TMI Blog2023 (11) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... cise its powers of judicial review in matters of disciplinary proceedings particularly one pertaining to sexual harassment, this Court in APPAREL EXPORT PROMOTION COUNCIL VERSUS A.K. CHOPRA [ 1999 (1) TMI 522 - SUPREME COURT] observed that the courts should not get swayed by insignificant discrepancies or hyper-technicalities. The allegations must be appreciated in the background of the entire case, and the courts must be very cautious before any sympathy or leniency is shown towards the delinquent. It further held that the courts are obliged to rely on any evidence of the complainant that inspires confidence. Whether the Central Complaints Committee committed any egregious error in putting questions to the witnesses in the course of the departmental enquiry and thereby vitiating the disciplinary proceedings? - HELD THAT:- The obligation on the part of the Authority to ask the delinquent whether he pleaded guilty or had any defence to make is only in the circumstances, if the delinquent had not admitted any of the articles of charge in his written statement of defence or had not submitted any written statement of defence. Indisputably, in the case on hand, the Respondent had filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant. What is most important to note at this stage is that the High Court has not gone into the sufficiency of evidence as it was aware that the law does not permit it to go into the issue of sufficiency of evidence for the purpose of holding a public servant guilty of the alleged misconduct. It is in such circumstances that in the entire judgment the High Court has concentrated only on technical pleas raised by the Respondent. It is only on the issue of point 7(a) that the High Court seems to have taken the view that the findings in that regard are based on conjecture and surmises. The High Court took the view that in respect of the allegations contained in Point 7(a) which relates to the Respondent making unsolicited phone calls to the complainant, although no evidence of the call recordings had been produced to substantiate the same, yet the Central Complaints Committee accepted the allegations as true, and therefore its findings could be said to be based on conjectures and surmises. The High Court committed an egregious error in passing the impugned judgment and order - Appeal allowed. - HON'BLE JUDGES DR. D.Y. CHANDRACHUD, C.J.I., J.B. PARDIWALA AND MANOJ JJ. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty. However, at the same time, it should be kept in mind that the charge of this nature is very easy to make and is very difficult to rebut. When a plea is taken of false implication for extraneous reasons, the courts have a duty to make deeper scrutiny of the evidence and decide the acceptability or otherwise of the accusations. Every care should be taken to separate the chaff from the grain. The veracity and genuineness of the complaint should be scrutinised to prevent any misuse of such laudable laws enunciated for the upliftment of the society and for equal rights of people without gender discrimination by anybody under the garb of sexual harassment , lest justice rendering system would become a mockery. In such circumstances, we have decided to look into this matter closely and in details. A. FACTUAL MATRIX 3. The Respondent herein was serving as the Area Organizer i.e., the Local Head of Office of the Service Selection Board (for short, the SSB ), Rangia, State of Assam between September, 2006 to May, 2012. In the very same office, a lady employee was serving as the Field Assistant (Lady) (hereinafter referred to as the complainant ). She lodged a complaint (hereinafter r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many medical leaves. Now, I am not in position to work even for a day under him. It also began affecting my family life. In view of the above, I request your kind honour to look into the matter sympathetically and it is also requested to take necessary action against the Shri D. Paul, AO Rangia to get rid of this problem as soon as possible for which I shall remain ever grateful to you. Yours faithfully, Sd/- 30.8.2011 (Smt. X) FA (Lady) A.O. Office, SSB Rangia A.1 On-Spot/Preliminary Inquiry Report 4. The Dy. IG, SSB, SHQ, Tezpur held a common on-the-spot fact finding inquiry in relation to the first complaint dated 30.08.2011 and recorded the statements of the employees working in the office of the Respondent. The Respondent was given an opportunity to file his reply to the allegations levelled in the complaints. On 13.12.2011, the on-the-spot fact finding inquiry was concluded, and two reports in that regard were submitted to the IG, Frontier HQ, Guwahati. a) On the first complaint 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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mous 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 sometime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made an unwelcome sexual advance to her in full public view. While she was standing in the queue at the ticket booking counter, Shri Dilip Paul came to stand next to her and putt his arm around her shoulder and tried to hug her close to his body. Shri Dilip Paul said to her that he is sending her on the study tour to make her mind fresh so that she may forget her previous life and when she returned, begin a new one as Mrs. Paul. Point 6: That Shri Dilip Paul subjected her to further unwelcome sexually determined conduct by the statements that he made when he came to the railway station to see off the group departing for the study tour. After the luggage had been loaded onto the train, Shri Dilip Paul came into the train compartment and said to Smt. X tum jaa rahe ho to mari jaan jaa rahi hai. Ham ka saath jaanaa hi acchaa hota. Koi baat nahiin, 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 Dili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined, 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, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk 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 PRES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aul, 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 Compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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) cance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judgment and order dated 03.07.2015 passed by the CAT, Guwahati. 23. During the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer 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. I 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to state in his defence. Given the above position, non-framing of the articles of charge cannot be said to be detrimental to the interest of the Appellants herein. f. Therefore, it is submitted few infirmities here and there would not vitiate entire proceedings unless it is shown that some prejudice has been caused to the Respondent as has been held by this Hon'ble Court in State of U.P. v. Sudhir Kumar Singh, (Para 39). In the present case, adequate opportunity was afforded to the Appellant not just by the Committee, but also by the Disciplinary Authority and the Appellate Authority before taking any action against him. 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 na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfy 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flaws. These principles are fit to be extrapolated in the instant case. 6. That, the complaint dated 30.08.2011 contained only 2 (two) allegations, but the Central Complaint Committee extrapolated the allegations to as many as 10 Nos. incorporating therein the newly added exaggerated versions of the complainant and delved into those, thus travelling beyond the allegations in the complaint dated 30.08.2011 and overstepping its jurisdiction in violation of procedure 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 inq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a type of punishment which was not at all recommended by the Central Level Complaint Committee. Surprisingly, the authority on same allegations instituted 4th inquiry and imposed penalty just to victimize the sole Respondent for reasons best known to them. The sole Respondent was the unfortunate victim of interdepartmental rivalry and he was traumatized due to unproved allegations and his innocence was upheld time to time by the first three inquiries and same was discussed in detail by the Hon'ble High Court at para 40, 43, 46 and 47 of the impugned judgment while rightly setting aside the impugned order of penalty. (Page No. -54, 70-74, 75-76 of the SLP) 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the aim of focusing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of gender equality ; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation. 2. The immediate cause for the filing of this writ 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. v. Union of India and Ors. reported in (2013) 1 SCC 297, decided on 19.10.2012, wherein this Court anguished by the failure of the Union State Governments in complying with the Vishaka guidelines, more particularly, the constitution of the complaints commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laints 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 Counci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of working women. (1) No Government servant shall indulge in any act of sexual harassment of any woman at any work place. (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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 recogniz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ually 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. 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 judgment of Hon'ble Supreme Court or the guidelines of National Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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-Sak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 965 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. 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 Ors. reported in 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 pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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) 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 Appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. v. Mudrika Singh reported in 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogically 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or process resulted in a prejudice being caused or a loss of fair hearing. The relevant observations are reproduced below: 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 Code of Civil Procedure and Section 465 Code of Criminal Procedure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry officer's report (Managing Director, ECIL v. B. Karunakar [ (1993) 4 SCC 727: 1993 SCC (L S) 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 (L S) 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 (L S) 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) herein below 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 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) 58. In the case of State of U.P. v. Harendra Arora and Anr. 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 auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure should also apply in inquiry or trial of offences Under Sections 354 and 377 Indian Penal Code. 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 Code of Criminal Procedure shall, in addition to the offences mentioned in the Sub-section, also apply in inquiry or trial of offences Under Sections 354 and 377 Indian Penal Code. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaints 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 Ors. 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 witnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltimate decision based on such findings must not be perverse or unreasonable. 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 Editi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal 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 even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretary of State was wrong in the particular circumstances to attach any weight to it or its contents. 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 Ors. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Anr. 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 compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jaa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner 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 improperly constituted co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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