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SUPREME COURT OF INDIA
(From the High Court of Calcutta)
DHANANJAYA Y. CHANDRACHUD, A.S. BOPANNA, JJ.
Union of India and Ors. – Appellants
Versus
Mudrika Singh –Respondent
Civil Appeal No. 6859 of 2021
Decided on : 03-12-2021
(A) Border Security Force Act, 1968 – Sections 24(a) and 48(1) – Border Security Force Rules, 1969 – Rules 48 and 51 read with Rule 6 – Reinstatement in service – Allegation of disgraceful conduct(Sexual assault) – Power to order Additional Record of Evidence (RoE) is incidental to realize purpose of Rules 48 and 51 – Commandant was acting within his jurisdiction in ordering an additional RoE to clarify date of incident – This is not a case of insufficient evidence – During course of RoE, respondent himself stood by complainant‘s version of date and time on which alleged incident took place – RoE which was prepared initially was comprehensive in nature and contained all necessary details of incident, which were sufficient to sustain final conclusion – Provisions of Rule 59(1)(iii) cannot be stretched to mean that absent conferment of a specific or express power to Commandant in similar terms, Commandant had no jurisdiction to seek clarification or order an additional RoE – It cannot be postulated that by ordering an additional RoE, Commandant had usurped power of a superior authority or acted contrary to jurisdiction conferred upon him – There was no error of jurisdiction on part of Commandant in seeking clarification in regard to date of incident by calling for an additional RoE – Respondent was not prejudiced since he understood allegations against him as pertaining to events which transpired on night when he was on duty – Punishment which has been imposed on respondent is in compliance with clauses (a) to (g) of Section 48(1) – Existence of transformative legislation may not come to aid of persons aggrieved of sexual harassment if appellate mechanisms turn process into a punishment – It is important that courts uphold spirit of right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of Constitution – Discrepancy regarding date of occurrence was of a minor nature since event occurred soon after midnight and on next day – Deeming such a trivial aspect to be of monumental relevance, while invalidating entirety of disciplinary proceedings against respondent and reinstating him to his position renders complainant‘s remedy at nought – Impugned judgment and order of Division Bench of Calcutta High Court and of Single Judge of Calcutta High Court set aside – In consequence, writ petition filed by respondent shall stand dismissed.[Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013] (Paras 22, 23, 24, 30, 31, 32 and 33)
(B) Statute Law – Amendment to Statute – An amendment to a statute or to statutory rules may often be clarificatory in nature – It is clarificatory in the sense that it expressly recognizes a power that already vests in authority – In those circumstances, when an amendment is purely clarificatory or declaratory in nature, it is deemed to operate retrospectively – Apex Court has often recognized amendments to service rules as clarificatory in nature, thereby having a retrospective operation. (Paras 21 and 22)
Facts of the case:
Union of India and officials of the Border Security Force1 are in appeal against a judgment of a Division Bench of the Calcutta High Court dated 18th December 2018 which quashed disciplinary proceedings against the respondent and reinstated him to his initial position in the BSF.
Findings of Court:
High Court, in this case, was not only incorrect in its interpretation of jurisdiction of Commandant and the obligation of the SSFC to furnish reasons under the BSF Act 1968 and Rules therein, but also demonstrated a callous attitude to the gravamen of the proceedings. Courts must interpret service rules and statutory regulations governing the prevention of sexual harassment at the workplace in a manner that metes out procedural and substantive justice to all parties.
Result : Appeal allowed.
JUDGMENT :
Dr. Dhananjaya Y. Chandrachud, J
| A. Introduction ....................................................................................................... 3 |
| B. Submissions ....................................................................................................... 7 |
| C Analysis .............................................................................................................. 10 |
| C.1 Jurisdiction of the Commandant ...................................................................... 13 |
| C.2 Recording of reasons ...................................................................................... 23 |
| D Conclusion .......................................................................................................... 31 |
A. Introduction
1. The Union of India and officials of the Border Security Force1[“BSF”] are in appeal against a judgment of a Division Bench of the Calcutta High Court dated 18 December 2018 which quashed disciplinary proceedings against the respondent and reinstated him to his initial position in the BSF.
2. In April 2006, at the time of the alleged misconduct, the respondent was a Head Constable in the BSF and was deployed to the Seventy-second Battalion. On 2 May 2006, the Commandant directed the Deputy Commandant to prepare a record of evidence2[”RoE”] against the respondent for an offence constituting “disgraceful conduct” under Section 24(a) of the Border Security Force Act 19683[“BSF Act 1968”]. The specific allegation, as set out in the order, was as follows:
In that he, between 0200 Hrs to 0600 Hrs on 16.04.2006 while on Naka duty under BOP Sahab Khan committed sodomy on the person of No. [xyz] Const [xyz] of the sam(e) Battalion.”
3. The incident in question is alleged to have taken place on the night intervening 16 and 17 April 2006. The complainant, a Constable in the BSF, was on Naka duty between 02:00 to 06:00 hours when the respondent is alleged to have committed an act of sexual assault on him. The complainant submitted a written complaint on 19 April 2006. Under the BSF Act 1968, such conduct is liable to be prosecuted under Section 24(a) which reads as follows:
(a) is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind; or
[…]
shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.”
4. The RoE was prepared by the Deputy Commandant and submitted to the Commandant. On 10 June 2006, the Commandant noted that on a scrutiny of the RoE proceedings, it was found that there was an inconsistency in the statements of the witnesses as regards the date on which the incident had occurred. Hence, on 10 June 2006, the Commandant called for the preparation of an additional RoE. Following the receipt of the additional RoE, the Commandant issued an order to convene a Summary Security Force Court4[“SSFC”] to try the respondent. In the course of the evidence which was recorded pursuant to the direction of the Commandant seeking an additional RoE, the complainant stated that the incident took place on 17 April 2006. The respondent was provided with copies of the RoE, additional RoE and the charge sheet on 3 August 2006.
5. On 7 August 2006, the SSFC convened at the Headquarters of the seventy-second Battalion of the BSF, at Narayanpur, Malda (West Bengal) for enquiring into the charge under Section 24(a) the BSF Act 1968. The respondent pleaded not guilty to the charge. Four prosecution witnesses were examined and the respondent was furnished with an opportunity to cross-examine them and to call for defence witne
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