On 3rd December, 2021, in the case of Union of India vs. M, (“case”), it was held by the Supreme Court of India that courts should avoid hyper-technical interpretation of service rules and mechanism pertaining to workplace harassment otherwise the entire process would become a punishment for the complainant.
Facts– In April, 2006, the Respondent was a head constable in the Border Security Force (“BSF”) and was deployed in the seventy-second battalion. It was alleged that in the early hours intervening the 16th and 17th of April, 2006, the respondent committed sexual assault against a constable (“Complainant”) who was on duty at a crossing. The Complainant submitted a written complaint on 19th April 2006 against the respondent who was his superior. On 2nd May 2006, the Commandant directed the Deputy Commandant to prepare a Record of Evidence (“RoC”) for this offence which was liable to be punished under Section 24 (a) of the BSF Act, 1986 which laid down the provision for ‘disgraceful conduct of an unnatural kind’. The RoE was prepared and submitted to the Commandant. The Commandant later found on scrutiny of the RoE proceedings that there was an inconsistency in the statements of the witnesses regarding the date of the incident. Hence, the Commandant ordered for the preparation of an additional RoC after which, an order was passed to convene a Summary Security Force Court (“SSFC”) for the trial of the Respondent. For the purpose of seeking evidence for the additional RoC, the Complainant stated that the incident took place on 17th April, 2006. The SSFC convened in Malda, West Bengal on August 7, 2006 where they found the Respondent guilty of the charge framed against him and demoted him to the rank of constable as punishment. The Respondent filed a statutory petition under Section 117 of the BSF Act which was heard by the Director-General of the BSF. While the charge was upheld, the Director-General reduced the punishment and replaced the demotion with severe reprimand and forfeiture of a certain number of years for the purpose of pension and promotion.
The Respondent then filed a writ under Article 226 of the Constitution of India at the Calcutta High Court where a Single Judge set aside the order of punishment on the grounds that the RoE was insufficient to prove the charge and the Commandant had gone beyond his jurisdiction by passing the order to prepare an additional RoE. The same was held by the Division Bench which stated that the Commandant did not have the jurisdiction to order for the preparation of an additional RoE and the SSFC or the Director-General did not provide any reasons for holding the Respondent guilty.
Arguments- The State (“Appellant”) submitted the following arguments-
- The High Court had taken a very hyper-technical view and did not appreciate the fact that the BSF Act 1968 and the BSF Rules 1969 are exhaustive enough to handle the present matter.
- It is clear by reading the original RoE along with the additional RoE that it was not a case of insufficient evidence but ‘clarificatory evidence’. The Complainant had mentioned the wrong date of the incident and it was this minor inaccuracy that was sought to be corrected with the additional RoE. There is no provision in the statute or the Rules which forbids the Commandant from asking for a record of further evidence.
- In 2011, Rule 51 (Disposal of Case by Commandant) was amended by adding another clause which clearly provides the Commandant the power to direct the recording of further evidence. In case of any ambiguity, Rule 6 (Case Unprovided For) is there to cover such limitation. It was erroneous on part of the Court to conclude that the Commandant did not have the authority to demand further evidence and he had crossed his jurisdiction by doing so. It has been held by the Hon’ble Supreme Court in Union of India v. Dinesh Kumar (2010) that there are no provisions which mandate the Director-General or the SSFC Court to provide reasons for their decision.
The counsel for the Respondent laid down the following arguments-
- Rule 6 only applies to cases which have not been covered under the Rules but Rule 51 clearly lays down the powers of the Commandant and the power to call for additional evidence has been conferred only on a superior authority convening a court.
- Once a court is convened for the trial of an officer, only such court or the authority presiding it would have the right to demand additional evidence. Because of the order of the Commandant, the same evidence was recorded twice by surpassing the superior authority and the SSFC did not provide any reasons to support their decision of upholding the charges against the Respondent. The High Court was right in observing that a conclusion of guilt cannot be made based on the ipse dixit order of superior officers. A decision shall not hold good as per Article 14 of the Constitution of India if it holds no reason.
Observations of the Court-The Court observed that the direction of an additional RoE was for the purpose of clarification since there was some discrepancy regarding the date of the incident. The respondent himself sought to highlight the events which transpired in the early hours of 17th April 2006 when he was on duty. The Court observed that while the provision did not expressly lay down the scope to ask for further evidence, there was no express restriction on the same.
It was held by the Hon’ble Court in the past that amendments to service rules are clarificatory in nature and thus have retrospective application [S B Bhattacharjee v. S D Majumdar, (2007); O P Lather v. Satish Kumar Kakkar, (2001)]. Hence, the Commandant was well within his rights to ask for an additional RoE and the initial RoE was very comprehensive and did not have insufficient evidence. It has been held in some cases by the Court that the requirement for providing reasons does not apply in every case as far as the findings of a statutory tribunal are concerned. Rule 149 of the BSF Rules which lays down the provisions for recording findings does not impose any mandate on the SSFC to record any reasons. The Court also held that the Director-General was well within his rights to reduce the quantum of punishment as per Section 48 which talks about the enforcement of punishment awarded by Security Force Courts.
The Court also commented that there was a rising trend of invalidating proceedings inquiring into sexual misconduct on the basis of ‘hyper-technical interpretation’ of service rules and gave the example of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 which lays down a mechanism to address harassment at the workplace. The Court stated that the legislative intent of such statutes wouldn’t come through if the appellate mechanism makes the entire process seem like a punishment for the complainant. The courts should be mindful of the power dynamics at the workplace and the trauma and difficulty a victim of workplace harassment faces. Courts should uphold the spirit of right to protection against sexual harassment which is a part of right to life and dignity under Article 21 of the Indian Constitution and interpret service rules and regulations pertaining to sexual harassment at the workplace in such a way that procedural and substantive justice is provided to the victims.
Final Decision– Taking into consideration the facts of the case and the arguments presented, the Court allowed the appeal and set aside the impugned orders of the Single Judge and Division Bench of the Calcutta High Court.
– Shagnik Bhattacherjee, Legal and Compliance – POSH at Work & Rhea Bazaz, Final Year Student, Symbiosis Law School, Pune