions which are of a fundamental
character, whose violation is by itself proof of prejudice.

The Court may not insist on proof of prejudice in such
cases. As explained in the body of the judgment, take a
case where there is a provision expressly providing that
after the evidence of the employer/government is over, the

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employee shall be given an opportunity to lead defence in
his evidence, and in a given case, the enquiry officer does
not give that opportunity in spite of the delinquent
officer/employee asking for it. The prejudice is self-
evident. No proof of prejudice as such need be called for
in such a case. To repeat, the test is one of prejudice, i.e.,
whether the person has received a fair hearing
considering all things. Now, this very aspect can also be
looked at from the point of view of directory and
mandatory provisions, if one is so inclined. The principle
stated under (4) hereinbelow is only another way of
looking at the same aspect as is dealt with herein and not
a different or distinct principle.

(4)(a) In the case of a procedural provision which is not of
a mandatory character, the complaint of violation has to
be examined from the standpoint of substantial
compliance. Be that as it may, the order passed in violation
of such a provision can be set aside only where such
violation has occasioned prejudice to the delinquent
employee.

(b) In the case of violation of a procedural provision,
which is of a mandatory character, it has to be ascertained
whether the provision is conceived in the interest of the
person proceeded against or in public interest. If it is
found to be the former, then it must be seen whether the
delinquent officer has waived the said requirement, either
expressly or by his conduct. If he is found to have waived
it, then the order of punishment cannot be set aside on the
ground of the said violation. If, on the other hand, it is
found that the delinquent officer/employee has not waived
it or that the provision could not be waived by him, then
the Court or Tribunal should make appropriate directions
(include the setting aside of the order of punishment),
keeping in mind the approach adopted by the Constitution
Bench in B. Karunakar [(1993) 4 SCC 727 : 1993 SCC
(LS) 1184 : (1993) 25 ATC 704] . The ultimate test 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

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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) has to be examined from the
standpoint of prejudice; in other words, what the Court or
Tribunal has to see is whether in the totality of the
circumstances, the delinquent officer/employee did or did
not have a fair hearing and the orders to be made shall
depend upon the answer to the said query. [It is made clear
that this principle (No. 5) does not apply in the case of rule
against bias, the test in which behalf are laid down
elsewhere.]

(6) While applying the rule of audi alteram partem (the
primary principle of natural justice) the
Court/Tribunal/Authority must always bear in mind the
ultimate and overriding objective underlying the said rule,
viz., to ensure a fair hearing and to ensure that there is no
failure of justice. It is this objective which should guide
them in applying the rule to varying situations that arise
before them.

(7) There may be situations where the interests of State
or public interest may call for a curtailing of the rule of
audi alteram partem. In such situations, the Court may
have to balance public/State interest with the requirement
of natural justice and arrive at an appropriate decision.”
(Emphasis supplied)

Page 76 of 104

58. In the case of State of U.P. v. Harendra Arora and Another reported in

(2001) 6 SCC 392, this Court further expanded the applicability of the “Test of

Prejudice” to even procedural provisions which are fundamental in nature with the

following relevant observations being reproduced below: -

“13. The matter may be examined from another viewpoint. There
may be cases where there are infractions of statutory provisions,
rules and regulations. Can it be said that every such infraction
would make the consequent action void and/or invalid? The statute
may contain certain substantive provisions, e.g., who is the
competent authority to impose a particular punishment on a
particular employee. Such provision must be strictly complied with
as in these cases the theory of substantial compliance may not be
available. For example, where a rule specifically provides that the
delinquent officer shall be given an opportunity to produce
evidence in support of his case after the close of the evidence of
the other side and if no such opportunity is given, it would not be
possible to say that the enquiry was not vitiated. But in respect of
many procedural provisions, it would be possible to apply the
theory of substantial compliance 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

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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) of the 1965

CCS Rules. The said provision reads as under: -

“14. Procedure for imposing major penalties.
(9) If the Government servant who has not admitted any of the
articles of charge in his written statement of defence or has not
submitted any written statement of defence, appears before the
inquiring authority, such authority shall ask him whether he is
guilty or has any defence to make and if he pleads guilty to any of
the articles of charge, the inquiring authority shall record the
plea, sign the record and obtain the signature of the Government
servant thereon.”

61. 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 filed his written statement of defence dealing

with all allegations on the ten points framed for determination that were enquired

into by the Committee and also cross-examined all the witnesses on the same.

62. 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.

63. A similar view has been recently taken in Aureliano Fernandes (supra)

wherein this Court rejected the delinquent’s contention of prejudice, on the ground

that all materials proposed to be used against him were duly furnished and that he

Page 78 of 104
had submitted his reply to the same as-well. The relevant observations are

reproduced below: -

“64.… but it is not in dispute that all the complaints received
from time to time and the depositions of the complainants were
disclosed to the appellant. He was, therefore, well aware of the
nature of allegations levelled against him. Not only was the
material proposed to be used against him during the inquiry
furnished to him, he was also called upon to explain the said
material by submitting his reply and furnishing a list of
witnesses, which he did. Furthermore, on perusing the Report
submitted by the Committee, it transpires that depositions of
some of the complainants were recorded audio-visually by the
Committee, wherever consent was given and the appellant was
duly afforded an opportunity to cross-examine the said witnesses
including the complainants. The 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 Others v. B. Karunakar and Others 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
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removed from service and the inquiry is set aside because the
report is not furnished to him, in some cases the non-furnishing of
the report may have prejudiced him gravely while in other cases it
may have made no difference to the ultimate punishment awarded
to him. Hence to direct reinstatement of the employee with back-
wages in all cases is to reduce the rules of justice to a mechanical
ritual. The theory of reasonable opportunity and the principles of
natural justice have been evolved to uphold the rule of law and to
assist the individual to vindicate his just rights. They are not
incantations to be invoked nor rites to be performed on all and
sundry occasions. Whether in fact, prejudice has been caused to
the employee or not on account of the denial to him of the report,
has to be considered on the facts and circumstances of each case.
Where, therefore, even after the furnishing of the report, no
different consequence would have followed, it would be a
perversion of justice to permit the employee to resume duty and to
get all the consequential benefits. It amounts to rewarding the
dishonest and the guilty and thus to stretching the concept of
justice to illogical and exasperating limits. It amounts to an
"unnatural expansion of natural justice" which in itself is
antithetical to justice.

31. Hence, in all cases where the enquiry officer's report is not
furnished to the delinquent employee in the disciplinary
proceedings, the Courts and Tribunals should cause the copy of
the report to be furnished to the aggrieved employee if he has not
already secured it before coming to the Court/Tribunal and give
the employee an opportunity to show how his or her case was
prejudiced because of the non-supply of the report. If after hearing
the parties, the Court/Tribunal comes to the conclusion that the
non-supply of the report would have made no difference to the
ultimate findings and the punishment given, the Court/Tribunal
should not interfere with the order of punishment. The
Court/Tribunal should not mechanically set aside the order of
punishment on the ground that the report was not furnished as is
regrettably being done at present. …”
(Emphasis supplied)

65. Applying the aforesaid dictum as laid by this Court no prejudice could be

said to have been caused to the respondent even if we believe that he was not asked

to plead guilty to the second complaint. Had the respondent been asked if he

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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 the Central Complaints Committee in the

course of the inquiry had put questions to the prosecution witnesses, and even the

examination-in-chief was recorded by it, and as such it played the role of a

prosecutor which it could not have, thereby vitiating the inquiry proceedings.

68. Ordinarily, in a disciplinary proceeding conducted under Rule 14 of the 1965

CCS Rules, the disciplinary authority as per Rule 14 sub-rule 2 read with sub-rule

5(c) may either conduct the inquiry itself or appoint an inquiry committee to

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conduct the inquiry. The inquiry committee may further appoint a presenting

officer to present the case on its behalf in support of the articles of charge. It is

worthwhile to note that it is the Inquiry Authority and the Disciplinary Authority

who are the fact finding authorities in a disciplinary proceeding. Rule 14 is

reproduced below:

“14. Procedure for imposing major penalties.
(2) Whenever the disciplinary authority is of the opinion that
there are grounds for inquiring into the 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.

xxx xxx xxx
(5)(c) Where the disciplinary authority itself inquires into any
article of charge or appoints an inquiring authority for holding
an inquiry into such charge, it may, by an order, appoint a
Government servant or a legal practitioner, to be known as the
"Presenting Officer" to present on its behalf the case in support
of the articles of charge.”

69. A perusal of the aforesaid makes it clear that, where a ‘Presenting Officer’

has been appointed by the Disciplinary Authority, such Officer shall present the

case in support of the articles of charge. Conversely, what logically transpires from

the aforesaid is that, where no presenting officer has been appointed, the duty or

role to present the case in support of the articles of charge falls back on the

Disciplinary Authority or the Inquiry Authority as the case may be.

70. This Court in Medha Kotwal Lele and Others v. Union of India and Others

reported in (2013) 1 SCC 311, held that the complaints committee under the

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Vishaka Guidelines shall be deemed to be the Inquiry Authority. The relevant

portion is reproduced below: -

“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 Others 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 below: -

“32. The mere sight of the accused may induce an element of
extreme fear in the mind of the victim or the witnesses or can put
them in a state of shock. In such a situation he or she may not be
able to give full details of the incident which may result in
miscarriage of justice. Therefore, a screen or some such
arrangement can be made where the victim or witnesses do not
have to undergo the trauma of seeing the body or the face of the
accused. Often the questions put in cross-examination are
purposely designed to embarrass or confuse the victims of rape
and child abuse. The object is that out of the feeling of shame or
embarrassment, the victim may not speak out or give details of

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certain acts committed by the accused. It will, therefore, be better
if the questions to be put by the accused in cross-examination are
given in writing to the presiding officer of the court, who may put
the same to the victim or witnesses in a language which is not
embarrassing. There can hardly be any objection to the other
suggestion given by the petitioner that whenever a child or victim
of rape is required to give testimony, sufficient breaks should be
given as and when required. The provisions of sub-section (2) of
Section 327 CrPC should also apply in inquiry or trial of offences
under
Sections 354 and 377 IPC.

xxx xxx xxx

“34. The writ petition is accordingly disposed of with the
following directions:

(1) The provisions of sub-section (2) of Section 327 CrPC
shall, in addition to the offences mentioned in the sub-section,
also apply in inquiry or trial of offences under
Sections 354
and
377 IPC.

(2) In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where
the victim or witnesses (who may be equally vulnerable like
the victim) do not see the body or face of the accused;

(ii) the questions put in cross-examination on behalf of the
accused, insofar as they relate directly to the incident,
should be given in writing to the presiding officer of the
court who may put them to the victim or witnesses in a
language which is clear and is not embarrassing;

(iii) the victim of child abuse or rape, while giving testimony
in court, should be allowed sufficient breaks as and when
required.”
(Emphasis supplied)

72. The power and discretion of the complaints 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
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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 vs. UOI Others, 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 Committee.”

73. 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.

74. 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.

Page 85 of 104

75. 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.

76. Even otherwise, the aforesaid issue has been answered by this Court in

Pravin Kumar v. Union of India and Others reported in (2020) 9 SCC 471. The

very same argument was canvassed before a three-Judge Bench that the Inquiry

Officer could not have put his own questions to the prosecution witnesses and could

also have not cross-examined the witnesses. In the said case, it was argued that the

same would amount to making the prosecutor the judge. This argument was

negatived by the Court observing in para 31 as under:

“31. Significant emphasis has been placed by the appellant on
the fact that the enquiry officer put his own questions to the
prosecution witness and that he cross-examined the witnesses
brought forth by the defence. This, it is claimed, amounts to
making the prosecutor the Judge, in violation of the natural
justice principle of “nemo judex in sua causa”. However, such a
plea is misplaced. It must be recognised that, under
Section 165,
Evidence Act, Judges have the power to ask any question to any
witness or party about any fact, in order to discover or to obtain
proper proof of relevant facts. While strict rules of evidence are
inapplicable to disciplinary proceedings, enquiry officers often
put questions to witnesses in such proceedings in order to
discover the truth. Indeed, it may be necessary to do such direct
questioning in certain circumstances. Further, the learned
counsel for the appellant, except for making a bald allegation
that the enquiry 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)
Page 86 of 104

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 Central Complaints Committee put questions to the

prosecution witnesses.

E.4 Whether the Central Complaints Committee based its findings on
conjectures and surmises? Whether the case on hand is one of
“no evidence”?

i) Principle of “No Evidence” in Service Jurisprudence

79. It is well settled that the findings of fact recorded in the course of any

domestic inquiry, unless they are collateral or jurisdictional, are exempt from

judicial review and that the court exercising writ jurisdiction should not sit in

appeal over the ultimate decision based on such findings and review it on merits.

However, there are two well-known exceptions to the said rule. First, the case must

not be one where there is “no evidence” to support the findings. Secondly, the

ultimate decision based on such findings must not be perverse or unreasonable.

Page 87 of 104

These two concepts have affinity with each other; indeed, the “no evidence”

principle clearly has something in common with the principle that perverse or

unreasonable action is unauthorised and ultra vires. As pointed out by Lord

Radcliffe in Edward (Inspector of Taxes, Bairstow. (1956) Appeal Cases, 14 at

page 36 “I do not think that it much matters whether this state of affairs is described

as one in which there is no evidence to support the determination or as one in

which the evidence is inconsistent with and contradictory of the determination, or

as one in which the true and only reasonable conclusion contradicts the

determination.” Rightly understood, each phrase propounds the same test, in each

of these cases, according to Lord Radcliffe, there would be an error in point of law

requiring the court's intervention.

80. We must explain the true meaning of the ‘no evidence’ principle. The rule

has been adopted in India from England and we may, therefore, ascertain, in the

first instance, how the rule over there is understood. Prof. H.W.R. Wade in his

treatise on Administrative Law, Fourth Edition, has observed as follows:

“It is one thing to weigh conflicting evidence which might justify
a conclusion either way. It is another thing altogether to make
insupportable findings. This is an abuse of power and may
cause grave injustice. At this point, therefore, the court is
disposed to intervene.

‘No evidence’ does not mean only a total dearth of evidence. It
extends to 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)
Page 88 of 104

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 disallowances and surcharges, under the Public Health

Act, 1875, was erroneous, could review the same only when such decision was

erroneous in point of law and not when the auditor had come to an erroneous

conclusion in fact. Fletcher Moulton L.J. observed in that case as follows:

“It is admitted by the appellant that if there was no evidence on
which any tribunal could reasonably come to the conclusion to
which the auditor has come the superior Courts have a
jurisdiction to quash the surcharge, and in my opinion this is the
case here."

83. In the Deputy Industrial Injuries Commissioner (supra), two learned law

Lords have made certain observations on the true content of the “no evidence” rule

Page 89 of 104
by treating the said rule as a principle of natural justice. Willmar L.J. observed as

under:

“Where so much is left to the discretion of the Commissioner,
the only real limitation, as I see it, is that the procedure must be
in accordance with natural justice. This involves that any
information on which the Commissioner acts, whatever its
source, must be at least of some probative value.”

84. Diplock L.J. made the following pertinent observations reproduced below:

“Where, as in the present case, a personal bias or mala
fides on the part of the deputy commissioner is not in
question, the rules of natural justice which he must observe
can, in my view, be reduced to two. First, he must base
decision on evidence, whether a hearing is requested or not.
Secondly, if a hearing is requested, he must fairly listen to the
contentions of all persons who are entitled to be represented
at the hearing.

“In the context of the first rule, “evidence” is not restricted
to evidence which would be admissible in a court of law….

“… The requirement that a person exercising quasi-judicial
functions must base his decision on evidence means no more
than it must be based upon material which tends logically to
show the existence or none-existence of facts relevant to the
issue to be determined, or to show the likelihood or
unlikelihood of the occurrence of some future event the
occurrence of which would be relevant. It means that he must
not spin a coin or consult an astrologer, but he may take into
account any material which, as a matter of reason, has some
probative value in the sense mentioned above. If it is capable
of having any probative value, the weight to be attached 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.””

Page 90 of 104

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 produced by any

witness, its provenance was unexplained and it could not be tested by cross-

examination. The learned Judge made the following observations while

considering the submission:

“It hardly needs to be said that legal rules of evidence are not
applied at local inquiries, and both oral and documentary
evidence is freely admitted in circumstances where even the more
relaxed rules of evidence at the present time would not allow of its
admission in a court of law. Nonetheless some limit must surely be
imposed in fairness to an appellant on the scope of so-called
evidence which by no stretch of the imagination can be said to have
the slightest evidential value. This must, I should have thought,
particularly be so when if such ‘evidence’ is considered, it is used
to support a conclusion unfavourable to the appellant. I think the
Inspector was light to ignore this document and the Secretary of
State was wrong in the particular circumstances to attach any
weight to it or its contents.”

Page 91 of 104

86. The aforesaid decisions would indicate that the English Courts have not

construed the words “no evidence” narrowly. The rule of “no evidence” is there

attracted not only in cases where there is complete lack of evidence, that is to say,

where there is not a shred of evidence, but also in cases where the evidence, if any,

is not capable of having any probative value, or on the basis of which no Tribunal

could reasonably and logically come to the conclusion about the existence or non-

existence of facts relevant to the determination. According to the English decisions,

although a domestic tribunal may act on evidence not admissible according to the

legal rules in a court of law, yet unless such evidence has some probative value in

the sense mentioned above, it would be a breach of natural justice and/or an error

of law to base any adverse decision thereon.

87. In State of Andhra Pradesh and Others v. S. Sree Rama Rao reported in

AIR 1963 SC 1723, it was held at page 1726 that in considering whether a public

officer is guilty of the misconduct charged against him the rule followed in criminal

trials with regard to the establishment of charge by evidence beyond reasonable

doubt was not applicable. In a proceeding under Art. 226, the High Court, not being

a court of appeal over the decision of the domestic tribunal, was concerned to

determine whether 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: -

Page 92 of 104

“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 Others 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 Art. 226, fell for

consideration in the context of the disciplinary proceedings against Government

servants. It was observed that “the High Court under Art. 226 has jurisdiction to

enquire whether the conclusion of the Government on which the impugned order

of dismissal rests is not supported by any evidence at all” and that there was little

doubt that a writ of Certiorari can be claimed by a public servant if he is able to

satisfy the High Court that the ultimate conclusion of the Government in the said

proceeding is based on no evidence. A conclusion on a question of fact, it was held,

would be assailable if it is manifest that there is no evidence to support it even

assuming bona fides of the disciplinary authority. The following observations

made at page 369 are material from the point of view of the aspect under

consideration:

Page 93 of 104

“… In exercising its jurisdiction under Art. 226 on such a plea, the
High Court cannot consider the question about the sufficiency or
adequacy of evidence in support of a particular conclusion. That
is a matter which is within the competence of the authority which
deals with the question; but the High Court can and must enquire
whether there is any evidence at all in support of the impugned
conclusion. In other words, if the whole of the evidence led in the
enquiry is accepted as true, does the conclusion follow that the
charge in question is proved against the respondent? This
approach will avoid weighing the evidence. It will take the
evidence as it stands and only examine whether on that evidence
illegally the impugned conclusion follows or not. …”
(Emphasis supplied)

90. In R. Mahalingam v. Chairman, Tamil Nadu Public Service Commission

and Another reported in (2013) 14 SCC 379, this Court laid down the scope of

judicial review as regards the findings of the disciplinary proceedings with the

following relevant observations being reproduced below: -

“11. ... The scope of judicial review in matters involving challenge
to the disciplinary action taken by the employers is very limited.
The courts are primarily concerned with the question whether the
enquiry has been held by the competent authority in accordance
with the prescribed procedure and whether the rules of natural
justice have been followed. The court can also consider whether
there was some tangible evidence for proving the charge against
the delinquent and such evidence 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)

Page 94 of 104

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 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.”
(Emphasis supplied)

ii) Standard of Proof in Disciplinary Proceedings

92. In another decision of this Court in West Bokaro Colliery (TISCO Ltd.) v.

Ram Pravesh Singh reported in (2008) 3 SCC 729, it was held that in a

departmental inquiry, the standard of proof is based on preponderance of

probability and not beyond reasonable doubt. The relevant observation made in it

are given below: -

“20. The Tribunal has set aside the report of the enquiry officer
and the order of dismissal passed by the punishing authority by
observing that the charges against the respondent were not
proved beyond reasonable doubt. It has repeatedly been held by
this Court that the acquittal in a criminal case would not operate
as a bar for drawing up of a disciplinary proceeding against a
delinquent. It is well-settled principle of law that yardstick and
standard of proof in a criminal case is different from the one in
disciplinary proceedings. While the standard of proof in a

Page 95 of 104
criminal case is proof beyond all reasonable doubt, the standard
of proof in a departmental proceeding is preponderance of
probabilities.”
(Emphasis supplied)

93. Similarly in Apparel Export (supra) this Court had held that inquiries in

respect of sexual harassment must be examined on broader probabilities keeping

in mind the entire background of the case. Thus, in a disciplinary inquiry, the

standard of proof is preponderance of probabilities and the courts must only

interfere where the findings are either perverse or based on no evidence at all.

94. Bearing the aforesaid principles of law in mind, we must look into some

relevant portion of the evidence taken into consideration by the Central Complaints

Committee for arriving at the conclusion that the charges are held to be proved: -

a. Shri Mast Ram Thakur, SFA(H) (PW3) stated that the respondent used to

quite often call the complainant in his chamber and made her sit for hours

without any office work. He further stated that quite often on such occasions,

the respondent would draw the curtains of his chamber. He also stated that

the complainant 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
Page 96 of 104
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

drink water.

d. Shri Rabi Ram Biswas, sweeper (PW12) stated that he had seen the

respondent touching the shoulder of the complaint while teaching her to

operate a laptop. Smt Pema Narzary, AFO(WI) (PW9) stated that the

complainant had once told her how the respondent used to call her to his

chamber on the pretext of teaching her to operate the laptop. Shri Rynjan

Singh, peon (PW8) stated that on one occasion, the respondent shut the door

of his Chamber while teaching the complainant and when all of a sudden he

entered the respondent’s chamber the respondent got startled and moved

away from the complainant and instructed him to knock before entering.

e. Shri Rabi Ram Biswas, peon (PW12) stated that whenever, the complainant

would leave the office, the respondent would also leave soon thereafter in a

Page 97 of 104
hurry. The other staff presumed that this hurry was due to the respondent’s

desire to drive the complainant home. Shri Rynjan Singh, peon (PW8) stated

that he had seen the respondent offering a lift to the complainant and that it

was only the complainant to whom the respondent used to offer. Smt. Pema

Narzary, AFO(WI) (PW9) stated to have heard from other office staff that

the respondent would offer lifts to the complainant in his official vehicle.

f. Shri B.B. Sonar, chowkidar (PW4) stated that once while the complainant

was standing in the ladies’ queue for booking tickets at the railway station,

the respondent approached her from behind and placed his hand on her

shoulder. This made the complainant very uncomfortable and on shrugging

off her shoulder the respondent withdrew his hand. He further stated that he

saw the complainant looking upset and uncomfortable.

To the aforesaid allegations, the respondent offered his explanation

saying that he had done so as it was his “bounden duty to protect the dignity

of the complainant” from the “boisterous crowd” and also to make people

know standing at the railway station that the complainant was not alone.

g. Shri Mast Ram Thakur, SFA(H) stated that he overheard the respondent

making sexually coloured remarks to the complainant at the railway station

saying; “aap to jaa rehen hain, meri jaan jaa rahi hai. Aap chinta mat karo

main tumhara dimag taza karne ke iye bhej rahaa huu, vahaan se aane ke

baad tum shrimati paul banogi”.

Page 98 of 104

h. Shri B.B. Sonar, chowkidar (PW4), Shri 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 her

beyond working hours. He further stated that, he had then telephonically

reprimanded the respondent after which the respondent assigned her no

work. Shri Mast Ram Thakur, SFA(H) (PW3) and Shri Ranjit Patoi, Assitant

(PW7) also corroborated the aforesaid and stated that the respondent

Page 99 of 104
withdrew all work from the complainant after she made a complaint against

him.

95. 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.

96. 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.

97. The aforesaid in our opinion is not correct. The allegation in Point 7(a) was

rightly accepted by the Central Complaints Committee keeping in mind the

background of the case. The Central Complaints Committed duly noted that the

non-availability of the call records was owed to the fact that the inquiry into the

Page 100 of 104
complainant’s grievances was undertaken after a lapse of significant time.

Moreover, the said finding is fortified by the oral evidence of one of the witnesses

who deposed that he was aware of the respondent making calls to the complainant.

The relevant portion is reproduced below: -

“POINT 7
“x. … Shri Samir Nandi has also stated that he knew that Shri
Dilip Paul was calling Smt. X on her mobile.

xxx xxx xxx
B. The Complaints Committee made every effort to substantiate
the charge 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 judgement, 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.

Page 101 of 104

100. In such circumstances referred to above, according to the learned counsel,

the Central Complaints Committee could not have been constituted to probe further

into the allegations. In this regard, reliance was placed on the decision of this Court

in the case of Vijay Shankar Pandey v. Union of India reported in (2014) 10 SCC

589.

101. In the aforesaid context, we may only say that the aforesaid point was raised

even before the High Court and the same came to be negatived holding as under:

“22. The report dated 13.12.2011 was submitted pursuant to
conducting of an on-the-spot enquiry. On-the-spot enquiry, by
the very nature of it, is summary in nature. Such enquiry cannot
be equated with a disciplinary enquiry. It will be relevant to note
that before the report of the on-the-spot enquiry was submitted,
the competent authority had constituted FLCC, which had also
commenced its proceedings. In that context, even if in such an
on-the-spot enquiry, no allegation was found to have been
established, same would not have any material bearing in the
facts of the instant case. It is not in dispute that the petitioner was
posted at the frontier and, accordingly, in terms of the Standing
Order No. 1/06, FLCC was constituted to enquire into the
allegation of sexual harassment. As noticed earlier, though the
FLCC had submitted report on 17.01.2012, the same was
cancelled by Memorandum dated 10.12.2012 on the ground that
the Chairperson of the FLCC was not an officer who was senior
to the petitioner against whom the complaint was made.

23. We are unable to subscribe to the submission of the learned
counsel for the petitioner that report of FLCC could not have
been cancelled and the report was required to be acted upon as
the Chairperson of the FLCC being from a different stream, the
question of comparison of seniority did not arise. It is not the
contention of the petitioner that the Chairperson was, indeed,
higher in rank than the petitioner. Therefore, the significance of
appropriate constitution of the Complaints Committee, in terms
of the norms laid down, cannot be lost sight of. True, the
authorities themselves had constituted the Complaints
Committee, but the fact by itself cannot detract the competent
authority from cancelling the proceeding or the report of an

Page 102 of 104
improperly constituted committee. It was in this background the
CCC had come into the picture. Though earlier the FLCC had
conducted enquiry, we find that the CCC 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. It was also observed that disciplinary
authority in terms of the rules had enough power to reconsider
the evidence and come to its own conclusion. In Vijay Shankar
Pandey (supra), the Supreme Court followed K.R. Deb (supra)
and reiterated the principle laid down therein. The said decisions
are also not applicable to the facts of the present case. We also
find no merit in the contention urged on behalf of the petitioner
that complaint dated 30.08.2011 having not been submitted to the
Complaints Committee, the same could not have been acted
upon. Materials on record do not indicate that at the time of
submission of the complaint dated 30.08.2011, there was any
specific Complaints Committee in place and on the contrary, it
appears that only after the complaint was received by the
authority, FLCC was constituted to go into the complaint. Even
otherwise, the Standing Order No.1/2006 itself visualizes
submission of complaint directly to the Frontier IG/IF under
certain circumstances.”
(Emphasis supplied)

102. We are in complete agreement with the aforesaid findings recorded by the

High Court on the issue of multiple inquiries.

Page 103 of 104

F. CONCLUSION

103. For all the forgoing reasons, we have reached to the conclusion that the

appeal deserves to be allowed. The High Court committed an egregious error in

passing the impugned judgment and order.

104. 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.

105. 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.

106. Pending application(s) if any shall stand disposed of.

…...……..….………….……………CJI.

(Dr. Dhananjaya Y. Chandrachud)

…….…..….…….…..…………………J.

(J.B. Pardiwala)

…………...…...……………………….J.

(Manoj Misra)

New Delhi;

November 6, 2023.

Page 104 of 104

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