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2020 Supreme(UK) 164
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Ramesh Ranganathan, Ramesh Chandra Khulbe, JJ.
Bhuwan Chandra Pandey - Appellant
Versus
Union Of India And Others - Respondent
Writ Petition (S/B) No. 153 of 2013
Decided On : 15-06-2020
Sanjay Raturi, Advocate, Sanjay Bhatt, Advocate
Headnote:
[KEYWORD] - Sole testimony of victim - Sexual harassment - Departmental enquiry - Proportionality of punishment - Civil Services Regulations, Rule 353 - Compassionate allowance. [SUBJECT] - Departmental Enquiry - Sexual Harassment - Proportionality of Punishment - Civil Services Regulations, Rule 353 - Compassionate Allowance. [ACT SECTION LIST] - Constitution of India, 1950 - Articles 14, 311(1), 311(2), 320(3)(c). Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Rules 11, 12, 13, 14, 15, 16, 353. [SUMMARY] - The petitioner, a paramilitary officer, was dismissed from service after being found guilty of sexual harassment and molestation of a subordinate trainee and attempting to coerce her to withdraw her complaint. The petitioner challenged the dismissal order, arguing that the sole testimony of the victim was insufficient to establish the charges, that the inquiry proceedings were vitiated, that the disciplinary authority failed to assign reasons for disagreeing with the findings of the inquiry committee, that the appellate authority's order was vitiated for failure to assign reasons, that repeated inquiries were illegal and prejudicial, that the inquiry committee was illegal as it consisted of lower-rank officers, that the disciplinary authority lacked jurisdiction to direct that a fresh charge sheet be issued, that the UPSC lacked jurisdiction to advise that a fresh charge sheet be issued, that the earlier charge sheet was cancelled by an authority subordinate in rank to the authority which issued it, and that the punishment imposed was disproportionate. The Court held that the sole testimony of the victim was sufficient to establish the charges, that the inquiry proceedings were not vitiated, that the disciplinary authority had assigned reasons for disagreeing with the findings of the inquiry committee, that the appellate authority's order was not vitiated for failure to assign reasons, that the repeated inquiries were not illegal or prejudicial, that the inquiry committee was not illegal as it consisted of lower-rank officers, that the disciplinary authority had jurisdiction to direct that a fresh charge sheet be issued, that the UPSC had jurisdiction to advise that a fresh charge sheet be issued, that the earlier charge sheet was not cancelled by an authority subordinate in rank to the authority which issued it, and that the punishment imposed was not disproportionate. However, the Court held that the authorities concerned were required to examine whether or not there were circumstances deserving of special consideration in the petitioner's case for him to be granted compassionate allowance under Rule 353 of the Civil Services Regulations. The Court directed the petitioner to make a representation to the competent authority requesting him to exercise his powers under Rule 353 and directed the competent authority to consider the petitioner's claim for grant of compassionate allowance in accordance with law and pass appropriate orders thereupon within one month from the date of receipt of any such representation. [MAIN LEGAL POINT] - The punishment of dismissal from service imposed on the petitioner for the charges held established is commensurate to the charges held established. The acts of a superior officer, in taking advantage of the vulnerability of a subordinate lady trainee and in indulging in such heinous acts of molestation and sexual abuse, justified the deterrent punishment of dismissal from service being imposed on him. Under no circumstances, be it in the Paramilitary Forces or elsewhere, can such acts either be condoned or a lenient view be taken thereof.
JUDGMENT
Ramesh Ranganathan, C.J. - Is the sole testimony, of the victim of sexual abuse, sufficient to hold the perpetrator guilty of misconduct in a departmental enquiry? Is the punishment of dismissal from service, imposed on the perpetrator as a consequence thereof, grossly disproportionate warranting interference by this Court in the exercise of its power of judicial review? These questions, among several others, arise for consideration in this writ petition.
2. The extra-ordinary jurisdiction of this Court, under Article 226 of the Constitution of India, has been invoked by the petitioner seeking a writ of certiorari to quash the order of punishment of dismissal dated 10.05.2012, the appellate order, the order directing initiation of a de-novo enquiry, and the fresh charge sheet, declaring the same as illegal, de hors the rules and unconstitutional; to issue a writ of mandamus commanding the respondents to treat the petitioner as continuing in service, and reinstate him with all consequential benefits including promotion, upgradation of pay, revised pay scales and arrears of salary, as he would have been entitled to, if the impugned orders had not been passed; for a writ of mandamus to consider the petitioner's claim for payment of damages on account of the tortuous act of the respondents; and to quantify the damages to be recovered from the erring officers, and persons who were instrumental and responsible for the same.
3. Facts, to the limited extent necessary, are that, for the paramedic course (the duration of which was for a period of three months), the petitioner was nominated, for the three day period 16.08.1998 to 18.08.1998, as a guest instructor for an outdoor exercise with trainees, for conducting a half day theory class, a half night march exercise at the S.S.B. Academy Gwaldum, and to impart them training on military topics such as night navigation and map reading. On 18.08.1998 the trainees, including two lady members of the 94 medic course, were imparted training on theoretical subjects. The half night training exercise included a night march. However, because of heavy rains in that area, it was decided by the petitioner's superior officers not to permit both the lady trainees to march in the wet and muddy hilly areas to prevent any casualty occurring thereby. In the affidavit, filed in support of the writ petition, the petitioner states that it was decided to give minimum or grace marks for the night march training to the two lady trainees as they did not participate in the night march.
4. After completion of the night training exercise, the petitioner, along with several other members including the two lady trainees, sat in the cabin of a truck which was coming back to Gwaldum station. It is in the cabin of the truck that the petitioner is said to have molested one of the lady trainees, and to have sexually harassed her.
5. While this unsavory incident is said to have taken place in the cabin of the truck at around 11 p.m. on 18.08.1998, the victim trainee (hereinafter referred to as the "complainant") lodged a complaint on 19.08.1998 to the DIG F.A Gwaldum alleging sexual harassment by the petitioner during the return journey on 18.08.1998. Thereafter the petitioner was informed, by memorandum dated 08.10.1999, that it was proposed to take action against him under Rule 16 of the CCS (CCA) Rules, 1965 (for short the "1965 Rules"). A statement of imputations of misconduct/misbehavior, on which action was proposed to be taken, was issued giving the petitioner an opportunity to submit his representation thereto. Rule 16 of the 1965 Rules prescribes the procedure for imposing the minor penalties as specified under Rule 11. The inquiry committee, constituted thereafter, submitted its report on 21.09.2001 holding the petitioner guilty of the charges. The disciplinary authority agreed with the findings of the Inquiry Committee. Though minor penalty proceedings, under Rule 16 of the 1965 Rules, had been initiated
