Paragraph numbers below are the court’s original numbering, recovered from the source text.
65. Applying the aforesaid dictum as laid by this Court no prejudice could be said to have been caused to the respondent even if we believe that he was not asked to plead guilty to the second complaint. Had the respondent been asked if he pleaded guilty to the allegations levelled in the second complaint, then in such circumstances, whether the result would have been any diff erent? The answer to this has to be an emphatic “No”. We say so because the respondent had denied all the ten charges which were framed against him. In other words, the respondent answered to all the ten points by way of his written statement of defence and even had an opportunity to cross-examine the witnesses on each of the charges.
66. We are of the view that the High Court completely failed to advert itself to the principles laid down by this Court as aforesaid, and mechanically proceeded to set-aside the order of punishment imposed by the disciplinary authority on the ground that there was nothing to indicate that the respondent was asked whether he pleaded guilty to the charges imputed in the second complaint without applying the principle of “test of prejudice”. E.3 Whether the Central Complaints Committee could have put questions to the witnesses in a departmental inquiry? i) “Fact Finding” Authority in Disciplinary Proceedings
67. The High Court observed that the Central Complaints Committee in the course of the inquiry had put questions to the prosecution witnesses, and even the examination-in-chief was recorded by it, and as such it played the role of a prosecutor which it could not have, thereby vitiating the inquiry proceedings.
68. Ordinarily, in a disciplinary proceeding conducted under Rule 14 of the 1965 CCS Rules, the disciplinary authority as per Rule 14 sub-rule 2 read with sub-rule 5(c) may either conduct the inquiry itself or appoint an inquiry committee to conduct the inquiry. The inquiry committee may further appoint a presenting offi cer to present the case on its behalf in support of the articles of charge. It is worthwhile to note that it is the Inquiry Authority and the Disciplinary Authority who are the fact fi nding 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 Offi cer” 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 Offi cer’ has been appointed by the Disciplinary Authority, such Offi cer shall present the case in support of the articles of charge. Conversely, what logically transpires from the aforesaid is that, where no presenting offi cer has been appointed, the duty or role to present the case in support of the articles of charge falls back on the Disciplinary Authority or the Inquiry Authority as the case may be.
70. This Court in Medha Kotwal Lele and Others v. Union of India and Others reported in (2013) 1 SCC 311, held that the complaints committee under the Vishaka Guidelines shall be deemed to be the Inquiry Authority. The relevant portion is reproduced below: – “Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka case (1997) 6 SCC 241 : 1997 SCC (Cri) 932, SCC at p. 253, will be deemed to be an inquiry authority for the purposes of the Central Civil Services (Conduct) Rules, 1964 (hereinafter call UNION OF INDIA AND OTHERS v. DILIP PAUL [J. B. PARDIWALA, J.] the CCS Rules) and the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the Rules.” (Emphasis supplied)
71. This Court in Sakshi v. Union of India and Others reported in (2004) 5 SCC 518 had observed that quite often in sensitive matters particularly those involving crime against women the victims either due to fear or embarrassment were not able to openly disclose the entire incident. Often the victims during their testimony were put embarrassing questions by accused with the sole purpose of confusing or suppressing out of shame. To remedy this, directions were issued by this Court that for cross-examination of victims, the question would be given to the presiding offi cer who in turn would ask them in clear language which is not embarrassing. The relevant observations are reproduced below: – “32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross- examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of 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 offi cer 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, suffi cient breaks should be given as and when required. The provisions of sub-section (2) of Section 327 CrPC should also apply in inquiry or trial of off ences under Sections 354 and 377 IPC. 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 CrPC shall, in addition to the off ences mentioned in the sub-section, also apply in inquiry or trial of off ences under Sections 354 and 377 IPC. (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 accused; (ii) the questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to the presiding offi cer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing; (iii) the victim of child abuse or rape, while giving testimony in court, should be allowed suffi cient breaks as and when required.” (Emphasis supplied)
72. The power and discretion of the complaints committee to put question to the witnesses is further refl ected though implicitly in Clause 10(viii) of the 2006 Standing Order which provides that, the delinquent offi cer shall not cross-examine the complainant directly and instead should hand over the questions to the chairperson of the committee who in turn would then put them to the complainant, to ensure no fear or embarrassment is caused to the complainant. The provision reads as under: “10. COMPLAINT MECHANISM viii) Cross examination of the witnesses should be allowed by the complainant and alleged offi cer. 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-Sakshi vs. UOI & Others, i.e. to say “Questions put in cross-examination on behalf of accused UNION OF INDIA AND OTHERS v. DILIP PAUL [J. B. PARDIWALA, J.] (charged offi cer in our case), which relate directly to incident, should be given in writing to the Chairperson of the Complaints Committee who may put them to victim or witnesses in a language which is clear and NOT EMBARRASSING.” The questions shall thus be vetted by the Chairperson of such Complaints Committee.”
73. There appears to be neither any statutory bar nor any logic to restrict the power of the complaints committee to put questions to the witnesses only to the context enumerated in the aforesaid provision. The complaints committee being an inquiry authority and in some sense equivalent to a presiding offi cer of the court as inferred from Sakshi (supra), must be allowed to put questions on its own if a proper, fair and thorough inquiry is to take place.
74. If the observations of the High Court are accepted, it would lead to a chilling eff ect, whereby the complaints committee which is deemed to be an inquiry authority would be reduced to a mere recording machine.
75. We fail to understand what other purpose the complaints 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 Others reported in (2020) 9 SCC 471. The very same argument was canvassed before a three-Judge Bench that the Inquiry Offi cer 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. Signifi cant emphasis has been placed by the appellant on the fact that the enquiry offi cer 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 witness or party about any fact, in order to discover or to obtain proper proof of relevant facts. While strict rules of evidence are inapplicable to disciplinary proceedings, enquiry offi cers often put questions to witnesses in such proceedings in order to discover the truth. Indeed, it may be necessary to do such direct questioning in certain circumstances. Further, the learned counsel for the appellant, except for making a bald allegation that the enquiry offi cer has questioned the witnesses, did not point to any specifi c question put by the offi cer that would indicate that he had exceeded his jurisdiction. No specifi c malice or bias has been alleged against the enquiry offi cer, and even during the enquiry no request had been made to seek a replacement, thus, evidencing how these objections are nothing but an afterthought.” (Emphasis supplied)
77. If Section 165 of the Indian Evidence Act, 1872 permits a Judge to put questions to the parties or to the witnesses in order to discover or obtain proper proof of relevant facts and this provision being widely used by the judges throughout the country, we fail to understand as to how the complaints committee after being equated with a judge in a judicial proceeding be denied that privilege. However, it would be a diff erent situation if a specifi c case of personal bias is made out against the members of the committee. After all, the very purpose of the disciplinary proceedings is to reach to the bottom of the fact while aff ording adequate opportunities to the aff ected party.
78. Thus, the High Court was not correct in taking the view that the proceedings stood vitiated because the Central Complaints Committee put questions to the prosecution witnesses. E.4 Whether the Central Complaints Committee based its fi ndings on conjectures and surmises? Whether the case on hand is one of “no evidence”? i) Principle of “No Evidence” in Service Jurisprudence
79. It is well settled that the fi ndings of fact recorded in the course of any domestic inquiry, unless they are collateral or jurisdictional, are exempt from judicial review and that the court exercising writ jurisdiction should not sit in appeal over the ultimate decision based on such fi ndings and review it on merits. However, there are two well-known exceptions to the said rule. UNION OF INDIA AND OTHERS v. DILIP PAUL [J. B. PARDIWALA, J.] First, the case must not be one where there is “no evidence” to support the fi ndings. Secondly, the ultimate decision based on such fi ndings must not be perverse or unreasonable. These two concepts have affi nity 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 Radcliff e 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 aff airs 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 Radcliff e, 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 fi rst instance, how the rule over there is understood. Prof. H.W.R. Wade in his treatise on Administrative Law, Fourth Edition, has observed as follows: “It is one thing to weigh confl icting evidence which might justify a conclusion either way. It is another thing altogether to make insupportable fi ndings. This is an abuse of power and may cause grave injustice. At this point, therefore, the court is disposed to intervene. ‘No evidence’ does not mean only a total dearth of evidence. It extends to any case where the evidence, taken as a whole, is not reasonably capable of supporting the fi nding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. There is, indeed, the well-established rule that to fi nd facts on no evidence is to err in law.” (Emphasis supplied)
81. The learned Author has pointed out that the “no evidence” rule has some affi nity with the substantial evidence rule of American law which, as explained by Bernard Schwartz in his treatise on Administrative Law, 1976 Edition, at page 595, means “such evidence as might lead a reasonable person to make fi nding.” In other words, according to the learned Author, “The evidence in support of a fact-fi nding is substantial when from it an inference of existence of the fact may be drawn reasonably.”
82. The earliest English decision which has touched upon the concept of “no evidence” is that of the Court of Appeal in The King v. Carson Roberts reported in 1908 (1) K.B., 407. The question in that case was whether the superior court having the power to issue a writ of certiorari, if it appeared to it that the decision of the auditor in regard to disallowances and surcharges, under the Public Health Act, 1875, was erroneous, could review the same only when such decision was erroneous in point of law and not when the auditor had come to an erroneous conclusion in fact. Fletcher Moulton L.J. observed in that case as follows: “It is admitted by the appellant that if there was no evidence on which any tribunal could reasonably come to the conclusion to which the auditor has come the superior Courts have a jurisdiction to quash the surcharge, and in my opinion this is the case here.”
83. In the Deputy Industrial Injuries Commissioner (supra), two learned law Lords have made certain observations on the true content of the “no evidence” rule by treating the said rule as a principle of natural justice. Willmar L.J. observed as under: “Where so much is left to the discretion of the Commissioner, the only real 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 fi des 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. UNION OF INDIA AND OTHERS v. DILIP PAUL [J. B. PARDIWALA, J.] “In the context of the fi rst 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 event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. 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.””
85. In French Kier Developments Ltd. v. Secretary of State for the Environment reported in 1977 (1) All ELR 297, the jurisdiction of the court of Queen’s Bench Division was invoked for quashing the appellate decision of the Secretary of State confi rming the refusal of permission for development. The Secretary of State accepted the fi ndings of fact recorded by the Inspector at the conclusion of the public inquiry which followed the Borough Council’s refusal of permission but not his recommendation that the appeal should be allowed. The Secretary of State, in deciding the appeal, took into consideration the contents of a document and accepted them as correct, notwithstanding the fact that the Inspector had regarded the document as of no evidential value. The argument before Willis J. was that the Secretary of State should have ignored the document, or any reference to its contents, as the Inspector did, since it was not produced by any witness, its provenance was unexplained and it could not be tested by cross-examination. The learned Judge made the following observations while considering the submission: “It hardly needs to be said that legal rules of evidence are not applied at local inquiries, and both oral and documentary evidence is freely admitted in circumstances where even the more relaxed rules of evidence at the present time would not allow of its admission in a court of law. Nonetheless some limit must surely be imposed in fairness to an appellant on the scope of so-called evidence which by no stretch of the imagination can be said to have the slightest evidential value. This must, I should have thought, particularly be so when if such ‘evidence’ is considered, it is used to support a conclusion unfavourable to the appellant. I think the Inspector was light to ignore this document and the Secretary 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 Others v. S. Sree Rama Rao reported in AIR 1963 SC 1723, it was held at page 1726 that in considering whether a public offi cer is guilty of the misconduct charged against him the rule followed in criminal trials with regard to the establishment of charge by evidence beyond reasonable doubt was not applicable. In a proceeding under Art. 226, the High Court, not being a court of appeal over the decision of the domestic tribunal, was concerned to determine whether the inquiry was held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice were not violated. Then follow the following important observations: – “Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent offi cer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an UNION OF INDIA AND OTHERS v. DILIP PAUL [J. B. PARDIWALA, J.] independent fi nding on the evidence… if there be some legal evidence on which their fi ndings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.” (Emphasis supplied)
88. This decision was approvingly referred to and relied upon in State of Andhra Pradesh and Others v. Chitra Venkata Rao reported in(1975) 2 SCC 557.
89. In Union of India v. H.C. Goel reported in AIR 1964 SC 364, the question as to the amplitude and width of the judicial review under Art. 226, fell for consideration in the context of the disciplinary proceedings against Government servants. It was observed that “the High Court under Art. 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all” and that there was little doubt that a writ of Certiorari can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceeding is based on no evidence. A conclusion on a question of fact, it was held, would be assailable if it is manifest that there is no evidence to support it even assuming bona fi des of the disciplinary authority. The following observations made at page 369 are material from the point of view of the aspect under consideration: “… In exercising its jurisdiction under Art. 226 on such a plea, the High Court cannot consider the question about the suffi ciency 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 Another reported in (2013) 14 SCC 379, this Court laid down the scope of judicial review as regards the fi ndings 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 competent authority in accordance with the prescribed procedure and whether the rules of natural justice have been followed. The court can also consider whether there was some tangible evidence for proving the charge against the delinquent and such evidence reasonably supports the conclusions recorded by the competent authority. If the court comes to the conclusion that the enquiry was held in consonance with the prescribed procedure and the rules of natural justice and the conclusion recorded by the disciplinary authority is supported by some tangible evidence, then there is no scope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the conscience of the court.” (Emphasis supplied)
91. This Court in Aureliano Fernandes (supra) while discussing upon the extent to which a court can interfere with respect to the departmental proceedings conducted pursuant to the allegations of sexual harassment, made the following relevant observations: – “62. … Disciplinary Authority is the sole judge of facts and once fi ndings of fact, based on appreciation of evidence are recorded, the High Court in its writ jurisdiction should not normally interfere with those factual fi ndings unless it fi nds that the recorded fi ndings were based either on no evidence or that the fi ndings were wholly perverse and/or legally untenable. The Court is under a duty to satisfy 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.” (Emphasis supplied) ii) Standard of Proof in Disciplinary Proceedings UNION OF INDIA AND OTHERS v. DILIP PAUL [J. B. PARDIWALA, J.]
92. In another decision of this Court in West Bokaro Colliery (TISCO Ltd.) v. Ram Pravesh Singh reported in (2008) 3 SCC 729, it was held that in a departmental inquiry, the standard of proof is based on preponderance of probability and not beyond reasonable doubt. The relevant observation made in it are given below: – “20. The Tribunal has set aside the report of the enquiry offi cer and the order of dismissal passed by the punishing authority by observing that the charges against the respondent were not proved beyond reasonable doubt. It has repeatedly been held by this 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 diff erent 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 fi ndings 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 call the complainant in his chamber and made her sit for hours without any offi ce work. He further stated that quite often on such occasions, the respondent would draw the curtains of his chamber. He also stated that the complainant had once conveyed to him that the respondent used to make proposals of marriage to her. Nothing substantial could be elicited from the cross-examination of Mast Ram Thakur. In fact, what has been deposed by Mast Ram Thakur as referred above, has not even been remotely disputed in the cross-examination by way of even a suggestion. b. Shri Rynjan Singh, peon (PW8) and Shri Chandan Sarkar (PW6) stated that they had seen the complainant being made to sit in the respondent’s chamber for hours. Shri Ashok Kumar, PA (PW17) further stated that the complainant had once told him that after being called in his chamber the respondent would often comment on her beauty and clothes. c. Shri P.K. Rawat, UDC (PW5), Shri Ranjit Patoi, Assistant (PW7) and Shri Samir Nandi, SFA(G) (PW14) have all stated that they had seen the respondent pour himself a glass of water in his chamber and then go to the complaint’s room 5-6 times a day, and while drinking he would always be looking at the complainant. Shri Runjan Singh, peon (PW8) stated that earlier the respondent used to drink water in his own chamber, but once the complainant joined the offi ce, he started frequently visiting her room to drink water. d. Shri Rabi Ram Biswas, sweeper (PW12) stated that he had seen the respondent touching the shoulder of the complaint while teaching her to operate a laptop. Smt Pema Narzary, AFO(WI) (PW9) stated that the complainant had once told her how the respondent used to call her to his chamber on the pretext of teaching her to operate the laptop. Shri Rynjan Singh, peon (PW8) stated that on one occasion, the respondent shut the door of his Chamber while teaching the complainant and when all of a sudden he entered the respondent’s chamber the respondent got startled and moved away from the complainant and instructed him to knock before entering. e. Shri Rabi Ram Biswas, peon (PW12) stated that whenever, the complainant would leave the offi ce, the respondent would also leave soon thereafter in a hurry. The other staff presumed that this hurry was due to the respondent’s desire to drive the complainant home. Shri Rynjan Singh, peon (PW8) stated that he had seen the respondent off ering a lift to the complainant and that it was only the complainant to whom the respondent used to off er. Smt. Pema Narzary, AFO(WI) (PW9) stated to have heard from other offi ce staff that the respondent would off er lifts to the complainant in his offi cial 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 UNION OF INDIA AND OTHERS v. DILIP PAUL [J. B. PARDIWALA, J.] 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 jaan jaa rahi hai. Aap chinta mat karo main tumhara dimag taza karne ke iye bhej rahaa huu, vahaan se aane ke baad tum shrimati paul banogi”. h. Shri B.B. Sonar, chowkidar (PW4), Shri A. Deben Singh, AFO(M) (PW13) Shri Surjit Singh, Driver (PW2), Shri Rynjan Singh, peon (PW8) all stated to have heard from the other offi ce staff that the respondent would often visit the complainant’s residence uninvited and make proposal of marriage. Other witnesses namely; Shri Shyam Dass, Section Offi cer DACS (retd.) (PW19), Shri Subhash Prasad, UDC (PW18), Shri Ashok Gahlot, PA (PW17), Shir Jinen Singh, UDC (PW11), Shri Ranjit Patoi, Shri Samir Nandi, SFA(G) and Smt. Pema Nazary, AFO(WI) (PW9) all supported these allegations and said to have heard from the complainant sometime in 2009-10 that the respondent used to visit her house at odd hours and also used to misbehave with her by making sexual advances and asking the complainant to leave her husband and marry him. Shri Chandan Sarkar, SFA(M) (PW6), stated to have even heard a telephonic recording of the respondent making sexual remarks to the complainant. Shri P.K. Rawat, UDC (PW5) stated that on many occasions he had seen the respondent sitting at the complainant’s house. i. Shri S.C. Katoch, IG (PW20), stated that the complainant had once telephoned him making a complaint against the respondent for detaining her beyond working hours. He further stated that, he had then telephonically reprimanded the respondent after which the respondent assigned her no work. Shri Mast Ram Thakur, SFA(H) (PW3) and Shri Ranjit Patoi, Assitant (PW7) also corroborated the aforesaid and stated that the respondent withdrew all work from the complainant after she made a complaint against him.
95. The aforesaid would indicate that this is not a case of “no evidence”. Some evidence has come on record to indicate or rather substantiate the allegations of sexual harassment levelled by the complainant. What is most important to note at this stage is that the High Court has not gone into the suffi ciency of evidence as it was aware that the law does not permit it to go into the issue of suffi ciency 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 fi ndings 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 fi ndings 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 signifi cant time. Moreover, the said fi nding is fortifi ed 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 stated that he knew that Shri Dilip Paul was calling Smt. X on her mobile. xxx xxx xxx UNION OF INDIA AND OTHERS v. DILIP PAUL [J. B. PARDIWALA, J.] B. The Complaints Committee made every eff ort to substantiate the charge that Shri Dilip Paul often telephoned Smt. X, and that too at odd hours, but since call records for Shri Dilip Paul’s mobile phone were not available and Smt. X had a prepaid SIM card, it has failed to do so. xxx xxx xxx … The Complaints Committee also notes that the unavailability of corroboration from call records cannot be laid at Smt. X’s door because, had the enquiry into her complaint been timely and speedy, these records would have been available as on date.””
98. Before we close this judgement, we must deal with one submission very vociferously canvassed on behalf of the respondent as regards the multiple inquiries conducted by the appellant. It was submitted on behalf of the respondent that the normal rule is that there can be only one inquiry. It was also submitted that once the on-spot / preliminary inquiry revealed nothing incriminating against the delinquent, no further committee could have been constituted to inquire into the allegations once again.
99. It was further submitted that even the Frontier Complaints Committee came to the conclusion that the charges were not held to be proved.
100. In such circumstances referred to above, according to the learned counsel, the Central Complaints Committee could not have been constituted to probe further into the allegations. In this regard, reliance was placed on the decision of this Court in the case of Vijay Shankar Pandey v. Union of India reported in (2014) 10 SCC 589.
101. In the aforesaid context, we may only say that the aforesaid point was raised even before the High Court and the same came to be negatived holding as under: “22. The report dated 13.12.2011 was submitted pursuant to conducting of an on-the-spot enquiry. On-the-spot enquiry, by the very nature of it, is summary in nature. Such enquiry cannot be equated with a disciplinary enquiry. It will be relevant to note that before the report of the on-the- spot enquiry was submitted, the competent authority had constituted FLCC, which had also commenced its proceedings. In that context, even if in such an on-the-spot enquiry, no allegation was found to have been established, same would not have any material bearing in the facts of the instant case. It is not in dispute that the petitioner 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 offi cer 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 diff erent 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 signifi cance 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 committee. It was in this background the CCC had come into the picture. Though earlier the FLCC had conducted enquiry, we fi nd that the CCC can also enquire into any matter of sexual abuse in the organization which necessarily includes the frontier also and, therefore, it cannot be said that the CCC could not have exercised authority in the instant case. The decision in K. D. Pandey (supra), wherein it was held that when specifi c fi ndings have been given in respect of charges by the inquiry offi cer, the matter could not have been remitted to the inquiring authority for further inquiry as it would have resulted in a second inquiry and not a further inquiry on the same set of charges and the materials on record, will not be applicable in the facts and circumstances of the case. In K. R. Deb (supra), the Supreme Court observed in the context of the rules in question that though it may be possible in certain circumstances for the disciplinary authority to record further evidence, because of some serious defects that had crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, no power is vested in the disciplinary authority to completely set aside previous inquiry on the ground that the report does not appeal to UNION OF INDIA AND OTHERS v. DILIP PAUL [J. B. PARDIWALA, J.] the disciplinary authority. It was also observed that disciplinary authority in terms of the rules had enough power to reconsider the evidence and come to its own conclusion.In Vijay Shankar Pandey (supra), the Supreme Court followed K.R. Deb (supra) and reiterated the principle laid down therein. The said decisions are also not applicable to the facts of the present case. We also fi nd no merit in the contention urged on behalf of the petitioner that complaint dated 30.08.2011 having not been submitted to the Complaints Committee, the same could not have been acted upon. Materials on record do not indicate that at the time of submission of the complaint dated 30.08.2011, there was any specifi c Complaints Committee in place and on the contrary, it appears that only after the complaint was received by the authority, FLCC was constituted to go into the complaint. Even otherwise, the Standing Order No.1/2006 itself visualizes submission of complaint directly to the Frontier IG/IF under certain circumstances.” (Emphasis supplied) 102. We are in complete agreement with the aforesaid fi ndings recorded by the High Court on the issue of multiple inquiries. F. CONCLUSION 103. For all the forgoing reasons, we have reached to the conclusion that the appeal deserves to be allowed. The High Court committed an egregious error in passing the impugned judgment and order. 104. In the result, the appeal succeeds and is hereby allowed. The impugned judgment and order passed by the High Court dated 15.05.2019 is hereby set- aside. 105. The order of penalty imposed by the Disciplinary Authority is hereby restored. However, we clarify that the appellant shall not eff ect any recovery of the amount already paid so far to the respondent. 106. Pending application(s) if any shall stand disposed of. Headnotes prepared by: Appeal allowed. Bibhuti Bhushan Bose Assisted by: Shubhanshu Das, LCRA