Jahid Ali vs Union Of India & Ors.
2017 Latest Caselaw 5482 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 11182/2015

                                       Reserved on: 11th August, 2017
                               Date of decision : 27th September, 2017

    JAHID ALI                                    .....Petitioner
                         Through      Mr.Chandra Shekhar and
                                      Mr.Saad Anwar, Advs.


                         Versus


      UNION OF INDIA & ORS                       ..... Respondents
                    Through           Mr.Dev P. Bharwwaj, CGSC


      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE NAVIN CHAWLA

      NAVIN CHAWLA, J.

By this writ petition under Article 226 of the Constitution of

India, the petitioner impugns the order dated 24.12.2014 passed by the

Commandant (Medical), MTC, Sashastra Seema Bal, Shimla

dismissing the petitioner from service having found him guilty of an

offence under section 43 of Sashastra Seema Bal Act, 2007. The

petitioner further challenges the order dated 08.09.2015 vide which his

WP(C) 11182/2015 Page 1 appeal against the same was dismissed by Inspector General

(Personnel).

2. The petitioner aged about 29 years was appointed as Constable

(Nursing Orderly) in Sashastra Seema Bal (hereinafter referred to as

SSB) at 14th Bn SSB Jayanagar on 09.07.2012. Thereafter, he was

detailed for 06th Basic Medics Course held at MTC, SSB, Shimla w.e.f

30.06.2014 to 01.01.2015.

3. While undergoing 06th Basic Medics Course at MTC Shimla,

petitioner sent Short Message Service (SMS) to Dr. X (name is being

withheld) on 18.08.2014 at 1252 hrs. The same is quoted herein

below:

"I most like you. But I have little experience and don't know how to express the feelings. You really fairy @ 12."

4. A series of SMS were thereafter exchanged between Dr.X and

the petitioner on the same day, which were quoted by her in the

complaint dated 21.08.2014 to the Commandant, 25 th Bn, and are

reproduced herein below:

"I, Dr.X received some messages from a no. not known to me on 18th August 2014 at 12:52 from the number was +91-9805581971, the conversation was as under:-

WP(C) 11182/2015                                                  Page 2
       Mon, 18-8-14
      12:52 PM

      Myself 18/8/2014
      12:52 PM "Who are you?"

(By this time I know that is someone related to MT SSB as he dropped in 2 clue 1 @ 12.2 ali)

Sender 13:17 18/8/2014 "ali"

Me 13:19 18/8/2014 "What???"

Me 13:24 "Kameene phn utha............! Hai kaun tu?? Stop sending such messages!"

Me 18/8/2014 20:39 "Tum jo koi bhi ho chup chap mujhe bata do apna naam etc. I wont make it big issue....... agar nahin bataya then, U WILL SEE......."

Sender 22:16 18//14 "Jahid Ali aap mujhe punishment de dena please! Kisi se kehna nahi class me @ good night"

Hence I came to know by this conversation that it is some person in MTC's Basic Medic Course under training.

The next day i.e. 19/8/2014 I called the person asked "ye messages tumne Bheje mujhe", he replied "Ji, Maine Bheje".

He accepted the fact that he took my phone number from the M.I room and sent those messages."

Sir,

WP(C) 11182/2015 Page 3 If a person can send a superior Lady Officer such immoral messages in presence of so many people at MTC then he can do any immoral act when in a solitary condition to any lady.

Even after accepting the fact that he sent me messages this person did not apologies for this at. It was only after scolding him he apologized with no shame at all. I scolded him in presence of Kusum Ji (My peon) I therefore request you sir, please take strict action against the constable Jahid Ali, 14th Bn, Jaynagar".

5. On basis of the complaint, a Court of Inquiry under Rule 172 of

SSB Rules, 2009 was initiated against the petitioner vide order dated

20.08.2014, passed by Commandant, 25th Bn, SSB, Ghitorni. On the

basis of the Court of Inquiry Report, hearing under Rule 46 of SSB

Rules, 2009 was held on charge under Section 43 of the SSB Act,

2007. As the offence committed by the petitioner was considered

serious in nature and against a woman at workplace. A plea of "Not

guilty" was recorded and case was recommended for preparation of

Record of Evidence.

6. The statement of the petitioner recorded in the Record of

Evidence is of some relevance and is quoted below:

WP(C) 11182/2015 Page 4 "I think and feel that she used to care for me more than others because I was good in studies and she had also enquired about Ed and who all are going for Namaaz etc. She is cultured, simple and not fashionable. When Dr. .... did not come to our class on 16th August 2014, I thought that I might have done something wrong due to which Dr... did not come to our class. This thought process was in my mind on 16th & 17th August 2014, but since Monday i.e. 18th Aug'2014 was a holiday, I was in my hostel room at about 1300 hrs., when I thought that if I send a SMS to Dr.. she will not feel good "yaani unko buraa lagega aur mujhe daant degi yaa fatkaar degi aur meri tauheen par shayad who class main aaen'' After this about after 10 minutes or so Dr. Mam sent the reply of the SMS "Who are you"? And after this I responded as "Ali" and thereafter a few messages were shared as already narrated, in between a few calls came from Dr. Mam, which I didn't pick up. This all happened on 18th August 2014 in between 1300 hrs. to 1330 hrs. approximately. There was a gap and no SMS or phone came or sent by me but then on the evening of 18th August 2014 at about 1930 hrs or 2000 hrs not exactly known, Dr. Mam called on my phone but I didn't pick it up. Then she sent a SMS "Agar apna name etc. bata doge, I won't make it big issue, otherwise then you will see." Then at about 2200 hrs after taking my dinner I sent an SMS " JAHID ALI AAP MUJHE PUNISHMENT DE DENA, PLEASE KEHNA NAHI KISI SE CLASS MAIN" Then no SMS were either received or sent by me. I had taken the mobile no. of Dr. Mam from M I Room MTC Shimla and saved it on my mobile by mentioned the name as "VIZAS" since Vizas was the company I used to work for, before joining SSB and I never wanted that if I save

WP(C) 11182/2015 Page 5 the correct name of Dr. Mam and if someone sees it, will not feel correct or will not feel good. My feeling or intention was not bad towards Dr. Mam. I used to feel that she is good, teaches well, cultured and had no bad intention. I had sent the messages intentionally and had sent them personally."

7. On the basis of Record of Evidence, a Summary Force Court

was held against the petitioner and vide impugned order dated

24.12.2014, the petitioner was dismissed from service. His appeal

against the said order was also dismissed vide order dated 08.09.2015,

impugned before us.

8. The petitioner, during the course of hearing has raised two

contentions:

(i) In terms of the Rule 46 of SSB Rules, 2009, the

Commanding Officer was under an obligation to consider the

previous character of the accused before awarding the

punishment of dismissal to the petitioner. It is submitted that in

the Record of Evidence, witness no.1, Sri Laxman Singh, DFO

(M), MTC, Shimla had stated that the general discipline of the

petitioner was satisfactory during the course. Even witness no.3,

Rajinder Singh, ASI (GD),MTC, Shimla had stated that there

WP(C) 11182/2015 Page 6 was no indiscipline report against the petitioner barring the

present complaint. This, according to the petitioner, should

have persuaded the Commanding Officer to dismiss the charge

against the petitioner in view of the Proviso (b) to Rule 46 of

the SSB Rules, 2009.

(ii) As the petitioner had immediately accepted the fact of his

sending the SMS in question, a lenient view should have been

taken and the punishment of dismissal from service is totally

disproportionate to the misdemeanour in question.

9. We have considered the submissions of the petitioner, but find

no merit in the same.

10. It is to be noted that the petitioner had been detailed for the 6 th

Basic Medics Course held at MTC, SSB, Shimla. Dr.X was not only a

superior officer but was also an instructor at the Training Centre and

the petitioner and other officers were taking training from her.

11. Sexual harassment at a work place is considered a violation of

women's right to equality, life and liberty. Sexual Harassment of

Women at Workplace (Prevention, Prohibition and Redressal) Act,

2013 has been promulgated to provide protection against sexual

WP(C) 11182/2015 Page 7 harassment of women at workplace. Section 2(n) of the Act defines

"sexual harassment" as under:

"sexual harassment" includes any one or more of the

following unwelcome acts or behaviour (whether directly or

by implication) namely:

             (i)     Physical contact and advance; or
             (ii)    A demand or request for sexual favour; or

(iii) Making sexually coloured remark; or

(iv) Showing pornography; or

(v) Any other unwelcome physical, verbal or non-

verbal conduct of sexual nature."

12. This Court in the case of U.S. Verma v. National Commission

for Women and Ors. 163 (2009) DLT 557 relying upon the judgment

given by United States Court of Appeals in Ellison v Brady (1991) 9th

Circuit, 924 F.2d, 872, had held that the standard to be applied in such

cases is not of a "reasonable man" but of a "reasonable woman".

13. The SMS sent by the petitioner certainly had sexual overtones

and violated the decency, respect and dignity Dr.X deserved. Dr.X

must be dealing with hundred of officers in performance of her duties

as an instructor. She cannot be left exposed to such harassment by

stating that it was an innocent flirtation or mistake.

WP(C) 11182/2015 Page 8

14. Another important consideration, as noted above, is that Dr.X

was the instructor of the petitioner. She therefore held the status of a

teacher. The relationship between a teacher and the student is one of

parent and a child. Such relationship has to be respected. The

petitioner had not only exceeded the boundary but had without

compunction sent offending messages seeking relationship and

proximity.

15. Furthermore, we are dealing with the armed forces where

discipline is of paramount importance and most important attribute

required in any officer. Dr.X was a superior officer of the petitioner

and deserved all respect. Petitioner's conduct, especially in context of

Armed Forces was an act of gross indiscipline.

16. The conduct of the petitioner was therefore clearly prejudicial to

good order and the discipline of the force. Even if there were no

previous complaints against the petitioner, this incident, in our

opinion, was of a nature that rightly could not go unpunished.

17. On the second ground of punishment being disproportionate, it

is well settled that the Court while exercising its jurisdiction under

Article 226 of the Constitution of India, is not hearing the appeal

WP(C) 11182/2015 Page 9 against the decision of the Disciplinary Authority imposing

punishment upon the delinquent employee. Unless the Court comes to

the conclusion that the penalty imposed by the Disciplinary Authority

is shockingly disproportionate to the misconduct committed by the

delinquent employee, the Court has to be slow in interfering with the

order of punishment which is imposed on the delinquent employee. In

Union of India v. Diler Singh, (2016) 13 SCC 71, Supreme Court

further held that as a member of a discipline force, deviation from the

discipline and failure to follow the rules would not normally warrant

any leniency.

18. In the present case and as discussed above, we do not find the

punishment imposed on the petitioner to be shockingly

disproportionate to his misconduct, specially in the light of peculiar

position of the petitioner qua Dr.X and the nature of his misconduct.

We, therefore, find no merit in the petition and the same is

dismissed with no order as to cost.

                                             NAVIN CHAWLA, J


                                               SANJIV KHANNA, J

SEPTEMBER 27, 2017/vp




WP(C) 11182/2015                                                 Page 10