Gauhati High Court
Smti Sarita Das vs The Union Of India & Ors on 3 April, 2014
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM : NAGALAND : MIZORAM AND
ARUNACHAL PRADESH)
WP(C) No. 6403 OF 2011
SMT. SARITA DAS,
NO. 004341215 EX-LADY CONSTABLE,
C/O. SRI NERAN HAZARIKA,
BAPUJI PATH WARD NO. 4 NAZIRA,
P.O. & P.S. - NAZIRA,
DIST - SIVASAGAR (ASSAM) - 785685.
............ Petitioner
-Versus-
1. THE UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF HOME AFFAIRS, NORTH BLOCK,
NEW DELHI - 110001.
2. THE DIRECTOR GENERAL,
CENTRAL INDUSTRIAL SECURITY FORCE/NES,
FHQ, CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110003.
3. THE INSPECTOR GENERAL,
CENTRAL INDUSTRIAL SECURITY FORCE/NES,
PREMISES NO. 553, EAST KOLKATA TOWNSHIP,
KASBA, KOLKATA - 107.
4. THE DEPUTY INSPECTOR GENERAL,
CENTRAL INDUSTRIAL SECURITY FORCE,
(MINISTRY OF HOME AFFAIRS),
CISF UNIT ONGC, NAZIRA,
SIVASAGAR - 785685.
5. THE COMMANDANT,
CENTRAL INDUSTRIAL SECURITY FORCE,
(MINISTRY OF HOME AFFAIRS)
CISF UNIT ONGC, NAZIRA,
SIVASAGAR - 785685. .......... Respondents
For the Petitioner : Dr. JL Sarkar, Advocate,
Mr. M Chanda, Advocate,
Mr. S Choudhury, Advocate,
Ms. U Dutta, Advocate.
For the Respondents : Mr. D Baruah, Central Govt. Counsel.
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
Dates of Hearing : 25.03.2014, 27.03.2014 &
03.04.2014.
Date of Judgment : 03.04.2014.
Judgment & Order (Oral)
This case was heard on 27.03.2014, and today is fixed for delivery of judgment.
02. By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 29.10.2010, passed by the Commandant, Central Industrial Security Force (CISF), ONGC, Nazira, imposing the penalty of dismissal from service on the petitioner as well as order dated 24.01.2011, passed by the appellate authority, dismissing the appeal filed by the petitioner against the order of penalty and the order dated 26.07.2011, passed by the Inspector General, CISF, NES, dismissing the revision petition filed by the petitioner. Petitioner also seeks other reliefs such as quashing of a portion of the report of the Complaint Committee dated 07.11.2007 on a sexual harassment complaint lodged by the petitioner against her superior officer and the charge memo dated 06.01.2010.
03. Facts of the case may be briefly noted.
04. At the relevant point of time, petitioner was working as lady Constable in the CISF Unit, Lilabari Airport, North Lakhimpur (Assam). She lodged a complaint dated 28.09.2006 before the Director General, CISF alleging that on the night of 22.09.2006, Sri CL Ganjir, Assistant Commandant WPC No. 6403/2011 Page 2 of 33 of the CISF Unit, Lilabari Airport entered into her quarter and attempted to rape her.
05. On receipt of the aforesaid complaint, a Complaint Committee was constituted by the CISF Headquarters on 27.10.2006 to enquire into the complaint of sexual harassment submitted by the petitioner against Sri CL Ganjir. Ms. Jayati Ghosh, Commandant, CISF Group Headquarters, Kolkata, was the Chairperson of the Complaint Committee.
06. It appears that following the complaint made by the petitioner, Sri CL Ganjir was placed under suspension vide order dated 24.09.2006.
07. The Complaint Committee enquired into the complaint of the petitioner. Sri CL Ganjir denied the allegation made against him by the complainant and alleged that he was trapped in a false and fabricated case in a pre-planned manner by a group of CISF personnel of that unit who were against him. The Complaint Committee thereafter examined witnesses produced by both the sides.
08. On conclusion of the inquiry, the Complaint Committee submitted its report dated 07.11.2007 concluding that a prima facie case of an attempt to molest the petitioner partially exists against Sri CL Ganjir.
09. The disciplinary authority of Sri CL Ganjir vide letter dated 04.12.2007 furnished him a copy of the report of the Complaint Committee to enable him to submit his representation, if any, thereon. Sri CL Ganjir, thereafter submitted his representation dated 24.12.2007. The disciplinary authority considered the report of the Complaint Committee, representation WPC No. 6403/2011 Page 3 of 33 of Sri Ganjir and other materials on record. It, thereafter came to the conclusion that ends of justice would be met, if the penalty of compulsory retirement was imposed on Sri Ganjir. Union Public Service Commission (UPSC) was consulted, and after considering the advice tendered by the UPSC, order dated 09.03.2009 was passed by the disciplinary authority in the name of the President of India, concluding that Sri CL Ganjir be awarded the penalty of compulsory retirement, which was accordingly ordered.
10. According to the petitioner, after about 9 months of the passing of the aforesaid order, Sri CL Ganjir submitted a representation dated 02.12.2009 before the Deputy Inspector General, CISF Unit, ONGC, Nazira, alleging that he was trapped in a false case of attempt to outrage the modesty of the petitioner and requested the authority to initiate disciplinary action against the petitioner. At that point of time, petitioner was posted at Nazira Sector of CISF Unit, ONGC, Nazira.
11. Commandant, CISF Unit, ONGC, Nazira issued charge memo dated 06.01.2010, proposing to hold an inquiry against the petitioner under Rule 36 of the CISF Rules, 2001. Two charges were framed against the petitioner, which will be adverted to in detail in the later stage of the judgment. At this stage, suffice it to say, as per charge No. I, petitioner while posted at CISF Unit of Lilabari Airport, had levelled false allegation against her Supervisory Officer, Sri CL Ganjir, Assistant Commandant for an extremely heinous crime like attempt to rape, which amounted to gross misconduct, indiscipline and unbecoming of a disciplined member of the Force. As per charge No. II, it was alleged that petitioner had hatched a WPC No. 6403/2011 Page 4 of 33 conspiracy against Sri CL Ganjir in connivance with some other CISF personnel and trapped him at her quarter on the false allegation of an extremely heinous crime like attempt to rape, thereby committing gross misconduct, indiscipline and unbecoming of a disciplined member of the Force. The charge memo was accompanied by a statement of allegation, list of documents and list of witnesses.
12. Petitioner submitted her show case reply dated 04.02.2010 denying the allegations levelled against her. She stated that allegation of sexual harassment made by her against Sri Ganjir was enquired into on her complaint, whereafter Sri Ganjir was compulsorily retired from service after he was found guilty. She, therefore, requested the authority to accept her reply and to drop the charges.
13. The disciplinary authority did not accept the reply submitted by the petitioner. It was decided to conduct an inquiry. Sri RK Tyagi, Deputy Commandant was appointed as the Inquiry Officer on 06.02.2010. Sri Rakesh Kapoor, Assistant Commandant, CISF Unit, ONGC was appointed as Presenting Officer on the same date. During the inquiry, documents were exhibited and witnesses were examined. Thereafter, the Inquiry Officer submitted his report dated 21.09.2010 holding that both the charges against the petitioner were totally proved.
14. Copy of the inquiry report was furnished to the petitioner by the disciplinary authority vide forwarding letter dated 23.09.2010. Petitioner in her representation dated 16.10.2010 requested the disciplinary authority not to act on the inquiry report as according to her, the inquiry was conducted in WPC No. 6403/2011 Page 5 of 33 gross violation of the procedural norms which resulted in wholly erroneous finding.
15. The disciplinary authority i.e., Commandant, CISF, ONGC, Nazira passed the impugned order dated 29.10.2010 holding that from the evidence recorded during the inquiry, the charges against the petitioner were found established. Accordingly, he held the petitioner guilty of the charges levelled against her and in exercise of the power conferred upon him under the CISF Act, 2001 and the Rules framed thereunder, he imposed the penalty of dismissal from service on the petitioner with immediate effect.
16. Petitioner filed an appeal against the order of penalty before the Deputy Inspector General, CISF Unit, Nazira (appellate authority), which was, however, rejected by the appellate authority vide order dated 24.01.2011.
17. Revision petition filed by the petitioner against the order of penalty as upheld by the appellate authority was dismissed by the Inspector General, CISF, NES, Kolkata by order dated 26.07.2011.
18. Aggrieved, petitioner has filed the present writ petition seeking the reliefs as indicated above.
19. Contention of the petitioner is that in the face of the finding recorded by the Complaint Committee, the disciplinary authority could not have framed the two charges against the petitioner. There was delay in the issuance of the charge memo which reflects lack of bonafides. Disciplinary authority could not have acted on the complaint of CL Ganjir, who was already imposed penalty of compulsory retirement on the ground of causing WPC No. 6403/2011 Page 6 of 33 sexual harassment to the petitioner. Inquiry proceeding was also vitiated due to various procedural irregularities, including non-supply of relevant documents to the petitioner and by placing reliance on documents such as mobile call records, which were not proved in the inquiry. Both appellate authority and revisional authority overlooked the fact that departmental action against the petitioner was wholly untenable in the facts and circumstances of the case.
20. A common affidavit has been filed by the Commandant, CISF Unit, ONGC, Nazira on behalf of all the respondents. It is stated that on the charges framed against the petitioner, a domestic inquiry was held, where all procedural safeguards were provided to the petitioner, whereafter the Inquiry Officer found the charges proved against the petitioner. Inquiry report was furnished to the petitioner and she submitted her representation. Disciplinary authority considered the representation of the petitioner and after going through the evidence and other materials on record, found the petitioner guilty of the charges levelled against her and awarded her the penalty of dismissal from service. When the petitioner filed appeal against the order of penalty, the appellate authority considered her appeal and after due consideration, was satisfied that the disciplinary proceeding against the petitioner was initiated as per the CISF Act and the Rules and the inquiry was conducted as per the laid down procedure. The charges were found proved after holding a full fledged inquiry and the punishment awarded to the petitioner was commensurate with the gravity of the charges. Hence, her appeal was rejected. Her revision petition was also rejected by the revisional authority after due consideration. It is stated that police complaint lodged by WPC No. 6403/2011 Page 7 of 33 the petitioner against Sri CL Ganjir, which was registered as North Lakhimpur PS Case No. 645/2006, was closed due to lack of evidence. Even after reinvestigation, the complaint could not be proved and hence the police submitted final report. Thus allegation made by the petitioner was totally false and imaginary with a view to take revenge against Sri CL Ganjir in connivance with others. It is stated that Sri CL Ganjir was a strict disciplinarian which did not go down well with some of the CISF personnel for which conspiracy was hatched against him. Complaint Committee in its report, though prima facie found an attempt by Sri CL Ganjir to molest the petitioner, however held that four CISF personnel, namely, Satish Kumar, DK Gautam, RK Dev and Hemlata Gautam had hatched conspiracy against Sri Ganjir. Satish Kumar had manhandled Sri Ganjir, thereby humiliating and disgracing him. Though Sri CL Ganjir made a complaint to the DIG, CISF, ONGC Unit, Nazira, departmental action against the petitioner was initiated on the basis of the Complaint Committee report dated 07.11.2007 and not on the complaint of Sri CL Ganjir. There is no place in a disciplined force like CISF for such conspirators. There is no evidence that Sri Ganjir had ever passed any sexual remarks or misbehaved with the petitioner. He also never harassed her. It is restated that action against the petitioner was initiated not on receipt of the complaint of Sri CL Ganjir, but on receipt of the report of the Complaint Committee, where it was found that petitioner had hatched a conspiracy against her Unit Commandant (Sri CL Ganjir) in connivance with other conspirators. The additional documents/witnesses called for by the petitioner were found irrelevant to the charges. Hence her request was not acceded to. Finally stand taken is that petitioner was a party to trap the Unit WPC No. 6403/2011 Page 8 of 33 Commandant with the sole object to take revenge on him. Her case, therefore, does not deserve any sympathy. Respondents, thus, seek dismissal of the writ petition with costs.
21. Petitioner has filed reply-affidavit. Petitioner has stated that Complaint Committee's report was based on probabilities and assumptions and could not be taken as conclusive of the factum of conspiracy. Disciplinary proceeding drawn up against her is mala fide and was initiated with a prejudiced and pre-determined mind. The evidence tendered during the inquiry cannot be said to have been proved in any manner to arrive at a finding that a conspiracy was hatched against Sri CL Ganjir and that petitioner was a part of the conspiracy. The Inquiry Officer did not at all discuss the admitted fact that Sri CL Ganjir went to the quarter of the petitioner in the intervening night of 22.09.2006-23.09.2006 knowing fully well that her husband was out of station. Petitioner has reiterated her contention made in the writ petition and states that the entire proceeding was conducted in a biased manner. It is further stated that being dissatisfied with the final report submitted by the police, petitioner had lodged a complaint case in the North Lakhimpur Court, following which a criminal case (CR Case No.93/2008) against Sri CL Ganjir was registered and is pending before the Court of the Chief Judicial Magistrate, Lakhimpur. All allegations made in the counter- affidavit, including that of hatching conspiracy, have been denied by the petitioner. Respondents did not take any action against the petitioner till CL Ganjir made the complaint. There is uncanny resemblance of the contents of the complaint of Sri CL Ganjir dated 02.12.2009 and the charge memo dated WPC No. 6403/2011 Page 9 of 33 06.01.2010 besides being proximate in point of time. She, therefore, submits that the impugned orders be set aside and quashed.
22. Heard Dr. JL Sarkar, learned counsel for the petitioner and Mr. D Baruah, learned Central Government Counsel, who has produced the voluminous record.
23. Dr. JL Sarkar, learned counsel for the petitioner submits that the disciplinary authority was not justified in initiating departmental proceeding against the petitioner and, thereafter dismissing her from service. The departmental proceeding could not have been drawn up against the petitioner on the basis of the report submitted by the Complaint Committee, which was constituted to look into the allegation of sexual harassment made by the petitioner against the Assistant Commandant. When the Complaint Committee had given the finding that a prima facie case of attempt to molest the petitioner partially exists against the Assistant Commandant, which was acted upon by the disciplinary authority of the Assistant Commandant by imposing the penalty of compulsory retirement, the petitioner could not have been charged with making false allegation of attempt to rape her by the Assistant Commandant. Moreover, he submits that when the Complaint Committee had observed that the petitioner because of being fed up of the unwarranted sexual remarks of the Assistant Commandant at work place and finding no other option probably she became a party to the conspiracy hatched by Satish Kumar, DK Gautam, RK Dev and Hemlata Gautam against the Assistant Commandant, the disciplinary authority could not have charged the petitioner of hatching a conspiracy against the Assistant Commandant in WPC No. 6403/2011 Page 10 of 33 connivance with some other CISF personnel. He submits that petitioner was a victim of sexual harassment and, by the impugned action, she has herself been victimized for raising her voice against her superior officer. According to the learned counsel, it was a retributive action of her superior, which is vitiated by all pervasive unreasonableness. The finding recorded by the Inquiry Officer and the order of penalty as affirmed by the appellate authority and by the revisional authority amounts to nullifying the report submitted by the Complaint Committee on the allegation of sexual harassment of the petitioner by her superior officer i.e., by the Assistant Commandant. He further submits that it is a case of no evidence. The four CISF personnel who were accused of being co-conspirators against the Assistant Commandant were not even examined as witnesses. Various documents sought for by the petitioner in support of her defence were not furnished to her on the ground that those documents were irrelevant to the charges. He, therefore, submits that this is a fit case for setting at nought the penalty imposed on the petitioner as grave injustice has been caused to her. She should, therefore, be directed to be reinstated in service with all consequential benefits, including full back wages, he submits.
24. Mr. D Baruah learned Central Government Counsel appearing for the respondents on the other hand submits that the disciplinary authority was satisfied that there was gross breach of discipline by the petitioner by making very serious allegations like attempt to commit rape on her by her superior officer, which were false as would be clear from the report of the Complaint Committee. He submits that Sri CL Ganjir, the Assistant Commandant was imposed penalty of compulsory retirement from service as he had acted in a WPC No. 6403/2011 Page 11 of 33 manner unbecoming of a senior officer and not because it was proved that he had attempted rape on the petitioner. On the contrary, the Complaint Committee held that a conspiracy was hatched by four CISF personnel against the Assistant Commandant and the petitioner also became a party to the conspiracy. Therefore, on the basis of the report submitted by the Complaint Committee, charges of gross misconduct, indiscipline and acting in a manner unbecoming of a disciplined member of the Force were framed against the petitioner The procedure laid down for holding departmental proceeding were followed. Since the reply of the petitioner was found to be not satisfactory, the disciplinary authority decided to hold an inquiry. During the inquiry also, adequate and reasonable opportunities were granted to the petitioner and after holding of the regular inquiry, the charges framed against the petitioner were held to be proved. The disciplinary authority after giving an opportunity to the petitioner to have her say on the report of the Inquiry Officer and on due consideration of all relevant factors, agreed with the finding of the Inquiry Officer. Once the charges were proved, which were very grave and serious, no penalty other than the penalty of dismissal from service could have been imposed on the petitioner. Accordingly, the penalty imposed is quite commensurate with the gravity of the misconduct. He submits that even at the cost of repetition, he would assert that all procedural safeguards were provided to the petitioner during the inquiry as well as during the departmental proceeding. Petitioner had availed her remedy as provided under the CISF Act by filing appeal and revision which were also dismissed by the appellate as well as by the revisional authority. Therefore, this Court may not interfere with the order of penalty which has been WPC No. 6403/2011 Page 12 of 33 approved by the appellate as well as by the revisional authority. Contending that there is no merit in the writ petition, learned Central Govt. Counsel seeks dismissal of the writ petition. Mr. Baruah submits that the four conspirators have already been punished by their respective disciplinary authorities by initiating disciplinary proceeding. Satish Kumar, DK Gautam and Hemlata Gautam have been dismissed from service, whereas RK Dev has been imposed the penalty of reduction of pay by four stages for 5 years with cumulative effect.
25. In his brief reply, Dr. Sarkar reiterated the submissions made by him and additionally submitted that the mobile call records of the petitioner and the other four CISF personnel, namely Satish Kumar, DK Gautam, RK Dev and Hemlata Gautam, were heavily relied upon in the enquiry to show that all of them were in constant touch with each other both prior to and post apprehending of Sri GL Ganjir, the Assistant Commandant in the quarter of the petitioner to prove the allegation of conspiracy were never exhibited and proved in the inquiry. Those documents thus could not have been the basis of any conclusion that a conspiracy was hatched against the Assistant Commandant and that the petitioner was a party to that conspiracy. He submits that while standard of proof required in a departmental proceeding may not be of the standard required in a criminal proceeding or in a civil proceeding, nonetheless, a departmental inquiry being of a quasi judicial nature, documentary evidence relied upon in such enquiry must be proved. Mere production of the documents would not be enough. Witnesses must be examined to prove the documents even in a departmental inquiry. In this regard, Dr. Sarkar refers to and relies upon a decision of the Apex Court in WPC No. 6403/2011 Page 13 of 33 the case of ROOP SINGH NEGI VS. PUNJAB NATIONAL BANK & ORS., reported in (2009) 2 SCC 570, contending that the materials brought on record pointing out the guilt are required to be proved. Before concluding his submissions, Dr. Sarkar finally submits that the present is a classic case of a victim of sexual harassment being victimized herself and that the respondents are proceeding on a well scripted roadmap for eventual rehabilitation of the sexual offender.
26. Submissions made by learned counsel for the parties have been considered. I have also perused the materials on record, including the record produced by Mr. Baruah, learned Central Govt. Counsel.
27. Since the genesis of the disciplinary action taken against the petitioner is the complaint lodged by her against her superior officer, Sri CL Ganjir, the Assistant Commandant, before the Director General, CISF, alleging sexual harassment, the same needs to be adverted to at the very outset. This complaint is dated 28.09.2006. In her complaint, petitioner stated that she was a lady Constable posted at CISF Unit, Lilabari Airport in the district of Lakhimpur, Assam. On the night of 22.09.2006, when she was sleeping with her two and half year old child and eight years old cousin, at about 01.00 a.m., her Unit Commandant, Sri CL Ganjir entered into her house and attempted to rape her. She stated that she could save herself with great difficulty, as a result of which her bangles were broken. When she came out of her quarter and started shouting for help, her neighbours came and they saw Sri CL Ganjir inside the quarter. Staff of CISF and Airport Authority also came to her house and saw Sri CL Ganjir at her quarter. Her husband, who WPC No. 6403/2011 Page 14 of 33 was also a Constable in the CISF, was not at home having gone to Guwahati on official duty. She stated that she had lodged FIR against Sri Ganjir and the police had registered a case. She alleged that the DIG, Sri SL Prasad had come to the Unit and during inquiry, he threatened her and tried to change her statement. She further alleged that the DIG was trying to prove her allegation as false. She requested the Director General to conduct a fresh inquiry against Sri CL Ganjir for harassing her stating that since the offender was a Commandant attempt was being made to save him and being a Constable, her witnesses were being harassed.
28. This was the sexual harassment complaint of the petitioner.
29. Before referring to the report of the Complaint Committee which was constituted by the office of the Director General, CISF to enquire into the complaint of sexual harassment made by the petitioner, the law relating to sexual harassment of women at workplace may be briefly noticed.
30. The Hon'ble Supreme Court was confronted with the issue of sexual harassment of working women in workplace and for prevention of such harassment through judicial process to fill up the vacuum in existing legislation in VISHAKA & ORS. VS. STATE OF RAJASTHAN & ORS., reported in (1997) 6 SCC 241. The Hon'ble Supreme Court examined the issue of sexual harassment of working women in workplace in the light of Articles 14, 15, 19 and 21 of the Constitution of India. After examining related constitutional provisions and various international conventions and norms having relevance in the field, the Hon'ble Supreme Court formulated guidelines in this regard in the absence of enacted law to provide for the effective enforcement of basic WPC No. 6403/2011 Page 15 of 33 human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces until enactment of a legislation for the purpose. The Hon'ble Supreme Court held that gender equality includes protection from sexual harassment and right to work with dignity, which is universally recognized as basic human right. It was held that it would be the duty of the employer or other responsible persons in work places to prevent or to deter the commission of acts of sexual harassment and to provide the procedure for resolution, settlement or prosecution of acts of sexual harassment. Sexual harassment was defined to include such unwelcome sexually determined behaviour whether directly or by implication, such as, physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography and any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Employers or persons in charge of work places whether in the public or private sector were required to take appropriate steps to prevent sexual harassment, including by incorporating in the rules/regulations relating to conduct and discipline prohibiting sexual harassment and providing for appropriate penalties in such rules against the offender. Where such conduct amounts to a specific offence under the criminal law, the employer should initiate appropriate action in accordance with law by making a complaint with the appropriate authority. The Supreme Court emphasized in particular that the employer should ensure that the victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims should have the option to seek their own transfer or transfer of the perpetrator. Where such conduct amounts to misconduct in employment WPC No. 6403/2011 Page 16 of 33 as per the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. Irrespective of whether such conduct constitutes an offence under the law or a breach of service rules, an appropriate complaint mechanism should be created in the employer's organization for looking into the complaints made by the victims. Complaints Committee should be constituted to look into the complaints which should be headed by women and not less than half of its members should be women. The Complaint Committee is required to maintain confidentiality. The Hon'ble Supreme Court directed that the guidelines and norms laid down in VISHAKA & ORS. (Supra), would be binding and enforceable in law till the enactment of suitable legislation.
31. The VISHAKA judgment was delivered on 13.08.1997. While statutory law was still not in place, instances of sexual harassment at workplaces continued to trouble the judicial conscience. The Hon'ble Supreme Court, in the case of MEDHA KOTWAL LELE & ORS. VS. UNION OF INDIA & ORS., reported in (2013) 1 SCC 297, noted that women continue to be victims of sexual harassment at workplaces. The guidelines in VISHAKA & ORS. (Supra), are followed in breach in substance and spirit by the state functionaries and all other concerned. It was observed that women workers are subjected to harassment through legal and extra legal methods and they are made to suffer insult and indignity. The Hon'ble Supreme Court was concerned with the lack of effective implementation of VISHAKA guidelines. In the course of the proceedings, the Hon'ble Supreme Court directed that the Complaint Committee, as envisaged in VISHAKA & ORS. (Supra), would be deemed to be an inquiry authority for the purpose of Central Civil Services WPC No. 6403/2011 Page 17 of 33 (Conduct) Rules, 1964 and the report of the Complaint Committee should be deemed to be an inquiry report under the said rules. Thereafter, the disciplinary authority should act on the report in accordance with the rules. Reflecting on the poor implementation of the VISHAKA guidelines, the Hon'ble Supreme Court ruled that the implementation of the guidelines in VISHAKA & ORS. (Supra), is to be not only in form, but in substance and spirit so as to make available safe and secured environment to women at work places in every aspect and thereby enabling the working women to work with dignity, decency and due respect. Declaring that the guidelines in VISHAKA & ORS. (Supra) should not remain symbolic, the Hon'ble Apex Court directed that necessary amendments be made in the conduct rules by providing that report of the Complaint Committee should be deemed to be an inquiry report in a disciplinary action under the conduct rules. In other words, the disciplinary authority should treat the report of the Complaint Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. It was clarified that the findings and report of the Complaint Committee should not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action, but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent. It was further directed that provisions should be made that harassment and intimidation of witnesses and the complainants be met with severe disciplinary action.
32. Sixteen years after the judgment in VISHAKA & ORS. (Supra), the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has been enacted by the Parliament. A detailed WPC No. 6403/2011 Page 18 of 33 reference to the Act is considered not necessary, since the incident in the present case had taken place prior to enactment of the Act.
33. Having made a brief survey of the law relating to sexual harassment of women in workplace, the inquiry report submitted by the Complaint Committee may now be looked into. The Complaint Committee was constituted specifically to enquire into the complaint of sexual harassment lodged by the petitioner against her superior, Sri CL Ganjir, the Assistant Commandant. As held in VISHAKA (Supra) & MEDHA KOTWAL LELE (Supra), the mandate of the Complaint Committee was to enquire into the specific allegation of sexual harassment made by the petitioner against Sri Ganjir. It was to be treated as an inquiry proceeding against the perpetrator of sexual harassment and the report/findings of the Complaint Committee was to be treated as inquiry report for disciplinary action against the offender under the CISF Act and the Rules. The inquiry report runs into 80 pages. 15 witnesses from the prosecution side were examined, including the petitioner. FIR lodged by the petitioner and medical examination report were also produced by the prosecution. On behalf of the defence, as many as 10 witnesses were produced, who were examined. The charged official also submitted his defence statement. The defence side exhibited as many as 52 documents. On completion of the inquiry, the Complaint Committee submitted its report. The Complaint Committee formulated as many as 17 points for consideration and analysis. After discussing and analyzing all the points, the Complaint Committee noted the following as established facts and conclusion:-
WPC No. 6403/2011 Page 19 of 33
"XI. ESTABLISHED FACTS/CONCLUSION
1. AC Sri CL Ganjir had called up several times L/Const. Sarita Das on Mobile phone No. 9954395436 on 22.09.2006 of Const. Subhash Chandra which was then held by Lady Const. Sarita Das, though the first call was made by Lady Const. Sarita Das.
2. SI/Exe. RK Dev had written on a slip the Mobile No. 9954395436 and the same was given to Lady Constable Sarita Das which was handed over to the AC by her in his office in the morning of 22.09.2006.
3. SI/Exe. Satish Kumar reached the spot of the incident prior to the neighbor (adjacent quarter) Sri C Kalita.
4. SI/Exe. Satish Kumar manhandled the AC on the spot of the incident.
5. Lady SI/Exe Hemlata Gautam instigated Lady Const. Sarita Das against the AC Shri CL Ganjir. This is substantiated in the statement of HC/GD K. Oran (PW-5), Insp./Exe SK Tripathy (DW-1) and HC/GD P.C. Swain (DW-
2).
6. The injury caused to Lady Const. Sarita Das was a deliberate injury caused to her own self for creating evidences.
7. Const. PC Das was sent to Guwahati on temporary duty only on the request of the husband and wife i.e. Const. PC Das and Lady Const. Sarita Das.
8. SI/Exe. Satish Kumar announced in the roll Call on 25.09.2006 that nobody would meet the AC without his approval.
9. Since the AC went to the quarter alone, without informing the other members of the Unit about the reason of his visit in the midnight knowing very well that her husband was not there, raises the element of doubt with regard to his WPC No. 6403/2011 Page 20 of 33 intention. Nonetheless he visited her quarter probably only after making several telephone calls to the Lady Const. Sarita Das and also receiving the first call from her.
10. The conspiracy against the AC by the SIs (SI/Exe Satish Kumar, SI/Exe DK Goutam, SI/Exe RK Dev and Lady SI/Exe Hemlata Goutam) is proved on the basis of the findings mentioned in the point 1 to 5."
34. After recording the above, the following findings were arrived at by the Complaint Committee:-
"XII. FINDINGS:
The Board is of the opinion that Shri CL Ganjir, AC visited the quarter of the Lady Const. Sarita Das only after talking to her several times prior to his visit which is evident from the telephone call records. His visit alone, to her place in the midnight i.e. at 0055/0100 hrs on 22/23.09.2006 without informing anybody of the Unit raises an element of doubt about his intention.
The Board has no doubt that SIs (SI/Exe Satish Kumar, SI/Exe DK Goutam, SI/Exe RK Dev and Lady SI/Exe Hemlata Goutam) hatched a conspiracy against the Asstt. Commandant of the Unit Shri CL Ganjir which has been conclusively proved. They trapped him and SI/Exe Satish Kumar manhandled him thereby not only humiliating and disgracing the AC/Unit Commander but the entire Force.
The question, as to why the Lady Constable also became a party to the conspiracy is important. Probably she became fed up due to the unwarranted remarks of the AC at work place and finding no other option she became a party in the well-laid out conspiracy by the SOs (SI/Exe Satish Kumar, SI/Exe DK Goutam, SI/Exe RK Dev and Lady SI/Exe Hemlata Goutam) of the Unit. There is no direct evidences/witnesses with regard to sexual harassment of WPC No. 6403/2011 Page 21 of 33 the Lady Const. Sarita Das at work place by the AC Shri CL Ganjir. This fact has only been substantiated by the husband of the Lady Const., Const. PC Das in his statement, apart from the telephone calls made to her by the AC on various occasions which are indicative of some willful advances/harassment of the Lady Const. Sarita Das by the AC of the Unit Sri CL Ganjir. The added fact was to put the Lady Const. Sarita Das on duty at the places which were not of her choice must have further pushed the Lady Constable to connive with the above 04 SOs and teach the AC a lesson. Since the lady Const. Sarita Das has reported in the Unit only on 01.07.06 i.e. she had completed only approx two months in the Unit, the SOs tried to make her bait considering her as a disgruntled person/member due to AC's attitude towards her. Therefore, she also became a party to the conspiracy and she was used as a bait by the SOs to fix up the AC of the Unit.
In view of the foregoing discussion, it has been concluded that the prima-facie case of an attempt to molest Lady Const. Sarita Das partially exists against Shri CL Ganjir, Asstt. Commandant (Under Suspension)."
35. The Complaint Committee comprised of four members. Though it was headed by a lady member, she was also a Commandant in the CISF. Two other members were Deputy Commandants of CISF. Thus out of the four members comprising the Complaint Committee, three were CISF Commandant and Deputy Commandant. The fourth member was from an NGO.
36. From a perusal of the report of the Complaint Committee, the tone and tenor of the same is unmistakable. It is clear that the entire attempt or approach was somehow to dilute the grave charge against the Assistant WPC No. 6403/2011 Page 22 of 33 Commandant. It is quite evident that the officers had closed ranks and had laid the ground work for future course of action by the Assistant Commandant for his eventual rehabilitation. It was, as if the Complaint Committee had embarked upon a fault finding exercise trying to find fault with the complaint and the complainant and to portray the Assistant Commandant as an innocent victim who had fallen into the trap laid down by four conspirators, of which the petitioner also became a part. Clearly, the Complaint Committee had exceeded its mandate which was to examine the complaint of sexual harassment made by the petitioner against the Assistant Commandant.
37. Notwithstanding the above, the following undisputed facts had emerged from the report of the Complaint Committee: -
i) The Assistant Commandant went to the quarter of the petitioner alone in the intervening night of 22/23.09.2006 at about 0055 hours without informing anyone else and knowing fully well that her husband was not at home. (The Complaint Committee sought to explain this by observing that he had visited her quarter probably after making several telephone calls to the petitioner and also receiving the first call from her. This remark or the explanation by the Complaint Committee was totally uncalled for and unwarranted).
ii) Sri CL Ganjir had made unnecessary telephone calls of longer duration to the petitioner prior to the incident.
iii) Assistant Commandant, CL Ganjir had telephonic conversation with the petitioner for about 30/40 minutes before the incident.
iv) The Complaint Committee noted that it was clear that Assistant Commandant CL Ganjir was having some WPC No. 6403/2011 Page 23 of 33 inclination towards the petitioner and he visited her quarter on that night on the pretext of seeing her child who was ill.
v) The Complaint Committee further came to the conclusion that Assistant Commandant, CL Ganjir used to pass unwanted remarks against the petitioner which come within the purview of sexual harassment at work place. Petitioner had confided about this to her husband PC Das and Lady SI/Exe Hemlata Goutam.
vi) The Complaint Committee had accepted that Assistant Commandant CL Ganjir used to pas unwarranted remarks against the petitioner. Before visiting her quarter, the Assistant Commandant had made unnecessary phone calls of longer duration to her and, thereafter he came to her quarter at about 01.00 a.m. in the night. He was seen by all people who had gathered in and in front of her quarter following the incident.
38. Thus it was a clear case of sexual harassment. But having found so, the Complaint Committee took up cudgles on behalf of the perpetrator of sexual harassment by recording a finding that four CISF personnel, namely, Satish Kumar, DK Gautam, RK Dev and Hemlata Gautam had hatched a conspiracy against the Assistant Commandant and that the petitioner also became a party to the conspiracy and allowed herself to be used as a bait probably because she was fed up of the unwarranted remarks of the Assistant Commandant. Inspite of that, because of the glaring facts which were staring at the face, the Complaint Committee, it appears, had no other option, but to record a finding that a prima-facie case of an attempt to molest the petitioner partially exists against Sri CL Ganjir, the Assistant Commandant.
WPC No. 6403/2011 Page 24 of 33
39. The Complaint Committee was constituted to look into the complaint of sexual harassment made by the petitioner against the Assistant Commandant and not to unearth any conspiracy against the Assistant Commandant. As already noticed above, it becomes clearly evident that the report of the Complaint Committee laid the ground work for future action against the petitioner. Nevertheless, even in this report, it was the view of the Complaint Committee that petitioner became a party to the conspiracy hatched by four CISF personnel probably because she became fed up of the unwarranted sexual remarks made by the Assistant Commandant at work place.
40. As already noted in the earlier part of this judgment, based on the report of the Complaint Committee, the disciplinary authority of Sri CL Ganjir initiated disciplinary action against him and after consulting the UPSC, he was awarded the penalty of compulsory retirement from service. This order was passed on 09.03.2009.
41. After about three and half years of the incident and 9 months of the order of compulsory retirement of the Assistant Commandant, show cause notice was issued to the petitioner on 06.01.2010. It is the stand of the respondents in the affidavit that show cause notice was issued to the petitioner not because of the complaint lodged by the former Assistant Commandant, but on the basis of the report of the Complaint Committee. The two charges framed against the petitioner reads as under: -
" ARTICLE OF CHARGE - I That No.004341215 Lady Constable Sarita Das of Nazira Sector, CISF Unit ONGC Nazira, while posted at CISF Unit WPC No. 6403/2011 Page 25 of 33 Lilabari Airport levelled false allegation against her Supervisory Officer Shri CL Ganjir Asstt. Comdt., for an extremely heinous crime like attempt to rape her at about 0100 Hrs on 23.09.2006 at her Qtr No. 28, Type-II, AAI Colony, vide her application dated 28.09.2006 addressed to the DG/CISF. This act of the said Lady Constable is gross misconduct, indiscipline and unbecoming a disciplined member of the Force. Hence the charge.
ARTICLE OF CHARGE-II That No. 004341215 Lady Constable Sarita Das of Nazira Sector, CISF Unit ONGC Nazira, while posted at CISF Unit Lilabari Airport, hatched a conspiracy against her Supervisory Officer Shri CL Ganjir Asstt. Comdt., in connivance with some other CISF personnel and trapped him at her Qtr No. 28, Type-II AAI Colony at about 0100 Hrs on 23.09.2006 on the false allegation of an extremely heinous crime like attempt to rape her and thereafter levelled several false allegations against him vide her application dated 28.09.2006 addressed to the DG/CISF. This act of the said Lady Constable is gross misconduct, indiscipline and unbecoming a disciplined member of the Force. Hence the charge."
42. The substance of charge No. 1 is that petitioner levelled false allegation against her Supervisory Officer, Sri CL Ganjir for an extremely heinous crime like attempt to rape her at about 01.00 a.m. on 23.09.2006 at her quarter vide her application dated 28.09.2006 addressed to the Director General. It is the admitted stand of the respondents in their affidavit that the departmental proceeding against the petitioner, as initiated by the charge memo dated 06.01.2010, was based on the report of the Complaint Committee which had gone into the allegation of sexual harassment made by WPC No. 6403/2011 Page 26 of 33 the petitioner against Sri CL Ganjir in her complaint dated 28.09.2006. Despite the tone and tenor of the report of the Complaint Committee as already noticed, which clearly reflects an endeavour to shield the Assistant Commandant from the gravity of the offence, indisputably the report still said that the Assistant Commandant visited the quarter of the petitioner after talking to her several times on her mobile phone prior to his visit. The Complaint Committee noted that his visit alone to the quarter of the petitioner at around midnight when he knew that her husband was not at home raised an element of doubt about his intention. The Assistant Commandant was admittedly found in the quarter of the petitioner at around 01.00 a.m. at night by the people who had assembled in and in front of her quarter following her hue and cry. This was preceded by several phone calls made by him to her. As per own statement of the Assistant Commandant, he made four phone calls in the afternoon and five phone calls in the night of the same day i.e., 22-09-2006 to the petitioner, duration of one such call being 32 minutes 15 second. According to the Assistant Commandant, he had only talked about the illness of her son in all those calls! The explanation given by the Assistant Commandant for visiting the quarter of the petitioner at around midnight that he had gone there to enquire about the health of her minor son who was sick, is ludicrous to say the least. Why should the Assistant Commandant visit the residence of a lady Constable at around midnight to enquire about the health condition of her son? He had already talked with her over phone several times prior to his midnight visit and as per his own statement, had enquired about the health of the petitioner's son. There was no emergency to warrant a midnight visit. He is not a doctor. He WPC No. 6403/2011 Page 27 of 33 did not take a doctor along with him when he went to the residence of the petitioner. The further explanation given that since he was on duty, which would be borne out by the fact that he was wearing his uniform, he thought of enquiring about the well being of the petitioner's son as he was passing by her quarter, deserves to be dismissed with disdain. An Assistant Commandant does not go out on duty at midnight alone, that too, on foot. It would be quite evident even to a layman that wearing of uniform by the Assistant Commandant while visiting the quarter of the petitioner was a facade to hide his real intention. Be that as it may, the Complaint Committee despite all flaws accepted the complaint of the petitioner dated 28.09.2006 by concluding that a prima-facie case of attempt to molest the petitioner partially exists against the Assistant Commandant. In the face of such a finding recorded by the Complaint Committee, can the complaint made by the petitioner be said to be false allegation? The answer to this would obviously be in the negative. Consequently, this charge, therefore, could not have been framed against the petitioner.
43. Coming to charge No. 2, the substance of the charge is that petitioner had hatched a conspiracy against her Supervisory Officer Sri CL Ganjir, Assistant Commandant in connivance with some other CISF personnel and trapped him at her quarter at about 01.00 a.m. on 23.09.2006 on the false allegation of attempting to commit rape on her vide her application dated 28.09.2006. In view of what has been discussed and held above, allegation of the petitioner against the Assistant Commandant vide her complaint dated 28.09.2006, having been allowed by the Complaint Committee by holding that a prima facie case of attempt to molest the WPC No. 6403/2011 Page 28 of 33 petitioner partially exists against the Assistant Commandant, the allegation cannot be said to be false. Regarding hatching of conspiracy, even as per the report of the Complaint Committee, the conspiracy was hatched by four CISF personnel, namely, Sri Satish Kumar, DK Gautam, RK Dev and Hemlata Gautam. In the opinion of the Complaint Committee, petitioner had probably become fed up due to the unwarranted sexual remarks of the Assistant Commandant at work place. The Complaint Committee was further of the view that since petitioner was subjected to some willful sexual advances/harassment by Sri CL Ganjir, she became a party to the conspiracy and allowed herself to be used as a bait by the conspirators. Since the report of the Complaint Committee was the foundation of the charge memo, framing of charge itself is wrong inasmuch, as per the charge, it was the petitioner who had hatched a conspiracy in connivance with some other CISF personnel, whereas as per the report of the Complaint Committee, the petitioner because of her frustration due to sexual harassment faced by her at the hands of the Assistant Commandant became a party to the conspiracy. There is a clear and fundamental difference between the two. Thus, in the considered opinion of the Court, the second charge also could not have been framed against the petitioner.
44. Interesting, the Inquiry Officer in his inquiry report dated 21.09.2010 changed the structure and character of the two charges, perhaps being aware of the untenablility of the two charges framed initially. This is how the Inquiry Officer reframed the two charges : -
WPC No. 6403/2011 Page 29 of 33
"Following charges have been framed against No.004341215 Lady Constable Sarita Das, CISF Unit, ONGC, Nazira.
Force No. 004341215 Lady Constable Sarita Das, Nazira Sector, CISF Unit, ONGC, Nazira while serving at CISF Unit, Lilabari Airport alleged her Supervisory Officer, Shri CL Ganjir, Assistant Commandant of heinous crime of attempt to rape on 23.09.2006 at about 0100 hours in her House No. 28, Type-II, AAI Colony in her application dated 28.09.2006 addressed to DG, CISF. The said lady Const. is charged with aforesaid gross misconduct indiscipline in Central Disciplined Force.
Article -II.
No. 004341215 Lady Const. Sarita Das, Nazira Sector CISF Unit, Nazira committed an act of conspiracy against her Supervisory Officer Shri CL Ganjir, Assistant Commandant while serving in CISF Unit, Lilabari Airport by conniving with other members of the Force and made false charges of attempt to rape on 23.09.2006 at 0100 hours in her Hose No. 28, Type-II, AAI Colony and thereafter she made several false charges in application dated 28.09.2006 addressed to DG, CISF. The said lady is charged with aforesaid gross misconduct, indiscipline in this Central Disciplined Force."
45. From a reading of the two charges as reframed by the Inquiry Officer, which were held to be "totally proved", it is clear that what the petitioner was charged with in the charge memo and what the Inquiry Officer enquired into in the inquiry were significantly different. WPC No. 6403/2011 Page 30 of 33
46. It is a settled law that to sustain a disciplinary proceeding, the charges framed against the employee must be clear, specific and unambiguous. The charges cannot be changed in the course of the proceeding to suit the interest of the employer.
47. In the light of the above discussion, this Court is of the considered view that the charges framed against the petitioner cannot be sustained in the face of the findings recorded by the Complaint Committee accepting sexual harassment of the petitioner by her superior Assistant Commandant. Consequently, the disciplinary proceeding drawn up against the petitioner leading to imposition of penalty on her based on the charges framed cannot also be sustained. Since this Court has held that the charges are wholly untenable and therefore the departmental proceeding against the petitioner has to necessarily fail, it is considered not necessary to delve into the other grounds raised by the learned counsel for the petitioner.
48. Petitioner was a victim of sexual harassment. From the long inquiry report and the manner in which the departmental proceeding against the petitioner was conducted unmistakably points out to an attempt to undo the report of the Complaint Committee which itself left much to be desired. It appears that the Complaint Committee as well as the Inquiry Officer had embarked upon a search mission to find out contradictions and loopholes in the case of the petitioner, as if with a magnifying glass, so as to portray the sexual offender himself as a victim of conspiracy. Here was a lowly ranked lady constable who had the courage to lodge a complaint of sexual harassment against her superior officer, an Assistant Commandant, before WPC No. 6403/2011 Page 31 of 33 the highest authority of CISF i.e., the Director General. In a tradition bound conservative society such as ours, ordinarily, a woman or a girl would not make a false complaint against her superior officer about having raped her or making an attempt to rape her, that too, before the Director General, knowing fully well that her honour, dignity and job were at stake. The Court cannot overlook this aspect. In STATE OF PUNJAB VS. GURMIT SINGH, reported in (1996) 2 SCC 384, the Apex Court questioned -
"Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion?"
and then held as under: -
"it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice."
It is a clear case of victimization of the victim against which the Hon'ble Supreme Court had cautioned in VISHAKA and MEDHA KOTWAL LELE. The higher authorities of CISF i.e., the appellate authority and the revisional authority failed to rise to the occasion and, thus wittingly or unwittingly became a party to the victimization of the petitioner who was a victim of sexual harassment at the hands of her Supervisory Officer.
49. There is no doubt in the mind of the Court that grave injustice has been done to the petitioner and the situation needs to be remedied. Thus petitioner needs to be rehabilitated which may restore her dignity and honour to a certain extent.
WPC No. 6403/2011 Page 32 of 33
50. Accordingly, the order of dismissal dated 29.10.2010, as affirmed by the appellate authority as well as by the revisional authority, is hereby set aside and quashed. Petitioner shall be reinstated in service with all consequential service benefits, including payment of her full arrear salary with increments, if any. Respondents shall pay cost of Rs. 50,000.00 to the petitioner along with her arrear salary, which shall be done within a period of 3 months from the date of her reinstatement.
51. Writ petition is accordingly allowed with costs as above.
Judge Beep! WPC No. 6403/2011 Page 33 of 33