A two-judge Bench of Justice Dr. DY Chandrachud and Justice AS Bopanna while reiterating the importance of protecting the right against sexual harassment has held that there has been a rising trend of invalidation of proceedings inquiring into sexual misconduct, on hyper-technical interpretations of the applicable service rules by the Courts.

Further, the Court also held, "It is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution."

Additional Solicitor General Ms. Madhavi Divan appeared for the Appellants-Union of India, while Advocate Mr. Rabin Majumder appeared for the Respondents during the proceedings before the Court.

An appeal was preferred by the Union of India assailing the judgment of the Division Bench of the Calcutta High Court which upheld the judgment of Single Bench quashing the disciplinary proceedings against the Respondent and reinstating him to his initial post of Head Constable in the BSF.

The Respondent who was a Head Constable with BSF was charged with causing sexual misconduct while he was on duty. He was charged with the offence of 'disgraceful misconduct' under Section 24(a) of the Border Security Force Act, 1968.

An additional Record of Evidence (RoE) was prepared after which the Commandant issued an order to convene a Summary Security Force Court (SSFC). The SSFC found the Respondent guilty of the charge and demoted him to the rank of a Constable as a punishment. This was appealed against before the Director-General of BSF, who commuted the sentence of reduction to the rank of Constable by substituting it forfeiture of service of a few years.

The Respondent filed an appeal before the High Court; the Single Judge set aside the order of punishment on the two grounds –

i) The original RoE was insufficient to prove the charge; and

ii) The Commandant's order for preparing an additional RoE was beyond jurisdiction.

This was upheld by the Division Bench of the High Court.

It was contended by the Appellants before the Supreme Court that High Court took a hyper-technical view while interpreting the provisions of the BSF Act and BSF Rules. It was further argued that the preparation of an additional RoE was not due to insufficient evidence as mentioned under Rule 59 of BSF Rules but only for clarificatory evidence.

Further ASG Ms. Divan pleaded before the Court that there was no provision under the Statute or Rules which prohibit the Commandant from directing the recording of additional evidence.

While the Respondent argued that the power to direct for additional RoE was conferred only on a superior authority convening a Court under Rule 59. Also, as a result of the order of the Commandant, the evidence of the same witnesses was recorded twice without the authority of law.

The two issues which were dealt with by the Court were –

a) Whether the Commandant prior to the amendment of Rule 51 in 2011 had jurisdiction to direct the preparation of an additional RoE; and

b) Whether the finding of guilt which has been recorded by the SSFC stands vitiated in the absence of reasons.

  • Insufficiency of Evidence

In the context of the Appellant's contention that an additional RoE was prepared only for the purpose of clarificatory evidence and not insufficient evidence, the Court observed –

"The additional RoE which was ordered by the Commandant was essentially in the nature of a clarification having regard to the discrepancy about the date of the incident namely, whether it was on 16 or 17 April 2006. This was evidently because the incident took place on the intervening night of 16 and 17 April. As noted above, the respondent himself has in the course of his statutory petition, sought to highlight the events which had transpired in the early hours of 17 April 2006 when he was on duty."

  • Jurisdiction of the Commandant

The Court held that the jurisdiction of the Commandant to call for an additional RoE was well within the law.

Further, the Bench held that if power has been conferred upon the officer ordering the RoE while preparing the RoE himself, it would follow by necessary implication, that such a power is available to the Commandant even when the RoE is ordered to be prepared by another officer.

The purpose of seeking such a clarification is to facilitate the emergence of the truth as regards the genesis of an incident which is the subject matter of the enquiry. The mere fact that a specific provision empowering the Commandant to call for further evidence was introduced in 2011 cannot result in the conclusion that absent such a power being expressly incorporated, the power did not vest in the Commandant, the Court opined.

The Court additionally observed that recognized amendments to service rules as clarificatory in nature would have retrospective operation.

The Court also held, "The submission of the respondent that the Commandant has usurped the power of a superior officer or authority under Rule 59 is patently incorrect."

  • Recording of Reasons

The Bench while relying upon several provisions held that none of the provisions of the BSF Act or BSF Rules either expressly or by necessary implication, confer a duty on the authorities to furnish reasons for punishing the accused.

"The finding of the High Court on the mandate of recording reasons by the SSFC when delivering its finding under Rule 149. Rule 149 does not either expressly or by necessary implication impose a mandate on the SSFC to record reasons when it renders its findings of guilt on a case referred to it," the Court observed.

"The High Court was in error on both the grounds which have weighed in its ultimate decision. There was no error of jurisdiction on the part of the Commandant in seeking clarification in regard to the date of the incident by calling for an additional RoE," the Bench opined.

Further, the Court held, "The High Court, in this case, was not only incorrect in its interpretation of the jurisdiction of the Commandant and the obligation of the SSFC to furnish reasons under the BSF Act 1968 and Rules therein, but also demonstrated a callous attitude to the gravamen of the proceedings. We implore courts to interpret service rules and statutory regulations governing the prevention of sexual harassment at the workplace in a manner that metes out procedural and substantive justice to all the parties."

In the light of these observations, the Court allowed the appeal and set aside the impugned judgment of the High Court.

While doing so, the Court deprecated the rising trend among courts to take a hyper-technical approach in similar cases. The Court observed, "...the existence of transformative legislation may not come to the aid of persons aggrieved of sexual harassment if the appellate mechanisms turn the process into a punishment. It is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution."

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