1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.705 OF 2018
DR.P.S. MALIK ...PETITIONER(S)
VERSUS
HIGH COURT OF DELHI & ANR. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
The petitioner, A Judicial Officer in Delhi
Higher Judicial Services, against whom disciplinary
proceedings alleging sexual harassment is underway,
has filed this writ petition under Article 32 of the
Constitution of India praying for following reliefs:-
“a. issue a writ, order or direction in
the nature of certiorari quashing the
resolution of Respondent No.1, the
Full Court of Delhi High Court dated
13.07.2016 inToto, cited in the report
dated 09.03.2018 (Annexure-P-12) and
also all subsequent resolutions passed
by Full Court of Delhi High Court
dated 19.07.2016, 16.11.2016,
23.02.2017, 06.07.2017 or on any other
date in relation to this enquiry,
cited in the report dated 09.03.2018
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(Annexure-P- 12) as the same are
arbitrary, without any jurisdiction
and violative of the provisions of
Sexual Harassment of Women at
Workplace Prevention, Prohibition and
Redressal) Act of 2013, Art. 14 and
Art. 21 of the Constitution of India;
b. issue a writ, order or direction in
the nature of certiorari quashing the
proceedings of ICC the Respondent
number 2 as held by it under the
Provisions of the Act of 2013.
c. issue a writ, order or direction in
the nature of certiorari quashing the
Charge sheet dated 23.02.2017
(Annexure-P-7) issued by the
Respondent No.1 on the recommendation
of the Respondent No.2;
d. issue a writ, order or direction in
the nature of certiorari quashing the
report dated 9.3.2018 (Annexure-P-12)
of the ICC, the 2nd Respondent herein
along with all the proceedings of the
Respondents leading thereto;
e. issue a writ, order or direction in
the nature of certiorari quashing the
letter of e Hon’ble Delhi High Court
dated 15.05.2018 (Annexure-P-11)
issued by Respondent No.1; and
f. pass any other writ, order or
direction as this Hon’ble Court deems
fit to grant in the interest of
justice.”
2. Brief facts necessary for deciding this writ
petition are:-
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2.1 The petitioner has been working as Additional
District Judge at Dwarka, New Delhi. On
05.07.2016, a written complaint was submitted
against the petitioner by a lady, Junior
Judicial Assistant (hereinafter referred to
as “employee”) alleging sexual harassment at
work place. The complaint was addressed to
the Chief Justice of High Court of Delhi.
The Junior Judicial Assistant was working as
Ahlmad in the Court of the petitioner w.e.f.
18.05.2015. She continued to work in that
capacity till 18.05.2016. Another complaint
dated 11.07.2016 was submitted by the
employee to the Chief Justice. Complaint
submitted by the employee came for
consideration before the Full Court of the
High Court on 13.07.2016, which resolved as
under:-
i. The Judicial Officer be placed under
suspension with immediate effect
pending disciplinary proceeding
contemplated against him.
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ii. The Registrar General will forward the
complaint dated 05.07.2016 to SHO of
the concerned Police Station for
appropriate action in accordance with
law under intimation to this Court.
iii. Registry to take steps in anticipation
of the confirmation of the Minutes.
2.2 The Full Court of the Delhi High Court by
further resolution dated 19.07.2016 resolved to
constitute an Internal Complaints Committee
consisting of five members to inquire into the
allegation of sexual harassment made against
the petitioner. The petitioner as well as the
employee appeared before the Internal
Complaints Committee (hereinafter referred to
as “Committee”). The petitioner was suspended
by order dated 13.07.2016 pending disciplinary
proceedings. The employee further submitted a
detailed statement dated 28.07.2016 before the
Committee. The petitioner submitted his reply
to the Committee on 02.09.2016. On 19.09.2016,
the Committee interacted with both the parties
separately. On 05.11.2016, the Committee
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submitted a Preliminary Report to the Full
Court. By its Report dated 05.11.2016, the
Committee opined that a disciplinary inquiry be
held against the petitioner. Full Court of the
High Court in its meeting dated 16.11.2016
resolved that the disciplinary proceedings for
major penalty under Rule 8 of All India
Services (Discipline and Appeal) Rules, 1969 be
initiated against the petitioner.
2.3 The memo of charges dated 22/23.02.2017 was
given to the petitioner containing, article of
charges and statement of imputations. The
petitioner submitted written statement on
11.03.2017. The Full Court on 06.07.2017
considered the written statement of defence
dated 11.03.2017 of petitioner and resolved to
hold the inquiry. The Full Court resolved for
constituting a Committee in terms of Section 4
of the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act,
2013 (hereinafter referred to as “Act, 2013”)
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chaired by Hon’ble Ms. Justice Hima Kohli, who
was appointed as the Inquiring Authority.
2.4 The inquiry before the Inquiring Committee
proceeded and Report dated 09.03.2018 has been
submitted by the Internal Complaints Committee.
The Inquiry Report submitted by the Committee
was placed before the Full Court in its meeting
held on 25.04.2018 which resolved to forward
the Inquiry Report to the petitioner and to ask
him to submit his written submissions. Full
Court in its meeting dated 01.08.2018 also
resolved to supply certified copies of Full
Court Meeting Minutes dated 13.07.2016,
19.07.2016 and 16.11.2016 to the petitioner.
High Court also resolved that since the
Preliminary Inquiry Report dated 05.11.2016 has
not been relied upon, the same be not supplied
to the petitioner. After receipt of the
Inquiry Report, the petitioner has filed this
writ petition on 08.06.2018.
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3. We have heard Shri Varinder Kumar Sharma, learned
counsel for the petitioner and Shri P.S. Narsimha,
learned senior counsel for the respondent.
4. Learned counsel for the petitioner contends that
the Full Court of the High Court on receiving the
complaint dated 05.07.2016 did not follow the
procedure given in Act, 2013. It is submitted that
Full Court ought to have handed over the complaint to
the Internal Complaints Committee for inquiry. Full
Court erred in issuing three punitive directions on
13.07.2016 against the petitioner. The order dated
13.07.2016 was premature being before an inquiry or
opportunity to the petitioner of being heard.
Further, they were passed by an authority, which had
no legal competence to pass those directions under
the Delhi Higher Judicial Service Rules, 1970 and the
All India Services Rules. There has been blatant
violation of Act, 2013 in the petitioner’s case
vitiating the entire procedure. The Committee after
conducting the inquiry has submitted a Report dated
05.11.2016, which report was required to be given to
the petitioner as per Act, 2013 but was denied to the
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petitioner. The Committee having not found proved
the allegation against the petitioner, Full Court
ought not to have proceeded to impose penalty against
the petitioner. The respondents have wrongly assumed
that they are the disciplinary authority of the
petitioner whereas under Rule 26A of the Delhi Higher
Judicial Service Rules, 1970 (hereinafter referred to
as “Rules, 1970”), the High Court has been debarred
from having any right over the members of the service
in matters relating to major penalties. The charge
memo dated 23.02.2017 was issued without even
information to the disciplinary authority, i.e., the
Governor.
5. Shri Narsimha, learned senior counsel appearing
for the respondents submits that High Court having
control over judicial officers under Article 235 of
the Constitution, it did not lack jurisdiction in
placing the petitioner under suspension and directing
for a regular disciplinary inquiry. Inquiry having
conducted by the Committee, which after holding fullfledged inquiry, giving full opportunity to the
petitioner has submitted a Report dated 09.03.2018.
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The Inquiry Report dated 09.03.2018 was served on the
petitioner by letter dated 16.05.2018, where
petitioner was asked to submit his written
representation or statement within one month, which
has not yet been done. It is submitted that in view
of the fact that the petitioner has filed this
petition in this Court and matter being pending due
to deference to this Hon’ble Court, no further steps
have been taken in the inquiry. It is submitted that
the Report dated 05.11.2016 was a Preliminary Report
submitted by the Committee giving opinion that the
disciplinary inquiry be held, the said report being a
Preliminary Inquiry Report, it was not necessary to
serve such report to the petitioner. The Inquiry
Report conducted as per Section 11 of the Act, 2013
and as per Section 13, the copy of the report has
been duly served on the petitioner. Further, the
Preliminary Inquiry Report dated 05.11.2016 was not
taken into consideration for framing charges against
the petitioner and hence the High Court did not give
a copy of the said report to the petitioner.
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6. We have heard the learned counsel for the parties
and have perused the records.
7. At very outset, we indicated to the learned
counsel for the petitioner that the disciplinary
proceedings against the petitioner being still
underway, having not yet taken any final shape, most
of the issues, which are sought to be raised by the
writ petitioner in this writ petition can very well
be canvassed and pressed before in the disciplinary
proceedings. We indicated that any expression of
opinion by this Court on issues, which are relevant
and material in the disciplinary inquiry may
prejudice the parties.
8. Learned counsel for the petitioner specifically
submitted that this Court may consider those
submissions, which go to the very root of the matter
specially non-compliance of the provisions of Act,
2013. We have already extracted the reliefs claimed
in the writ petition. Claims in the writ petition
are very wide, which include quashing the proceedings
of Internal Complaints Committee as well as Charge
Sheet dated 23.02.2017 and the Report dated
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09.03.2018. We are of the view that the petitioner
having still opportunity in the disciplinary
proceedings to challenge the proceedings of the
Internal Complaints Committee, the charge sheet as
well as the Inquiry Report dated 09.03.2018, we deem
it appropriate not to enter into above issues leaving
it open to the petitioner to raise all submissions
and pleas before the appropriate authority. In this
writ petition, we, however, proceed to examine only
few limited issues, which has been pressed by the
petitioner. The only issues, which we proceed to
consider are:-
(i) Whether the High Court is a disciplinary
authority of the petitioner, competent to
initiate the disciplinary proceedings
against the petitioner and suspend him as
per Delhi Higher Judicial Service Rules,
1970 and All India Services (Discipline and
Appeal) Rules, 1969?
(ii) Whether the decision of the Full Court on
13.07.2016 initiating enquiry against the
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petitioner and placing him under suspension
was beyond jurisdiction?
(iii) Whether the Preliminary Inquiry Report
submitted by Internal Complaints Committee
dated 05.11.2016 ought to have been
supplied to the petitioner and non-supply
of such Preliminary Inquiry Report dated
05.11.2016 vitiated the entire proceedings?
Issue Nos. 1 and 2
9. Issue Nos.1 and 2 being connected are taken
together. Part VI of the Constitution of India deals
with “The States”. Chapter VI contains heading
“Subordinate Courts”. Articles 233 and 235 of the
Constitution of India refers to two distinct powers.
The first is power of appointment, posting and
promotion of District Judges and second is power of
control over Judicial Officers of the State. The
word “control” occurring in Article 235 means not
only the general superintendence of the working of
the Courts but includes the disciplinary control of
the judicial officers, i.e., the district judges and
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judges subordinate to him. The word “control” used
in Article 235 has been held by this court to be
disciplinary control. A Constitution Bench of this
Court in State of West Bengal and Another Vs.
Nripendra Nath Bagchi, AIR 1966 SC 447 had occasion
to consider the nature of the control vested in the
High Court in Article 235 of the Constitution over
district judges. In paragraph No.13 following was
held:-
“15. We do not accept this construction.
The word “control” is not defined in the
Constitution at all. In Part XIV which
deals with Services under the Union and the
States the words “disciplinary control” or
“disciplinary jurisdiction” have not at all
been used. It is not to be thought that
disciplinary jurisdiction of services is
not contemplated. In the context the word
“control” must, in our judgment, include
disciplinary jurisdiction. Indeed, the word
may be said to be used as a term of art
because the Civil Services (Classification
Control and Appeal) Rules used the word
“control” and the only rules which can
legitimately come under the word “control”
are the Disciplinary Rules. Further, as we
have already shown, the history which lies
behind the enactment of these Articles
indicate that “control” was vested in the
High Court to effectuate a purpose, namely,
the securing of the independence of the
subordinate judiciary and unless it
included disciplinary control as well the
very object would be frustrated. This aid
to construction is admissible because to
find out the meaning of a law, recourse may
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legitimately be had to the prior state of
the law, the evil sought to be removed and
the process by which the law was evolved.
The word “control”, as we have seen, was
used for the first time in the Constitution
and it is accompanied by the word “vest”
which is a strong word. It shows that the
High Court is made the sole custodian of
the control over the judiciary. Control,
therefore, is not merely the power to
arrange the day to day working of the court
but contemplates disciplinary jurisdiction
over the presiding Judge……………………………”
10. The Constitution Bench further held that under
Article 235 of the Constitution, High Court can hold
enquiries, impose punishments other than dismissal or
removal. In paragraph No. 18, following has been
held:-
“18. There is, therefore, nothing in
Article 311 which compels the conclusion
that the High Court is ousted of the
jurisdiction to hold the enquiry if Article
235 vested such a power in it. In our
judgment, the control which is vested in
the High Court is a complete control
subject only to the power of the Governor
in the matter of appointment (including
dismissal and removal) and posting and
promotion of District Judges. Within the
exercise of the control vested in the High
Court, the High Court can hold enquiries,
impose punishments other than dismissal or
removal, subject however to the conditions
of service, and a right of appeal if
granted by the conditions of service, and
to the giving of an opportunity of showing
cause as required by clause (2) of Article
311 unless such opportunity is dispensed
with by the Governor acting under the
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provisos (b) and (c) to that clause. The
High Court alone could have held the
enquiry in this case. To hold otherwise
will be to reverse the policy which has
moved determinedly in this direction.”
11. To the same effect is another Three Judge Bench
judgment of this Court is Baradakanta Mishra Vs. High
Court of Orissa and Another, (1976) 3 SCC 327 where
in paragraph No.20, following was laid down:-
“20. The scope of Article 235 has been
examined by this Court in several
decisions. The important decisions are
State of West Bengal v. Nripendra Nath
Bagchi, AIR 1966 SC 447; High Court of
Calcutta v. Amal Kumar Roy, AIR 1962 SC
1704; High Court of Punjab and Haryana v.
State of Haryana (In the matter of N.S.
Rao), (1975) 1 SCC 843. The effect of the
decisions is this. The word “control” as
used in Article 235 includes disciplinary
control over District Judges and judges
inferior to the post of District Judge.
This control is vested in the High Court to
effectuate the purpose of securing
independence of the subordinate judiciary
and unless it included disciplinary control
as well the very object would be
frustrated. The word “control” is
accompanied by the word “vest” which shows
that the High Court is made the sole
custodian of the control over the
judiciary. Control is not merely the power
to arrange the day-to-day working of the
court but contemplates disciplinary
jurisdiction on the presiding judge. The
word “control” includes something in
addition to the mere superintendence of
these courts. The control is over the
conduct and discipline of judges. The
inclusion of a right of appeal against the
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orders of the High Court in the conditions
of service indicates an order passed in
disciplinary jurisdiction. The word “deal”
in Article 235 also indicates that the
control is over disciplinary and not mere
administrative jurisdiction. The control
which is vested in the High Court is
complete control subject only to the power
of the Governor in the manner of
appointment including initial posting and
promotion of District Judges and dismissal,
removal, reduction in rank of District
Judges. Within the exercise of the control
vested in the High Court, the High Court
can hold enquiries, impose punishments
other than dismissal or removal subject
however to the conditions of service to a
right of appeal if granted by the
conditions of service, and to the giving of
an opportunity of showing cause as required
by clause (2) of Article 311 unless such an
opportunity is dispensed with by the
Governor acting under the provisos (b) and
(c) to that clause. The High Court alone
could make enquiries into disciplinary
conduct.”
12. Another Constitution Bench in Registrar (Admn.),
High Court of Orissa, Cuttack Vs. Sisir Kanta
Satapathy (Dead) by Lrs. and Another, (1999) 7 SCC
725 after reviewing all earlier judgments, laid down
following in paragraph No.16:-
“16. We are clearly of the view that while
the High Court retains the power of
disciplinary control over the subordinate
judiciary, including the power to initiate
disciplinary proceedings, suspend them
pending enquiries and impose punishment on
them but when it comes to the question of
dismissal, removal, reduction in rank or
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termination of the services of the judicial
officer, on any count whatsoever, the High
Court becomes only the recommending
authority and cannot itself pass such an
order (vide Inder Prakash Anand case,
(1976) 2 SCC 977 and Rajiah case, (1988) 3
SCC 211).”
13. We may also refer to another judgment of this
Court in Rajendra Singh Verma (Dead) through LRs. and
Others Vs. Lieutenant Governor (NCT of Delhi) and
Others, (2011) 10 SCC 1. This Court in the above case
had occasion to consider control of Article 235 over
the judicial officers of NCT of Delhi. This Court
after elaborating the control of the High Court with
reference to judicial officers of NCT Delhi had laid
down that High Court alone is the sole authority
competent to initiate disciplinary proceedings
against Subordinate Judicial Officers or to impose
various punishments. The contentions raised before
the Court based on Article 239AA(4) of the
Constitution that the Scheme in NCT Delhi is
different was rejected. Following was laid down in
paragraph No.136:-
“136. Reliance on Article 239-AA(4) is
entirely out of place so far as the High
Court is concerned, dealing with the
judicial officers. To give any other
interpretation to Article 239-AA(4) will be
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to defeat the supreme object underlying
Article 235 of the Constitution, specially
intended for protection of the judicial
officers and necessarily independence of
the subordinate judiciary. It is absolutely
clear that the Governor cannot take the aid
and advice of his Council of Ministers in
the case of judicial officers and accept
its advice and act according to it. There
is no room for any outside body between the
Governor and the High Court. Therefore,
this Court does not find any substance in
this contention also and the same is
rejected.”
14. In the above case, it has been clearly and
categorically laid down that disciplinary authority
with regard to judicial officers is the High Court
and it is the High Court, which can initiate the
disciplinary proceedings against judicial officers.
Although, with regard to dismissal, removal or
reduction in rank or termination of services of
judicial officers, the High Court becomes the
recommending authority and it is the Governor, who is
to issue the orders.
15. Learned counsel for the petitioner has placed
reliance on a Constitution Bench judgment of this
Court in Chief Justice of Andhra Pradesh and Others
Vs. L.V.A. Dixitulu and Others, (1979) 2 SCC 34. The
above case was a case of employees of a High Court.
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This Court had occasion to interpret the scope of
Article 235. In paragraph 40 of the judgment, few
incidents of control vested in the High Court were
enumerated. Paragraph 40 is as follows:
“40. The interpretation and scope of
Article 235 has been the subject of several
decisions of this Court. The position
crystallised by these decisions is that the
control over the subordinate judiciary
vested in the High Court under Article 235
is exclusive in nature, comprehensive in
extent and effective in operation. It
comprehends a wide variety of matters.
Among others, it includes:
(a) (i) Disciplinary jurisdiction and
a complete control subject only to
the power of the Governor in the
matter of appointment, dismissal,
removal, reduction in rank of
District Judges, and initial posting
and promotion to the cadre of
District Judges. In the exercise of
this control, the High Court can hold
inquiries against a member of the
subordinate judiciary, impose
punishment other than dismissal or
removal, subject, however, to the
conditions of service, and a right of
appeal, if any, granted thereby and
to the giving of an opportunity of
showing cause as required by Article
311(2).
(ii) In Article 235, the word
'control' is accompanied by the word
"vest" which shows that the High
Court alone is made the sole
custodian of the control over the
judiciary. The control vested in the
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High Court, being exclusive, and not
dual, an inquiry into the conduct of
a member of judiciary can be held by
the High Court alone and no other
authority. (State of West Bengal v.
Nripendra Nath Bagchi (supra);
Shamsher Singh v. State of Punjab
(1974) 2 SCC 831; Punjab and Haryana
High Court v. State of Haryana (sub
nom Narendra Singh Rao,(1975) 1 SCC
831).
(iii) Suspension from service of a
member of the judiciary, with a view
to hold a disciplinary inquiry.
(b)Transfers, promotions and
confirmation of such promotions of
persons holding posts in the judicial
service, inferior to that of District
Judge. (State of Assam v. S.N. Sen,
(1971) 2 SCC 899, State of Assam v.
Kuneswar Saikia, (1969) 3 SCC 505).
(c) Transfers of District Judges
[State of Assam v. Ranga Muhammad
(supra); Chandra Mouleshwar v. Patna
High Court (supra)].
(d) Recall of District Judges posted
on ex-cadre posts or on deputation on
administrated posts. (State of Orissa
v. Sudhansu Sekhar Misra, AIR 1968 SC
647).
(e) Award of Selection grade to the
members of the judicial service,
including District Judges it being
their further promotion after their
initial appointment to the cadre.
(State of Assam v. Kuseswar Saikia
(supra).
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(f) Confirmation of District Judges,
after their initial appointment or
promotion by the Governor to the
cadre of District Judges under
Article 233, on probation or
officiating basis. [Punjab & Haryana
High Court v. State of Haryana
(supra)].
(g) Premature or compulsory
retirement of Judges of the District
Court and of Subordinate Courts
(State of U.P. v. Batuk Deo Pati
Tripathi and Anr. (supra).”
16. In the above case also, this Court held that the
disciplinary jurisdiction vests in the High Court
which can hold inquiries against a member of the
subordinate judiciary, impose punishment other than
dismissal or removal. The High Court can also suspend
a member of the judiciary. Insofar as dismissal or
removal is concerned, the said orders are required to
be passed by the Governor on the recommendation of
the High Court. The fact that the orders of dismissal
or removal are issued by the approval of the Governor
in no manner denude the disciplinary control of the
High Court.
17. Another judgment relied on by the learned counsel
for the petitioner is State of Tamil Nadu Rep. by
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Secretary to Govt.(Home) Vs. Promod Kumar IPS and
Another, AIR 2018 SC 4060. The above was a case of
the member of Indian Police Service. This Court had
occasion to consider the provisions of All India
Services (Discipline and Appeal) Rules, 1969 in the
context of member of Indian Police Service. Learned
counsel for the petitioner has placed reliance on
paragraphs 18 and 19, which are to the following
effect:
“18. Rule 8(4) of the All India Service
(Discipline and Appeal) Rules, 1969 also
mandates that the disciplinary authority
shall "draw up or cause to be drawn up" the
charge memo. We see no reason to take a
view different from the one taken by this
Court in B.V. Gopinath (AIR 2014 SC 88)
(supra). We also see no substance in the
submission made by the Senior Counsel for
the State that the said judgment needs
reconsideration. Assuming that Mr. Giri is
right in his submission that the initiation
of disciplinary proceedings and issuance of
charge memo are at the same stage, the
mandatory requirement of Rule 8 which
provides for the charge memo to be drawn by
the disciplinary authority cannot be
ignored. We reject the submission on behalf
of the Appellant that Gopinath's case can
be distinguished on facts. We are not in
agreement with the contention of the
Appellant that the business Rules and
standing orders of the State of Tamil Nadu
are quite different from the office orders
and circulars issued by Union of India
which formed the basis of the judgment in
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Gopinath's case. A close reading of the
said judgment would disclose that reliance
on the office note was only in addition to
the interpretation of the Rule.
19. It is also settled law that if the Rule
requires something to be done in a
particular manner it should be done either
in the same manner or not at all- Taylor v.
Taylor (1875) 1 Ch. D. 426, 431. In view of
the mandatory requirement of Rule 8(4) and
the charge memo being drawn up or cause to
be drawn up by the disciplinary authority
is not complied with, we are of the
considered opinion that there is no reason
to interfere with the judgment of the High
Court on this issue. The only addition we
would like to make is to give liberty to
the disciplinary authority to issue a
charge memo afresh after taking approval
from the disciplinary authority.”
18. In the above case, charge memo was not drawn by
the disciplinary authority, hence, this Court
approved the decision of the High Court quashing
charge-sheet. The above case is not applicable in the
present case. The petitioner in the present case is a
member of Judicial Service for which disciplinary
authority is the High Court.
19. The submission, which has been pressed by the
petitioner is that in view of Act, 2013 there being
an Inquiry Report by Internal Complaints Committee as
envisaged by Sections 11 and 13, the High Court could
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not have taken a decision to initiate the inquiry or
to suspend the petitioner. The Act, 2013 was to
provide protection against sexual harassment of women
at workplace and for the prevention and redressal of
complaints of sexual harassment and for matters
connected therewith or incidental thereto. Chapter
II of Act, 2013 deals with constitution of Internal
Complaints Committee. Chapter IV deals with
complaint. In Chapter IV, one of the sections is
Section 11, which deals with inquiry into complaint.
Section 11 of the Act is as follows:-
“11. Inquiry into complaint.-- (1) Subject
to the provisions of section 10, the
Internal Committee or the Local Committee,
as the case may be, shall, where the
respondent is an employee, proceed to make
inquiry into the complaint in accordance
with the provisions of the service rules
applicable to the respondent and where no
such rules exist, in such manner as may be
prescribed or in case of a domestic worker,
the Local Committee shall, if prima facie
case exist, forward the complaint to the
police, within a period of seven days for
registering the case under section 509 of
the Indian Penal Code (45 of 1860), and any
other relevant provisions of the said Code
where applicable:
Provided that where the aggrieved woman
informs the Internal Committee or the Local
Committee, as the case may be, that any
25
term or condition of the settlement arrived
at under sub-section (2) of section 10 has
not been complied with by the respondent,
the Internal Committee or the Local
Committee shall proceed to make an inquiry
into the complaint or, as the case may be,
forward the complaint to the police:
Provided further that where both the
parties arc employees, the parties shall,
during the course of inquiry, be given an
opportunity of being heard and a copy of
the findings shall he made available to
both the parties enabling them to make
representation against the findings before
the Committee.
XXXXXXXXXXXXXXXX”
20. Chapter V deals with inquiry into complaint and
Section 13 deals with inquiry report, which is to the
following effect:-
“13. Inquiry Report.--(1) On the
completion of an inquiry under this Act,
the Internal Committee or the Local
Committee, as the case may be, shall
provide a report of its findings to the
employer, or as the case may be, the
District Officer within a period of ten
days from the date of completion of the
inquiry and such report be made available
to the concerned parties.
(2) Where the Internal Committee or the
Local Committee, as the case may be,
arrives at the conclusion that the
allegation against the respondent has not
been proved, it shall recommend to the
employer and the District Officer that no
26
action is required to be taken in the
matter.
(3) Where the Internal Committee or the
Local Committee, as the case may be,
arrives at the conclusion that the
allegation against the respondent has been
proved, it shall recommend to the employer
or the District Officer, as the case may be
—
(i) to take action for sexual harassment
as a misconduct in accordance with
the provisions of the service rules
applicable to the respondent or where
no such service rules have been made,
in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything
in the service rules applicable to
the respondent, from the salary or
wages of the respondent such sum as
it may consider appropriate to be
paid to the aggrieved woman or to her
legal heirs, as it may determine, in
accordance with the provisions of
section 15:
Provided that in case the employer is
unable to make such deduction from the
salary of the respondent due to his being
absent from duty or cessation of employment
it may direct to the respondent to pay such
sum to the aggrieved woman:
Provided further that in case the
respondent fails to pay the sum referred to
in clause (ii), the Internal Committee or
as the case may be, the Local Committee may
forward the order for recovery of the sum
as an arrear of land revenue to the
concerned District Officer.
27
(4) The employer or the District Officer
shall act upon the recommendation within
sixty days of its receipt by him.”
21. The Act, 2013 is a parliamentary legislation, the
preamble of which outlines the necessity of
legislation, which is to the following effect:-
“An Act to provide protection against
sexual harassment of women at workplace and
for the prevention and redressal of
complaints of sexual harassment and for
matters connected therewith or incidental
thereto.”
22. The provisions of the Act, complaint mechanism
and mechanism for constitution of the Internal
Complaints Committee, mechanism to inquire the
complaint are all for protection of dignity and
welfare of women at workplace. The provisions of
Sections 11 and 13 in no manner affect the control of
the High Court under Article 235, which it has with
respect to judicial officers as noted above. The
power to suspend the judicial officer vests in the
High Court. The Full Court of the High court is in
no manner precluded from initiating disciplinary
inquiry against the petitioner and placing the
petitioner under suspension on being satisfied that
28
sufficient material existed. The High Court in its
meeting dated 19.07.2016 has resolved to send the
complaint of the employee to the Internal Complaints
Committee and the Internal Complaints Committee
having opined that inquiry need to be held, further
steps were taken in accordance with Act, 2013. We,
thus, are of the view that there is no error in the
decision of the Full Court dated 13.07.2016 to
suspend the petitioner and initiate the inquiry
proceedings against the petitioner.
Issue No.3
23. The submission on which much emphasis has been
made by the petitioner is that the copy of the Report
dated 05.11.2016 referred to as a Preliminary Inquiry
Report by the High Court has not been supplied to the
petitioner by which he has been denied right to
appeal. With regard to Preliminary Inquiry Report
dated 05.11.2016, in paragraph Nos. 48 and 49, the
High Court has made following assertions:-
“48-49. The contents of para 48-49 are
wrong and denied. The Petitioner is under
the erroneous belief that the report dated
05.11.2016 which is only a Preliminary
Inquiry Report should have been made
available to him. That the inquiry has been
conducted strictly in compliance with the
procedure laid down in All India Services
29
(Discipline & Appeal) Rules, 1965 and
Office Memorandum dated 16.07.2015 issued
by Department of Personnel & Training,
Ministry of Personnel, Public Grievances
and Pensions, Govt. of India. As per the
said Office Memorandum, the ICC firstly
conducted preliminary investigation/inquiry
and then submitted its Preliminary Inquiry
Report dated 05.11.2016 before the
Disciplinary Authority. There is no
provision to provide the copy of
Preliminary Inquiry Report to the
Delinquent. It is also pertinent to mention
here that the Petitioner had been provided
with a copy of the Inquiry Report dated
09.03.2018 submitted by the Inquiring
Authority after conducting regular inquiry
as per the procedure laid down in the All
India Services (Discipline & Appeal) Rules,
1969, with a direction to submit his
written representation or submissions, if
he so desires, against the findings of the
Inquiring Authority. However, instead of
submitting his written representation or
submissions, the Petitioner chose to file
the instant writ petition before this
Hon’ble Court. Thus, it is made clear here
that there was no discrepancy in the
Preliminary Inquiry/investigation by the
ICC. The Report dated 05.11.2016 was a
Preliminary Inquiry Report the purpose of
which is only to satisfy the Disciplinary
Authority as to whether any prima facie
case is made out against the Petitioner.
The Full Court, after considering the
Preliminary Inquiry Report dated
05.11.2016, resolved vide its decision
dated 16.11.2016 to initiate disciplinary
proceedings for major penalty under Rule 8
of the All India Services (Discipline &
Appeal) Rules, 1969 against the
Petitioner.”
30
24. In view of the above, it is clear that
Preliminary Inquiry Report dated 05.11.2016 did not
contain any findings on allegations made against the
petitioner, Preliminary Inquiry Report only opined
that inquiry should be held. The Inquiry Report,
which has been referred to in Section 13 is an
Inquiry Report, which has been submitted by Internal
Complaints Committee after completion of the inquiry.
In the present case, the Inquiry Report by Internal
Complaints Committee is dated 09.03.2018, which has
been admittedly supplied to the petitioner, the right
of appeal given against the recommendation made under
sub-section(2) or sub-section(3) of Section 13 are
appealable under Section 18 of the Act. Section 18
of the Act is as follows:-
“18.Appeal.-- (1) Any person aggrieved from
the recommendations made under sub-section
(2) of section 13 or under clause (i) or
clause (ii) of sub-section (3) of section
13 or subsection (1) or sub-section (2) of
section 14 or section 17 or nonimplementation of such recommendations may
prefer an appeal to the court or tribunal
in accordance with the provisions of the
service rules applicable to the said person
or where no such service rules exist then,
without prejudice to provisions contained
in any other law for the time being in
force, the person aggrieved may prefer an
appeal in such manner as may he prescribed.
31
(2) The appeal under sub-section (1) shall
be preferred within a period of ninety days
of the recommendations.”
25. Thus, the right of appeal is given to an
aggrieved person only when report is submitted under
Section 13 to the employer. Section 13(3)
contemplates the report of Internal Complaints
Committee when it “arrives at the conclusion that the
allegation against the respondent has been proved”.
It is not the case of any of the parties that the
report of the Committee dated 05.11.2016 is the
report where allegation against the petitioner has
been proved. Even under Section 11(1) in the second
proviso, the only contemplation is to make available
a copy of the findings. Thus, when the report in
which there are no findings, parties are not entitled
to have the copy. High Court in its counter
affidavit has pleaded that the Report dated
05.11.2016 was not a report containing any findings
against the petitioner rather only opinion was
expressed that disciplinary inquiry be initiated
against the petitioner. We, thus, are of the view
32
that no prejudice can be held to be caused to the
petitioner by non-supply of the Preliminary Inquiry
Report dated 05.11.2016. The copy of memo of charge
dated 23.02.2017 has been brought on the record,
which also clearly indicates that the charge memo
does not refer to Preliminary Inquiry Report dated
05.11.2016. Thus, no prejudice can be said to have
been caused to the petitioner by non-supply of Report
dated 05.11.2016. We, thus, do not accept the
submission of learned counsel for the petitioner that
due to non-supply of Preliminary Inquiry Report dated
05.11.2016, the proceedings have been vitiated.
26. Before we close, we once more make it clear that
with regard to charge memo dated 23.02.2017, inquiry
conducted by Internal Complaints Committee
culminating into Report dated 09.03.2018, it is open
for the petitioner to raise all pleas of facts and
law before the appropriate authority. This Court has
only considered limited issues as pressed by the
petitioner as indicated above. Apart from above, all
questions and issues are left open to both the
33
parties. Subject to observations and liberty as
above, the Writ Petition is dismissed.
......................J.
( ASHOK BHUSHAN )
......................J.
( NAVIN SINHA )
New Delhi,
August 21, 2019.
