S.C.Singh vs Union Of India & Anr.
2011 Latest Caselaw 5415 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                WP(C) No.7838/2011 & CM No.17733/2011

%                       Date of Decision: 09.11.2011

S.C.Singh                                                .... Petitioner

                     Through Mr.K.K.Rai, Sr.Advocate with Mr.S.K.
                             Pandey & Mr.Awnish Kumar, Advocates

                                Versus

Union of India & Anr.                                  .... Respondents


                     Through Mr.Sumeet Pushkarna, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.      Whether reporters of Local papers may           YES
        be allowed to see the judgment?
2.      To be referred to the reporter or not?          YES
3.      Whether the judgment should be                  NO
        reported in the Digest?

ANIL KUMAR, J.

* CM No.17733/2011

Allowed subject to just exceptions.

WP(C) No.7838/2011

1. The petitioner, an Inspector in the Central Industrial Security

Forces (CISF), has challenged the report dated 31st December, 2009 of

the Complaint Committee holding him responsible for passing lewd

remarks against the lady Sub Inspector, Ranu Rana, and order dated

17th September, 2010 passed by the DIG, WZ, CISF, Navi Mumbai

(Disciplinary Authority) imposing the penalty of compulsory retirement

from service with full pensionary and gratuity benefits and also the

dismissal of his appeal by the Appellate Authority by order dated 25th

October, 2010 along with the order of the Revisional Authority, the

Director General, CISF dated 10th June, 2011 partly allowing the

revision petition and reinstating the petitioner with reduction of pay to

the lowest stage from the date of his compulsory retirement in the time

scale of pay/pay band for a period of three years and further directing

that during the period of three years, the petitioner will not earn

increment of pay and on expiry of the period, the reduction will have the

same effect of postponing his future increments of pay and adversely

affecting his pension.

2. The petitioner has impugned the orders on the ground that the

findings of the Complaint Committee is based on no evidence and that

the penalty imposed is contrary to Rule 34 (iv) of CISF Rules, 2001 and

that the order of the punishment has made him subordinate to his

juniors resulting in the petitioner facing constant humiliation, though

the petitioner has an impeccable service record. It is contended that the

entire proceedings against him is based on hear say and

uncorroborated evidence.

3. Brief relevant facts to comprehend the controversies are that the

petitioner was an Inspector, CISF Unit, Bhopal and was posted at

Bangalore Airport at the time of the alleged incident of sexual

harassment. On 25th May, 2007, at about 10:30 AM, it is alleged that

the complainant Ranu Rana, a Sub Inspector, heard the petitioner

passing vey lewd remarks about her "YEH RANU APNE HUSBAND KE

PASS JA RAHI HAI, AB WAHAN SE PREGNANT HO KAR AAYEGI LEKIN

KYA PATA WHO USKE HUSBAND SE HOGA YA KISI AUR SE"

(TRANSLATION „THIS RANU IS GOING TO HER HUSBAND AND

WILL COME BACK PREGNANT BUT HOW DO WE KNOW THAT SHE

WOULD BE CONCEIVING HER HUSBAND‟S BABY AND NOT ANYBODY

ELSE‟S (ENGLISH).")

4. According to the petitioner, the complainant on 25th May, 2007

did not respond or make any complaint against the alleged lewd

remarks made against her. It was only on 11th June, 2007 that she

made the complaint to the State Commission for Women, Karnataka.

The complainant, Sub Inspector Ranu Rana, on 23rd July, 2007 made

another complaint regarding the alleged incident of sexual harassment

to the Director General, CISF, New Delhi.

5. The petitioner made a representation dated 9th August, 2007

contending that though he did not get the charge sheet, list of

documents and the list of witnesses but pleaded that the complaint

against him was misplaced and motivated by ulterior motive. In his

representation, the petitioner asserted that in his 30 years of service

there had not been any complaint against him and that he had served

with honesty and discipline and that he could not have passed such

remarks to his junior officer, the complainant or to anyone else. The

petitioner also asserted that the complainant is being used and

misguided by her colleagues who are annoyed by him and want to settle

scores through the complainant. The petitioner categorically

represented that as the feeling of the complainant is hurt due to

misunderstanding and misguidance by her colleagues, he too is

distressed and as such he expressed his regret and sorry for such sort

of affair. The petitioner, referring to the complaint, also contended that

though she claimed that three Sub Inspectors were present and heard

the remarks which the petitioner had allegedly passed, however, on the

other hand she claims that these officers were afraid to be witness to

the alleged incident, which shows the ill feeling of the complainant

against him because of the petitioner‟s discipline and hard work.

6. The complainant replied to the representation dated 9th August,

2007 made by the petitioner by her reply dated 21st August, 2007 in

which she reiterated that lewd remarks were passed by the petitioner

against her. She contended that the petitioner is trying to divert the

case by imputing that she has ill feelings against him though he has not

given any reason or fact for the complainant having any ill feeling

against the petitioner. Regarding the allegation that the complainant is

acting on behalf of some of the colleagues, who have misguided her, the

complainant contended that the petitioner has tried to dilute the case.

However, the fact is that she has not been misguided, nor can any other

colleague be blamed. She asserted that the decision to lodge the

complaint against the petitioner was taken by her after consulting her

family members. She asserted that there was no misunderstanding and

the petitioner had made the lewd remarks which were clearly heard by

her causing grave damage to her modesty and self respect. In reply to

the petitioner‟s representation, the complainant also requested for

recording the statement of Sh.Siddharth Srivastava, Sub Inspector, as

the petitioner is pressurizing him and all other witnesses through their

respective families so that the witnesses to the incident do not come

forward to tell the truth. She requested that the decision may be taken

immediately.

7. The complainant, thereafter, sent another communication dated

8th April, 2008 contending that after making the complaint against the

petitioner, she has been facing a lot of trouble in the department for

which she had lodged another complaint before the Karnataka State

Commission for Women on 7th September, 2007. She requested for an

early decision on her complaint as the reasonable time has already

elapsed. She also requested to supply the copy of the statement of the

petitioner and other witnesses. She also prayed for action against

Sh.D.K.Chakravarty, Assistant Commandant, Sh.R.B.Singh, Assistant

Commandant and Sh.Digvijay Singh, Commandant along with the

petitioner. She also stated in her communication dated 8th April, 2008

that Sh.R.B.Singh, Assistant Commandant had advised her on 14th

July, 2007 not to take the matter against the petitioner to the

Karnataka State Commission for Women directly and that on 19th July,

2007, Sh.R.B.Singh had conveyed that the Senior Commandant had

directed the Assistant Commandant, Sh.R.B.Singh, to communicate to

her to compromise the matter and threatened the complainant of dire

consequences. The complainant in the said communication also

disclosed that on 25th August, 2007 Sh.Siddharth Srivastava had

appeared before the Commission supporting her allegation. She also

highlighted the action of Sh.Digvijay Singh, Commandant regarding

issuance of a Memorandum dated 23rd February, 2008 as she had not

been ready to compromise the matter with the petitioner.

8. Pursuant to the complaint made by the complainant and taking

cognizance of her allegation, a Complaint Committee was constituted

before whom the complainant made a statement on 2nd December,

2008. In her statement, she reiterated the lewd remarks passed against

her and stated that she did not understand what to do because the

petitioner was her senior and she had never expected such lewd

remarks from him and since the incident had taken place before she

had to board the flight immediately, she couldn‟t make the complaint at

the time. The complainant deposed that she returned on 3rd June, 2007

and told about the incident to her colleagues Sh.S.N.Kumar, Sub

Inspector; Sh.S.K.Singh, Sup Inspector and Sh.Siddharth Srivastava,

Sub Inspector who accepted that the petitioner had passed lewd

remarks and that they are very sorry to know that such an incident

had taken place with the petitioner. However, they tried to make the

complainant understand that such incidents often take place with

working women and they have to bear such things. The complainant

further deposed that when she asked them to bring the truth in front of

everyone, they said that if they will help her, the department will

become hostile to them and since they are married, they may also have

to bear the wrath of being transferred to different places. The

complainant also deposed that by 27th July, 2007 her company was

changed and by that time Sh.S.C.Singh, the petitioner, was the only

Company Commander and because of it her shift and shift of her

husband were changed which became different. This had led to the

complainant and her husband coming in different shifts though at

Bangalore Airport other husbands and wife used to come in the same

shift. According to complainant this had happened on the instructions

of Inspector S.C.Singh, the petitioner.

9. The sexual harassment committee constituted by the Director

General, CISF, by order dated 5th May, 2008 headed by Smt.Santhi

G.Jaidev, Senior Commandant, CISF and three other members recorded

the statements of the complainant, SI S.N.Kumar, SI S.P.Srivastava, SI

Sudhir Kumar Singh and the petitioner, SC Singh. The sexual

harassment enquiry committee considered the statements recorded in

detail, documents and analyzed the evidence and also observed and

recorded the demeanor of the witnesses, specially Sh.S.N.Kumar who

was very aggressive throughout the cross-examination. It was also noted

that some witnesses clearly exhibited attitude that showed gender bias

towards women. It was concluded that the allegation of the petitioner

passing lewd comments against the complainant on 25th May, 2007 is

made out. The committee also noted the behaviour of the witness

Sh.S.P.Srivastava who was of the opinion that if an woman is insulted in

public, in order to protect her dignity and respect, it is better for her to

keep quiet about it and accept it, as otherwise it would also tarnish her

image, and it may also spoil the reputation of the Force and that she

may be subjected to harassment.

10. The copy of the enquiry report was given to the petitioner and

after considering the representation made by him, and on observing that

the petitioner had participated in the enquiry conducted by the

committee as per the laid down procedure, that the statements of the

witnesses were recorded in his presence who were cross-examined by

the petitioner as well, that the relevant documents were exhibited during

the enquiry proceedings which were duly seen and signed by the

petitioner and were taken on record, and also that the petitioner was

provided ample opportunity to produce his defence witnesses though he

did not produce any, but instead submitted his written statement of

defence on completion of the examination of the witnesses. On 17th

September, 2010 the Disciplinary Authority noted that the allegations

made by the complainant were substantiated by the deposition of SI

S.P.Srivastava who had also deposed against the petitioner, though he

did not have any personal animosity against him. Therefore, it was held

that the allegation of passing lewd comments by the petitioner against

the complainant was made out. The Disciplinary Authority, therefore,

held the petitioner guilty of the allegation leveled against him.

Considering the entire service record of the petitioner who had rendered

32 years of regular service and who had remained disciplined

throughout his service except for one minor penalty of censure which

was awarded to him on 6th January, 1979 immediately after he had

joined the unit on completion of his basic training, the Disciplinary

Authority took a lenient view and awarded a penalty of "compulsory

retirement from service" from the date of receipt of the order dated 17th

September, 2010.

11. Against the order of the Disciplinary Authority dated 17th

September, 2010, the petitioner preferred an appeal to the D.I.G./CISF

emphasizing the many inconsistencies and improbabilities in the

statements of the witnesses recorded before the enquiry committee. The

petitioner emphasized on the statement of Sh.S.N.Kumar who was

alleged to be a witness to the lewd comments passed by the petitioner

against the complainant. The said witness had categorically refuted the

allegations made by the complainant during the enquiry. It was

therefore, contended that the statement of the complainant remained

uncorroborated. The petitioner also contended that on 25th May, 2007,

the complainant was not on duty as she was going for vacation, and

therefore, the incident of the petitioner passing the alleged lewd

comments against her could not have been said to have taken place at

the "work place", and therefore, it could not be brought under the

jurisdiction of the complaint committee. The petitioner also raised the

issue that the complainant should have registered the complaint as

early as possible and in any case within 15 days of the alleged incident,

however, the complainant had made the complaint to Karnataka State

Women Commission only on 12th June, 2007 after the expiry of 18 days

since the day of the incident though she had returned from her vacation

on 3rd June, 2007. In the circumstances, even after returning from the

vacation the complainant took 9 days for registering the complaint,

which reflects that the allegations made by the complainant were a

concocted and baseless story. The petitioner refuted the statement of

Sh.S.P.Srivastava, SI on the ground that he was the batch mate of the

husband of the complainant and also because he himself deposed that

he had not heard the petitioner passing lewd comments against the

complainant. Instead he had stated that he had heard from someone

else that such comments had been passed by the petitioner against the

complainant. According to the petitioner, the committee had not

evaluated the depositions of the witnesses properly and had concluded

about the guilt of the petitioner on the basis of their whims and fancies.

12. The appeal of the petitioner against the order of the Disciplinary

Authority dated 17th September, 2010 was, however, dismissed by the

order dated 25th October, 2010 by the Inspector General, Western Zone,

Appellate Authority.

13. Aggrieved by the order of the Disciplinary Authority dated 17th

September, 2010 and the Appellate Authority dated 25th October, 2010,

the petitioner preferred a revision petition to the Director General, CISF

on 17th November, 2010. The revision petition was decided by the

Director General, CISF by his order dated 10th June, 2011 who had

taken into consideration the pleas and contentions of the petitioner. The

Revisional Authority inferred that the complaint committee had rightly

concluded about the guilt of the petitioner and relied on the deposition

of Sh.S.P.Srivastava who had categorically deposed in his cross-

examination that Sh.S.N.Kumar had disclosed the facts of the lewd

comments passed by the petitioner on the complainant. Emphasis was

laid on the fact that no reason had been disclosed as to why the

complainant would have lodged a false complaint against the petitioner.

The Revisional Authority also repelled the plea of the petitioner that the

entire proceedings were allegedly conducted in the absence of the

presenting officer. It was held that the petitioner was not prejudiced in

any manner on account of the absence of the presenting officer nor any

prejudice to the petitioner has been alleged. The Revisional Authority,

however, took a compassionate view of the long service rendered by the

petitioner and gave him another chance to serve in the Force, and

therefore, set aside the penalty order of compulsory retirement of the

petitioner and awarded the punishment of reduction of the pay to the

lowest stage from the date of his compulsory retirement in the time

scale of pay/pay band for a period of three years with further direction

that during the period of reduction, the petitioner will not earn the

increment of pay and on expiry of the period, the reduction will have the

affect of postponing his future increments of pay and will adversely

affect his pension. The intervening period from the date of his

compulsory retirement from service to the date of joining on

reinstatement was ordered to be regularized by treating the same as

"Dies Non".

14. The orders Revisional Authority and Appellate Authority passed

against the petitioner are challenged in the present writ petition

primarily on the ground that there was no evidence against the

petitioner before the enquiry committee and that the statement of the

complainant remained uncorroborated. On behalf of the petitioner, it

has also been contended that the statement of the witness

Sh.S.P.Srivastava could not be relied on as it was based on hear say and

that whatsoever was stated by him was based on the statement of

Sh.S.N.Kumar who has not supported the plea of the complainant. In

the circumstances, it was contended that there wasn‟t sufficient

evidence against the petitioner for establishing that he had passed the

lewd comments against the complainant and that the case against the

petitioner is based on no evidence. The learned counsel for the petitioner

relied on Rule 34 (iv) of the Central Industrial Security Forces Rules,

2001 and asserted that under the said Rule, the scale of pay of the

petitioner could be reduced to only the next lower grade of pay and not

to the lowest stage.

15. The pleas and contentions raised on behalf of the petitioner have

been refuted by the learned counsel for the respondents who appeared

pursuant to an advance notice given to the respondents and he has

relied on the reasons as stipulated in the report of the Enquiry

Committee and the reasons given by the Disciplinary Authority as well

as the Appellate Authority and Revisional Authority to conclude that

there was sufficient evidence to infer that the petitioner had passed the

lewd comments against the complainant on 25th May, 2007.

16. This Court has heard the pleas and contentions of the parties in

detail and has also perused the record produced along with the writ

petition especially the statements of the complainant; Sh.S.P.Srivastava,

a witness; the petitioner, and Sh.S.N.Kumar, another witness recorded

by the respondents during the enquiry proceedings.

17. The jurisdiction of the Court in judicial review is limited. The

charges in departmental proceedings are not required to be proved like a

criminal trial i.e. beyond all reasonable doubt, but an Enquiry Officer

has to analyze the evidence and documents to reach a conclusion on the

basis of preponderance of probability, in order to infer whether the

charge against the charged officer is made out or not on the basis of the

record. While doing so he cannot take into consideration any irrelevant

facts, nor can he refuse to consider the relevant facts. The Enquiry

Officer/Committee also cannot shift the burden of proof nor can it reject

the relevant testimonies of the witnesses only on the basis of its own

surmises and conjectures.

18. The High Court also cannot take over the functions of the

Disciplinary Authority, nor can it sit in appeal on the findings of the

enquiry committee, the Disciplinary Authority nor can assume the role

of the Appellate Authority. The Court, therefore, should not interfere

with the findings of fact arrived at in the disciplinary proceedings except

in the case of mala fides or perversity i.e. where there is no evidence to

support a finding or where the finding is such that no one acting

reasonably or with objectivity could have arrived at such a conclusion or

where a reasonable opportunity has not been given to the charged

officer to defend himself or the case is that there has been non

application of mind on the part of the Enquiry Authority or if the

charges are vague or if the punishment imposed is shocking to the

conscience of the Court.

19. The learned counsel for the petitioner has contended that there is

no sufficient evidence to substantiate the allegations against the

petitioner as the statement of Sh.S.P.Srivastava was based on

whatsoever was disclosed to him by Sh.S.N.Kumar and therefore, the

statement of the complainant remain uncorroborated. Perusal of the

statement of the complainant reveals that she had categorically deposed

that when she had gone after the security check at the Airport, after

taking her Cabin baggage from the X-ray machine, she had heard the

petitioner speaking to SI S.N. Kumar in a very filthy language and

passing lewd comments, stating that if the complainant, who is going to

her husband would come back pregnant, it would not be known whether

it would be by her husband or someone else. Though Sh.S.N.Kumar

had not supported the complainant‟s statement, however, the Enquiry

Committee had categorically noted the demeanor of the said witness,

who was said to be quite aggressive throughout the cross-examination.

The Enquiry Committee had also noted that gender bias was quiet

apparent in Sh.S.N.Kumar‟s attitude towards women. Even though

Sh.S.N.Kumar, SI had not corroborated the version of the complainant,

in the facts and circumstances, the statement of Sh.S.P.Srivastava

becomes relevant since he had deposed that Sh.S.N.Kumar had told him

about the incident. Perusal of the statement of the complainant and the

statement of Sh.S.P.Srivastava and the fact that no motive or reason has

been successfully alleged or established by the petitioner against the

complainant and the said witness that they gave false depositions to

implicate the petitioner, reflects that the enquiry committee had not

drawn any such inferences which are unreasonable or which have been

arrived at without any objectivity which would show non application of

mind. In (1982) 1 SCC 143, J.D.Jain Vs State Bank of India, it was held

that the confession of the delinquent made in the presence of witnesses

and to the higher officer who also appeared as witness, is reliable. It was

further held that in domestic enquiry, if the complaint against the

delinquent employee is not frivolous and if substantiated by

circumstantial evidence, can be relied on. Supreme Court in State of

Haryana Vs Rattan Singh, (1977) 2 SCC 491 had held that in domestic

enquiry there is no allergy to hearsay evidence provided it has

reasonable nexus and credibility. The Apex Court in para 4 had held as

under:

"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 was held that in departmental enquiry strict rules of Evidence

Act are not applicable and inference has to be drawn on the basis of fair

play and natural justice. Rather, only total absence and not the

sufficiency of evidence before the Tribunal is ground for interference by

Court.In the circumstances, the plea of the learned counsel for the

petitioner that there isn‟t any sufficient evidence and thus, the case

against the petitioner is based on no evidence cannot be accepted. The

finding of the enquiry committee and the Disciplinary Authority as well

as the Appellate Authority cannot be interfered by this Court in exercise

of its jurisdiction under Article 226 of the Constitution of India in the

facts and circumstances. On the basis of preponderance of probability,

it is apparent that the reasonable inference is that the allegation that

the petitioner had passed lewd comments against the complainant is

made out and that the plea to the contrary by and on behalf of the

petitioner is to be repelled.

20. The next plea on behalf of the petitioner by the learned counsel is

that under Rule 34 (iv) of CISF Rule, 2001, the petitioner could not be

awarded the penalty of reduction of pay to the lowest stage and that the

petitioner instead could have been awarded at the most only the penalty

to place him in the lower grade by one stage or immediately below his

pay scale or grade. On plain reading of Rule 34 (iv) of CISF Rules, it is

apparent that the said rule does not contemplate that the penalty of

reduction to a lower time scale of pay grade can be restricted by one

grade only. Under Rule 34 (8) dealing with minor penalties, it is clearly

stipulated that the penalty of reduction to a lower stage would be by one

stage only. Whereas, no such restriction is stipulated in Sub Rule (iv) of

the said Rule. In the circumstances, it is apparent that wherever the

penalty of reduction of pay to lower stage by one stage is to be imposed,

it is specially stipulated. This cannot be disputed by the petitioner that

the penalty imposed was a major penalty and not a minor penalty. The

respondents had imposed a major penalty of compulsory retirement

from service as against the petitioner which was, however, modified by

the Revisional Authority to reduction of his pay to the lowest stage from

the date of his compulsory retirement as contemplated under Rule 34

(iv) of said Rule. In the circumstances, the penalty imposed upon the

petitioner cannot be held to be contrary to the relevant rules and the

petitioner is not entitled for any interference by this Court in the facts

and circumstances.

21. No other ground or plea has been raised on behalf of the

petitioner. In the circumstances, this Court finds no such illegality,

irregularity or perversity in the orders challenged by the petitioner which

require any interference by this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India. The writ petition is

therefore, dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

November 09, 2011.

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