Calcutta HC Pulls Up State Police For Rampant Child Marriages

In a recent, remarkable and righteous decision, the Calcutta High Court just recently in ‘Court In Its Own Motion In Re: Contagion of Covid-19 Virus In Children Protection Homes (Through video conference) in W.P. 5327 (W) of 2020 while taking strict stock of flagrant child rights violations amidst the lockdown pulled up the State police on several accounts. Taking note of the affidavit of the Home Secretary, the Calcutta High Court observed that while there have been no instances of child trafficking, however, child marriages during this period in most of the districts have been rampant. This cannot be taken for granted and so the Calcutta High Court rightly took serious note of it!

To start with, we see that this latest, landmark and extremely laudable judgment delivered by a two Judge Bench of Calcutta High Court comprising of Justice Harish Tandon and Justice Soumen Sen on June 25, 2020 sets the ball rolling by first and foremost observing that, “The affidavit filed by the Additional Chief Secretary, Home Affairs Department and Home Secretary, report filed by the Secretary, Women and Child Development and Social Welfare Department and the affidavit filed by the Secretary, Health Department in Court today are taken on record.”

To put things in perspective, it is then pointed out that, “In the affidavit filed by the Home Secretary, district-wise details of the cases in relation to violation of child rights of all forms till 15th June, 2020 has been disclosed. Contrary to the earlier report, this affidavit spells out in detail and to the satisfaction of this Court the nature of the violation of child rights and the steps taken by the police authorities in connection with such reported cases. Most of the reports, state that there have been no instance of child trafficking, however, child marriage during this period in most of the districts have been rampant and with the assistance of the DALSA and the police authorities many of such child marriages could be prevented.”

Truth be told, the Bench then minces no words to hold that, “This alarming rise of child marriages during this lockdown period has given us a strong impression that these child marriages may be in the garb of child trafficking and we, accordingly, direct the Superintendent of Police of every districts to investigate into the cases regarding child marriage and to find out if such child marriages are for economic consideration or under the garb of child trafficking. It is needless to mention that the perpetrators of these child marriages should be dealt with in accordance with law and cases should be registered against them without any delay.”

While elaborating further, it is then pointed out in this judgment that, “The report in relation to North 24-Parganas, inter alia, has stated that cases of “other violation of child rights” are 124. We need to know the nature of such “other violation” and we direct the Home Secretary to file a report disclosing such “other violation of child rights” and the steps taken by the police against the violators.”

To be sure, it is then noted with concern by the Bench that, “We have received reports from the District Judges and the POSCO Courts that the investigating officers in most of the districts are delaying in production of the victim and/or filing application for recording of statement under Section 164 of the Criminal Procedure Code which only can enure to the benefit of the perpetrators of the crime.”

As it turned out, the Bench then directed that, “We direct the Superintendent of Police of all the districts to ensure that the victims are produced immediately and not later than 48 hours before the Magistrates for recording of statement under Section 164 of the Criminal Procedure Code. All delays attributable to the prosecution should be immediately addressed and all attempts should be made so that the progress of the trial takes place without any delay.”

While conceding the difficulties faced by the police, the Bench then states that, “We understand that during the lockdown period police officers and the public prosecutors are facing difficulty. But we find no reason for not ensuring the recording of statement of the victims under Section 164 of the Criminal Procedure Code.”
It is then also pointed out that, “We have received report from the District Judges which show that after our earlier order, in most of the cases statements under Section 164 of the Criminal Procedure Code has been recorded.” Also, it is then directed that, “The Superintendent of Police of all the districts must also ensure that there is no delay in investigation of the cases relating to child rights violation and charge-sheet are filed in time.”

Going forward, it is then pointed out that, “We have drawn attention to the learned Advocate General the report filed by the Superintendent of Police, Cooch Behar dated 22nd June, 2020 wherefrom it appears that 40 children have been recovered in the said district but apparently no FIR had been lodged against the perpetrators of the crime. Learned Advocate General has assured us that he would personally look into the matter and ensure that in all the districts immediate steps are taken for registration of FIR, once a complaint is received.”

As we see, the Bench then directs that, “We call for a report as to the steps taken by the police authorities in the district of Cooch Behar regarding the recovery of children from 1st January, 2020 till 22nd June, 2020.”

More significantly, while dwelling on the deficiencies, the Bench then observes that, “In one of our earlier order dated 21st April, 2020, we have recorded that the report shared by the Visitors and Principal Magistrates of the J.J.B.s and Chairperson of the C.W.C. would show the J.J.B.s are functioning under tremendous stress and the infrastructure is extremely inadequate. We have recently received reports from the Principal Magistrates of all the J.J.B.s functioning in the State, wherefrom we find the following deficiencies:

i.                  No chamber for the Principal Magistrate and other members of the Committee,

ii.               Lack of office space,

iii.            No separate room for vulnerable child witnesses,

iv.            No separate entrance for the C.C.L. and vulnerable witnesses,

v.               No official vehicle is assigned to the Principal Magistrate,

vi.            Lack of broad-band connection and inconsistent bandwidth,

vii.         Lack of hardware and software infrastructure required for audio video linkage,

viii.      Inadequate and/or no support staff like bench clerk, lower division clerk-cum-typist, counsellor etc.,

ix.            No separate provision of wash-room for female staff/members/lady officers,

x.               No separate room for counselling for the C.C.L.s and for sitting of social worker members,

xi.            Lack of maintenance of public toilets and wash-room of Principal Magistrates.”

It is then clarified that the aforesaid list is only illustrative but not exhaustive.

Having said this, the Bench then laments that, “We have time and again apprised the Secretary, Women and Child Development and Social Welfare Department, but it appears from the report that the situation has not improved and the J.J.B.s in almost all the districts are facing infrastructural deficiencies which certainly impedes the functioning of the J.J.B.s, as a result whereof the children are suffering.”

Of course, the Bench then notes with some satisfaction that, “The learned Advocate General has assured us that he would immediately take up the issue with the Home Secretary and on the adjourned date would apprise as to the steps taken to remove such deficiencies.”

As things stand, the Bench then says that, “The report filed by the Secretary, Women and Child Welfare Department discloses few cases of follow up action by way of phone call interventions which have brought succor to the family of the child and we hope that same kind of interventions would be made as and when occasion arises for the other children to safe-guard their interest. The said report also discloses the guidelines and the nature of information sought for as a follow-up action of children restored to families since March, 2020.”

What follows next is that the Bench then says that, “We would request the Secretary to submit a report afresh with regard to few cases of post-restoration follow-up of children to family on the adjourned date.”

Furthermore, the Bench then hastens to add that, “The report filed by the Secretary, Department of Health and Family Welfare shows that 75 children of the migratory workers have been found to be Covid-19 positive and subsequently they were referred to designated covid hospitals, samples were collected from asymptomatic children of migratory workers and 43 of such samples were reported as positive. Those 43 children were admitted at designated covid hospitals and as of now, those children have been discharged from such hospitals after recovery. These 43 positive children were mentioned as higher referral in the earlier report. However, considering the safety of the children we would like to know if any random test was carried out of the children of the migratory workers and if so, disclose the result of such random test with specific comment as to whether anyone of them tested positive, save and except the particulars already disclosed.”

What’s more, the Bench then notes seriously that, “We have recently come across a newspaper report from the Ananda Bazar Patrika wherefrom it appears that one female minor girl belonging to North 24 Parganas has been recently recovered by the Maharashtra police with the help of the N.G.O.s. The trafficking took place in the year 2018 and although complaints were made against three traffickers, but it is reported that no attempt was made by the Bagda Police Station in recovering the female child.”

To say the least, the Bench then observes that, “We have shared the news item with the learned Advocate General. We call for a report to be filed with regard to the investigation of the said child trafficking case from the date of lodging of the complaint till date, together with an explanation for not being able to recover the child until intervention of the Maharashtra police.”

Not stopping here, the Bench then further observes that, “We also brought it to the attention of the learned Advocate General that 13 C.C.L. boys from Dhruba Ashram Observation Special Home had escaped and was culminated in registration of FIR vide Belghoria Police Station case no. 138 of 2020 dated 8th March, 2020 under Section 363 of the Indian Penal Code. Two of such C.C.L. boys have surrendered but the fate of the 11 C.C.L. boys are still unknown.”

While expressing unhappiness with the police functioning, the Bench then says in simple and straight language that, “We are not happy with the investigation. The Police has not yet been able to recover the said 11 C.C.L. boys. We call for a detailed report with regard to the said police station case and progress of the investigation, on the adjourned date.”

Finally, it is then held that,“
The matter stands adjourned till 2nd July, 2020 (at 2.00 P.M.). At the request of the learned Advocate General we shall take up compliance of our directions in relation to districts of Cooch behar, Darjeeling, Jalpaiguri, Kalimpong and Malda on the next date. A video conference shall be held with the Secretary (Social Welfare) under the Andaman and Nicobar Administration, Port Blair and all stake holders are directed to be present through video linkage.”

To conclude, the sum and substance of this notable order till now by a two Judge Bench of Calcutta High Court even though it has yet to be finally pronounced is that child marriage has to be taken most seriously. It cannot be taken for granted. There has to be zero tolerance for child marriages which is an old social evil. Those who dare to indulge in it in any manner must be made to face the music of law under all circumstances!  This explains why the Calcutta High Court has gone so minutely into this! Very rightly so!

Sanjeev Sirohi

Person Suffering From Covid-19 Cannot Be Expected To Produce Proof For Free Treatment In Hospital Under EWS Category: Bombay HC

In a big respite for Covid-19 patients which has ostensibly given them a good and genuine reason to smile is the recent, remarkable and righteous decision delivered by the Bombay High Court just recently on June 26, 2020 in Abdul Shoeb Shaikh and Ors. Vs. K.J. Somaiya Hospital and Research Center and Ors. in WP-LD-VC No. 54 of 2020 in exercise of its ordinary original civil jurisdiction and which was conducted in chamber – video conference  observed categorically in no uncertain terms that a person suffering from Covid-19 who belongs to the economically weaker section of the society cannot be expected to produce documentary proof before seeking admission in a hospital for free treatment. It must be mentioned here that a Division Bench of Bombay High Court of Justice RD Dhanuka and Justice Madhav Jamdar were hearing via video conference a writ petition filed by seven residents of a slum rehabilitation building in Bandra who were charged Rs. 12.5 lakh by KJ Somaiya hospital for Covid-19 treatment in April. No wonder that the petitioners ultimately got the respite which they so desperately wanted from the Bombay High Court!

To start with, the ball is set rolling first and foremost in para 1 wherein it is observed that, “We have heard the learned counsel appearing for the parties at length. The undisputed position in the matter is that the Scheme prescribed under Section 41AA of the Maharashtra Public Trust Act  empowering the Charity Commissioner and the State Government to issue directions in respect of hospitals to earmark certain beds for weaker sections of the people under Section 41AA(4)(c) and for indigent person under Section 41AA(4)(b) is applicable to the respondent no. 1 Trust. One of the question raised by the petitioners in this Writ Petition is that though the respondent no. 1 was required to reserve 10% beds for weaker section of the people and 10% beds for indigent persons out of the operational beds no such beds are provided. Out of 90 beds under those categories which were required to be reserved for the persons belonging to weaker section of the people and indigent persons in toto, all such beds had not been made available. The record indicates that only three patients were admitted by the respondent no. 1 in the month of March 2020 out of 90 beds earmarked for indigent persons and persons belonging to the weaker section of the people under Section 41AA(4)(c) and (b) respectively.”

Needless to say, para 2 of the judgment then notes that, “It is the case of the respondent no. 1 that the petitioners did not belong to any of these categories nor the petitioners produced any record to prove that the petitioners would fall under those categories. It is vehemently urged by Mr. Dwarkadas, senior counsel for the respondent no. 1 that it was for the petitioners to produce a certificate of income from the Tehsildar or a certificate from the Social Welfare Officer proving income of the petitioners. On the other hand, it is the case of the petitioners that the petitioners having suffered from a covid-19 and required immediate medical help were not required to produce such certificate at the threshold while seeking admission in the hospital.”

To be sure, it is then envisaged in para 3 that, “A perusal of the report submitted by the Joint Commissioner indicates that the report submitted is on the basis of documents called for and submitted by the respondent no. 1 and without visiting the premises and inspecting all the records. The affidavit in reply filed by the Charity Commissioner also clearly indicates that only three patients have been treated under the hospital scheme since lockdown till the end of May 2020. Petitioners claims to be staying in slums.”

While dwelling on the relevant questions for consideration here, it is then stipulated in para 4 that, “Whether it was the duty of the Management of respondent no. 1 to enquire whether the persons seeking admission in the respondent no. 1 hospital were falling under the category of Section 41AA(4)(b) and (c) or not or whether such patients were required to produce at the threshold the certificates of Tehsildar and Social Welfare Officer before seeking admission in the situation faced by the petitioners for patient of covid are some of the questions which require consideration in this matter.”

Most crucially, it is then very rightly underscored in para 5 that, “In our prima-facie view a person who is suffering from the disease like Covid-19 is not expected to produce a Tehsildar certificate or certificate from Social Welfare Officer before seeking admission in the hospital for seeking benefits under Section 41AA(4)(c) and (d). We are not inclined to accept the submission made by the learned senior counsel for the respondent no. 1 that unless such certificate is produced by the petitioners at the threshold, the respondent no. 1 is not liable to admit any such patient under those categories in the precarious situation prevailing at the date of admission of the petitioners.”

Going forward, it is then also pointed out in para 6 that, “We also noticed that the State Government was required to issue a Notification dated 21st May, 2020, providing the rates for treatment of such patients and for other diseases in view of the grievances regarding exorbitant amount of money charged by Healthcare providers causing hardship to public in general during Covid-19 pandemic. Government has also considered the provisions of Section 41AA of the B.P.T. Act in the said notification.”

Be it noted, para 8 then states that, “Considering the facts of this case, we are directing the respondent no. 1 to deposit a sum of Rs. 10,06,205/- in this Court within two weeks from today.”

Finally, it is then held in the last para 10 that, “This order will be digitally signed by the Personal Assistant of this Court. Associate of this Court is permitted to forward the parties copy of this order by e-mail. All concerned to act on digitally signed copy of this order.”

To sum up, the Bombay High Court has in a humanitarian gesture very rightly held in this latest, landmark and extremely laudable judgment that a person suffering from Covid-19 who belongs to the economically weaker section of the society cannot be expected to produce documentary proof before seeking admission in a hospital for free treatment. In such cases, they must be granted exemption from strict rules! This is imperative to ensure that they don’t suffer endlessly and end up getting more troubled for getting admitted in a hospital for free treatment!

Sanjeev Sirohi

While 1st Rank Cannot Claim Right To Post, Appointment Of 2nd Ranker By State Also Illegal, Arbitrary, Violative Of Art. 14: Utt. HC

 

                 It is most heartening to note that the Uttarakhand High Court has just recently on June 23, 2020 in a latest, landmark and extremely laudable judgment titled Professor GS Tomar Vs State of Uttarakhand and others in Writ Petition (S/B) No. 423 of 2019 most remarkably and most rightly held that while the holder of first rank in a selection process cannot claim the right to be appointed, the appointment of the second-ranker is arbitrary and violative of Article 14 of the Constitution. The Chief Justice-led Bench held that the failure of the respondent-state authorities to intimate the petitioner that he had stood first in the merit-list of selected candidates, pursuant to the selection process undertaken in terms of the advertisement issued in March 2015 and in offering appointment to the second candidate in the merit list is ex-facie arbitrary and illegal. Very rightly so!

To start with, this latest, landmark and extremely laudable judgment authored by Chief Justice Ramesh Ranganathan for himself and Justice Ramesh Chandra Khulbe sets the ball rolling by first and foremost pointing in para 1 that, “The jurisdiction of this Court has been invoked by the petitioner herein seeking a writ of mandamus directing respondent no. 1 – Additional Chief Secretary, Technical Education, Government of Uttarakhand to issue an order appointing the petitioner as the Director of the Govind Ballabh Pant Institute of Engineering and Technology, Pauri Garhwal (for short the “GBPIET”) since he had secured the highest marks based on the recruitment process that was completed by the Government of Uttarakhand; in the alternative, for a writ of mandamus directing the State Government to conduct interviews for the recruitment process initiated earlier, for which screening of applications had been completed and the selection process is underway, within a specified time frame under the supervision of the Court; for a writ of mandamus directing the State Government to initiate appropriate inquiry and consequent disciplinary proceedings against errant officials/individuals, who were responsible for having denied the petitioner his rightful due of being appointed as the Director way-back in the year 2016, and yet again in the year 2019, under the supervision of this Court; and for a writ of certiorari to quash the government decision to invite more applications for the post of Director, Pauri Engineering College as the same is patently in violation of the law.”

While dwelling on the facts of the case, it is then stated in para 2 that, “Facts to the limited extent necessary, are that an advertisement was issued in March, 2015, inviting applications from eligible candidates for appointment to the post of the regular Director of the GBPIET, Pauri Garhwal. The petitioner and others submitted their applications pursuant thereto. The petitioner had also applied for the post of Director, Tehri Hydro Development Corporation Institute and was selected and appointed to the said post in February 2016. The tenure of Office of the Director, THDC Institute was also for a period of three years. On conclusion of the selection process, for appointment to the post of Director, GBPIET, Professor SP Pandey was appointed as its Director for a period of three years from August, 2016 till August, 2019.”

Truth be told, it is then brought out in para 3 that, “In his affidavit dated 04.09.2019, filed in support of this Writ Petition, the petitioner alleges that, though he stood first in the merit list of candidates selected for the post of Director, GBPIET, he was neither intimated of his result nor was he offered appointment to the post of Director, GBPIET and, instead, Professor S.P. Pandey who stood second in the merit list, was appointed as its Director in August, 2016.”

While continuing in the same vein, it is then stated in para 4 that, “To continue the narration further, even before completion of his three year tenure as Director, GBPIET, Professor SP Pandey resigned from the said office and left on 03.02.2018. The second respondent-Institute was then placed under the control of an In-charge Director and a fresh advertisement was issued (hereinafter referred as the ‘second advertisement’) on 02.06.2018 inviting applications afresh for the post of Director, GBPIET. The petitioner again applied and participated in the selection process held in terms of the second advertisement. While 80 marks were allotted for several other criteria, 20 marks were allotted for interview. The petitioner was awarded more than 64 marks from out of 80, and the next most meritorious candidate, i.e. Prof RB Patel, was awarded only 31.42 marks.”

To be sure, it is then pointed out in para 5 that, “Mr Abhijay Negi, learned counsel for the petitioner, would contend that, if interviews had been held and the petitioner had been awarded zero marks out of 20, and Prof RB Patel had been awarded 20 marks out of 20, even then it is the petitioner who would have stood first in merit, and ought to have been appointed as the Director, GBPIET. The fact, however, remains that the selection process, pursuant to the second advertisement dated 02.06.2018, was discontinued, and a third advertisement was issued on 23.01.2019.”

As it turned out, after hearing both the parties, the Bench most importantly then minced no words in para 14 to clearly convey that, “Failure of the respondents to intimate the petitioner that he stood first in the merit-list of selected candidates, pursuant to the selection process undertaken in terms of the advertisement issued in March, 2015, and in offering appointment to the second candidate in the merit list, is ex-facie arbitrary and illegal. The respondents’ contention that the petitioner had already been appointed as the Director of the THDC Institute (another State Government Institution) by then, did not absolve them of their obligation to inform the petitioner that he was entitled to be appointed as the Director, GBPIET for the choice, whether to continue as the Director, THDC Institute or to join the office of Director, GBPIET, was for the petitioner to make, and not for the respondents to impose. If the petitioner had been intimated of his selection, it was then open to him to exercise his option to either resign as the Director, THDC Institute and join the office of Director, GBPIET, or to continue as the Director of the THDC Institute. By their failure to so intimate the petitioner, the respondents have acted in violation of Article 14, as the petitioner has been arbitrarily and illegally deprived of his right to be appointed as the Director, GBPIET though he stood first in the order of merit.”

Needless to say, the Bench then also makes it clear in para 20 that, “It is true that no candidate, by mere selection, has a legal right to be appointed. In terms of Article 16 of the Constitution of India, he has only a right to be considered for selection and appointment. (Pitta Naveen Kumar and Ors. v. Raja Narasaiah Zangiti and Ors. (2006) 10 SCC 261). Ordinarily, notification of posts is merely an invitation to the qualified candidates to apply for recruitment and, on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so provide, the State is under no legal duty to fill up all or any of the vacancies. Notification of vacancies for appointment, and a candidate being found fit for selection, does not mean that the successful candidate can claim to be appointed as of right. (Laxmibai Kshetriya v. Chand Behari Kapoor and Ors. (1998) 7 SCC 469; Shankarsan Dash (1991) 3 SCC 47; State of Bihar and Ors. v. Md. Kalimuddin and Ors. (1996) 2 SCC 7; Mahadev Appa Rao (2010) 7 SCC 678; and Punjab State Electricity Board and Ors. v. Malkiat Singh (2005) 9 SCC 22). By his mere selection, the candidate acquires no indefeasible right for appointment even against existing vacancies. (All India SC & ST Employees’ Association and Anr. v. A. Arthur Jeen and Ors. (2001) 2 SCR 1183; Aryavrat Gramin Bank v. Vijay Shankar Shukla (2007) 12 SCC 413; State of Rajasthan and Ors. v. Jagdish Chopra (2007) 8 SCC 161; State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors. (2008) 1 SCC 456 and Asha Kaul (Mrs.) and Anr. v. State of Jammu and Kashmir and Ors. (1993) 2 SCC 573).”

To put things in perspective, it is then made absolutely clear in para 22 that, “Ordinarily a Superior Court, in the exercise of its powers of judicial review, would not interfere with the decision of the employer in making appointment, unless its action or inaction is found to be so arbitrary as to offend Article 14 of the Constitution of India. (Aryavrat Gramin Bank v. Vijay Shankar Shukla (2007) 12 SCC 413). While a candidate, who finds a place in the select list, may have no vested right to be appointed to any post, in the absence of any specific rules entitling him thereto, he may still be aggrieved by his non-appointment if the authority concerned acts arbitrarily or in a mala fide manner (UT of Chandigarh v. Dilbagh Singh AIR 1993 SC 16 and Mahadev Appa Rao (2010) 7 SCC 678).”

To sum up, this well balanced, well reasoned and well analyzed judgment leaves no room for doubt that while 1st rank cannot claim right to post, appointment of 2nd ranker by State also illegal, arbitrary and violative of Article 14 of the Constitution! All courts must follow this! There can be no denying or disputing it!

Sanjeev Sirohi

Employees Cannot Be Fired Merely For Being Homosexual Or Transgender: US SC

In a remarkable and righteous decision, the US Supreme Court in Gerald Lynn Bostock Vs Clayton County, Georgia which is Certiorari To The United States Court Of Appeals For The Eleventh Circuit No. 17-1618 and which was delivered on June 15, 2020, has laid down cogently, clearly and convincingly that employees cannot be fired from the jobs merely because of their transgender and homosexual identity. It also lays down in simple and straight language that, “An employer who fires an individual merely for being gay or transgender defies the law.” Very rightly so!

To put things in perspective, the majority judgment was authored by Justice Neil McGill Gorsuch in which Roberts, C.J., and Ginsburg, Breyer, Sotomayor and Kayan, J.J. joined. But Justices Alito, Thomas and Kavanaugh dissented. The Court by a 6-3 majority held that Civil Rights Act of 1964 prohibiting workplace discrimination on the basis of sex also protects employees based on their sexual orientation or gender identity. It must be mentioned here that the Civil Rights Act explicitly prohibits discrimination of any kind in the workplace on the basis of race, colour, religion, sex or national origin.

Be it noted, in this case which arises out of a petition filed by Bostock who is a long-time employee was allegedly fired by his employer simply for being homosexual or transgender. The issue that was considered by the Court was whether the Act prohibits discrimination on the ground of sexual orientation or gender identity? This key issue was examined in detail by the US Supreme Court.

To start with, it is first and foremost most explicitly stated at the outset that, “Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

As it turned out, it is then clarified in the next para that, “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender – and allegedly for no reason other than the employee’s homosexuality or transgender status.”

To say the least, it is then mentioned in this judgment about the different cases of discrimination that, “Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work. After a decade with the county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county employee. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired.”

While continuing in the same vein, it is then envisaged that, “Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left telling her “this is not going to work out”.”

Importantly, the next important point that must be stated here of this notable judgment is this: “From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straight forward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee – put differently, if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989) (plurality opinion).”

More importantly, it is then rightly stated next in this commendable judgment that, “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or taken an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

Equally importantly, it is then also held that, “When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. An employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.”

Most importantly, in the concluding part, it is very rightly underscored that, “Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

No doubt, the US Supreme Court by this latest, landmark and extremely laudable judgment has prima facie made it absolutely clear that employees cannot be fired merely for being homosexual or transgender. All the employers must always adhere to this extremely commendable judgment in totality. The employers must refrain from indulging in discrimination against any employee just for being homosexual or transgender as it has got just nothing to do with the job at hand and every person has a right to be either homosexual or transgender and no one can have an unfettered right to interfere in that! There can be no denying or disputing it!

Sanjeev Sirohi

MP HC Impose Planting Of Saplings As A Bail Condition

In an interesting, refreshing and fresh development, the Madhya Pradesh High Court Bench at Gwalior in a notable judgment titled Tilakraj Rajoriya Vs State of M.P. in M.Cr.C. No. 11643/2020 that was delivered on June 24, 2020 has in its recent order while granting bail to a person accused of assaulting a minor girl with intent to outrage her modesty has directed him to plant saplings along with tree guard, as one of the conditions for bail. The accused had been booked under Sections 354 of the IPC and 7/8 of POSCO Act. The court allowed his bail application in view of the Covid-19 situation, on his furnishing a personal bond of Rs 50,000/- in addition to the condition to plant saplings.

To start with, this latest, landmark and extremely laudable judgment authored by Justice Anand Pathak of Gwalior Bench of Madhya Pradesh High Court sets the ball rolling after noting that the matter is heard through video conferencing that, “The applicant has filed this second bail application u/S. 439 Cr.P.C for grant of bail. Applicant has been arrested on 22.01.2020 by Police Station Dehat, District Ashoknagar in connection with Crime No. 27/2020 registered for offence under Sections 354 of IPC and 7/8 of POSCO Act. His earlier bail application was dismissed as withdrawn vide order dated 12.02.2020 passed in MCRC.No.6214/2020.”

To put things in perspective, it is then brought out that, “It is the submission of learned counsel for the applicant that false case has been registered against him and he is suffering confinement since 22.01.2020 whereas charge-sheet has already been filed. Now, applicant learnt the lesson hard way and would not commit the same nature of offence in future and would not involve in any criminal activity and become a better citizen. He undertakes to cooperate in trial and would not be a source of embarrassment or harassment to her and her family in any manner and would not move in the vicinity of prosecutrix. Applicant who is young/middle aged/able bodied responsible citizen undertakes to become corona warrior for social cause looking to the Covid-19 Pandemic situation. He further undertakes to perform community service and serve the national cause by making contribution in PM Care Fund and install Arogya Setu App. On these grounds, prayer for bail has been made.”

As anticipated, the counsel for the State opposed the prayer and prayed for dismissal of bail application as pointed out also in this judgment. After hearing the learned counsel for the parties at length through video conferencing and considering the arguments advanced by them, it is then pointed out that, “Considering the facts of the case in detail, however, considering the fact that in view of Covid-19 pandemic, without commenting on the merits of the case, it is hereby directed that the applicant shall be released on bail on his furnishing personal bond of Rs. 50,000/- (Rupees Fifty Thousand only) with one solvent surety of the like amount to the satisfaction of trial Court and that he will have to install Arogya Setu App, if not already installed. He will not move in the vicinity of prosecutrix and would not extend any threat, intimidation or allurement to the victim or her family. He will not involve in any criminal activity otherwise benefit of this bail application shall be immediately withdrawn.”

As it turned out, it is then envisaged that, “In view of COVID-19 pandemic, the jail authorities are directed that before releasing the applicant, his preliminary Corona Virus test shall be conducted and if he is found negative, then the concerned local administration shall make necessary arrangements for sending the applicant to his house, and if he is found positive then the applicant shall be immediately sent to concerned hospital for his treatment as per medical norms. If the applicant is fit for release and if he is in a position to make his personal arrangements, then he shall be released only after taking due travel permission from local administration. After release, the applicant is further directed to strictly follow all the instructions which may be issued by the Central Govt./State Govt. or Local Administration for combating the Covid-19. If it is found that the applicant has violated any of the instructions (whether general or specific) issued by the Central Govt./State Govt. or Local Administration, then this order shall automatically lose its effect, and the Local Administration/Police Authorities shall immediately take him in custody and would send him to the same jail from where he was released.”

Be it noted, it is then laid down explicitly and elegantly that, “This order will remain operative subject to compliance of the following conditions by the applicant:-

1.  The applicant will comply with all the terms and conditions of the bond executed by him;

2.  The applicant will cooperate in the investigation/trial, as the case may be;

3.  The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be;

4.  The applicant shall not commit an offence similar to the offence of which he is accused;

5.  The applicant will not seek unnecessary adjournments during the trial; and

6.  The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be.

7.  The applicant will inform the SHO of concerned police station about his residential address in the said area and it would be the duty of the Public Prosecutor to send E-copy of this order to SHO of concerned police station for information.

8.  Applicant shall deposit Rs. 2500/- within a month in PM CARES Fund having Account Number : 2121PM20202, IFSC Code: SBIN0000691, SWIFT Code : SBININBB104, Name of Bank & Branch : State Bank of India, New Delhi Main Branch from the date of release of applicant.

9.  The applicant through his counsel undertakes that applicant shall register himself with the District Magistrate concerned [Ashoknagar] as “Covid-19 Warriors” by entering his name in a Register named as COVID-19 WARRIOR REGISTER to be maintained in the o/o the concerned DM who in turn shall assign work to applicant of Covid-19 disaster management at the discretion of District Magistrate, by taking all prescribed precautions. The nature, quantum and duration of the work assigned is left to the wisdom of District Magistrate, concerned. This Court expects that the applicant shall rise to the occasion to serve the society in this time of crises to discharge his fundamental duty of rendering national service when called upon to do so, as per Article 51-A(d) of the Constitution.

10.                   As per the undertaking given by learned counsel on behalf of the applicant, it is hereby directed that appellant shall plant 1 sapling (either fruit bearing trees or Neem and Peepal) alongwith tree guards or has to make arrangement for fencing for protection of the trees because it is the duty of the appellant not only to plant the saplings but also to nurture them. He shall plant saplings/trees preferably of 6-8 ft., so that they would grow into full fledged trees at an early time. For ensuring the compliance, he shall have to submit all the photographs of plantation of trees/saplings before the concerned trial Court alongwith a report within 30 days from the date of release of the applicant. The report shall be submitted by the appellant before the trial Court concerned on 1st of every month.”

Importantly, it is then directed by the Court that, “It is the duty of the trial Court to monitor the progress of the trees because human existence is at stake because of the environmental degradation and Court cannot put a blind fold over any casualness shown by the appellant regarding progress of the trees and the compliance made by the appellant by placing a short report before this Court every quarterly (every three months), which shall be placed under the caption “Direction” before this Court. Any default shall disentitle the appellant from benefit of bail.”

More importantly, it is then further directed that, “The appellant is directed to plant these saplings/trees at the place of his choice, if he intends to protect the trees on his own cost by providing tree guards or fencing, for which appellant shall have to bear necessary expenses for plantation of the trees and their measures for safeguard.”

Most importantly, it is then also made clear that, “This direction is made by this Court as a test case to address the Anatomy of Violence and Evil by process of Creation and a step towards Alignment with Nature. The natural instinct of compassion, service, love and mercy needs to be rekindled for human existence as they are innately engrained attributes of human existence. It is not the question of Plantation of a Tree but the Germination of a Thought.”

Furthermore, it is then held that, “The District Magistrate concerned is directed to intimate this Court in case condition No. 9 is not complied with and on receipt of any such intimation, Registry is directed to list the matter before appropriate bench as PUD.”

Finally, it is then held that, “E-copy of this order be sent to the trial Court concerned for compliance, if possible, for the office of this Court. Certified copy/e-copy as per rules/directions.”

In conclusion, it may well be said that the exemplary condition imposed for bail of planting saplings along with tree guard is quite laudable and must be applauded in no uncertain terms. Just recently, we also saw the Orissa High Court imposing similar condition of planting hundred saplings as a condition of bail. This itself proves that it is a good, bold and innovative way of imposing conditions for bail by which our environment also will gain immeasurably! No denying it!

Sanjeev Sirohi

Bar On Certain Matters To Be Entertained As PIL Does Not Preclude Court From Doing So In Exercise Of Inherent Power In Public Interest: Uttarakhand HC

             In a latest, landmark and extremely laudable judgment titled Soni Beniwal Vs State of Uttarakhand and others in Writ Petition (PIL) No. 191 of 2019, the Uttarakhand High Court has just recently on June 18, 2020 held in no uncertain terms that even if there is a bar on certain matters to be taken as PIL, there is always discretion available with the Court to do so in exercise of its inherent powers. Moreover, the Chief Justice-led Bench has also stated explicitly that even persons who are debarred under the High Court rules can be entertained to file public interest petitions where allegations of misappropriation of public funds by a government-aided college, receiving funds both from the State Government and the University Grants Commission, are involved. Very rightly so!

To start with, this noteworthy judgment authored by Uttarakhand Chief Justice Ramesh Ranganathan for himself and Justice Ramesh Chandra Khulbe after hearing the lawyers from both sides in considerable detail sets the ball rolling by observing first and foremost in para 2 that, “The petitioner has invoked the jurisdiction of this Court seeking a writ of mandamus directing the State of Uttarakhand to proceed further with the investigation on the FIR dated 28.03.2017; a mandamus directing the State of Uttarakhand to recover the excess amount, as pointed out in the Audit conducted by the Auditors of the Comptroller and Auditor General as well as the State of Uttarakhand, from the personal account of the sixth respondent, who was then the acting Principal of the College, as also the fifth respondent, who was the Secretary of the M.K.P. Society; and a mandamus directing the Director General of Police to constitute a Special Investigation Team to investigate into the gambit of corrupt practices currently underway in the respondent-College, as outlined in the Audit Reports; and to probe the reasons why no action was taken in the F.I.R. lodged in the year 2017.”

While elaborating further, it is then mentioned in para 3 that, “We had, by our order dated 02.01.2020, granted time to the learned Standing Counsel, appearing on behalf of the State Government, to ascertain whether or not a Final Report, after  further investigation was caused under Section 173(8) Cr.P.C, had been filed before the Magistrate till date. Subsequently, by our order dated 20.03.2020, while taking the counter affidavit filed on behalf of respondents 1 and 4 on record, we noted the request of Mr. C.S. Rawat, learned Additional Chief Standing Counsel, for the matter to be taken up on 25.03.2020 to enable him to ascertain what action the Government intends to take pursuant to its admission, in the counter affidavit, that respondents 5 and 6 had indulged in grave and serious irregularities, including mis-appropriation of public funds.”

What is then brought out in para 4 is that a counter-affidavit has now been filed on behalf of the fifth respondent raising objections both to the maintainability of the Writ Petition, as also on merits. Now coming to para 6, it states that, “The counter-affidavit, thereafter, states that the inquiry team had indicated that the prescribed procedure was violated in purchase of items/equipment from the UGC grant; at the relevant time, the sixth respondent was the Principal and the fifth respondent was the Secretary, who were equally responsible; a letter was addressed to the Registrar, Firms, Societies and Chits, Uttarakhand by the Additional Chief Secretary, Higher Education regarding irregularities in purchase of items/instruments from UGC funds; and, as per the findings in the Inquiry Report, respondents 5 and 6 were equally responsible for violation of the Rules and norms.”

More crucially, it is then stated in simple and straight language in para 8 that, “The afore-extracted findings of the Inquiry Report are not from the affidavit filed in support of the Writ Petition, but from the counter-affidavit filed on behalf of the State Government. The subject College, of which the sixth respondent is the in-charge Principal and the fifth respondent is the Secretary, is a State Government aided institution and receives funds both from the State Government and the University Grants Commission. The serious allegations, made in the counter-affidavit filed on behalf of the State Government, would necessitate an inquiry being caused and action taken in the larger public interest of ensuring that public funds are not mis-utilized. As the cause is in the public interest, it matters little who has brought these facts to the notice of the Court. Allegations regarding personal animosity between the petitioner and the fifth respondent, or that the Writ Petition was filed at the behest of others inimically disposed towards the fifth respondent, need not detain us, as this Court can examine these allegations, non-suiting the petitioner and entertaining the Writ Petition suo-motu.”

To put things in perspective, it is then made clear in para 10 that, “What Rule 3(4)(c) of the 2010 Rules prohibits is for a Writ Petition to be entertained, in the PIL jurisdiction of the High Court, where it relates to individual disputes in the arena of criminal jurisdiction. The present case relates to mis-utilization of public funds by those incharge of a Government aided institution, and does not relate to individual disputes in the arena of criminal jurisdiction. Further the jurisdiction which the High Court exercises, under Article 226 of the Constitution of India, is a part of the basic structure of the Constitution (L. Chandra Kumar v. Union of India : AIR 1997 SC 1225). As the power of judicial review is part of the basic structure, this power cannot be curtailed or negated even by an amendment to the Constitution, much less by legislation – plenary or subordinate.”

Be it noted, it is then brought out aptly in para 11 that, “The High Court of Uttarakhand P.I.L. Rules, 2010 have been made to guide the High Court in entertaining Writ Petitions in its Public Interest Litigation jurisdiction. That does not curtail or negate its jurisdiction to entertain cases where it is satisfied that larger public interest would be adversely affected if it fails to intervene. As the afore-extracted allegations are serious, and cannot be brushed aside, we are satisfied that an inquiry should be caused into these allegations, and action taken pursuant thereto in accordance with law.”

Most crucially, it is then held in no uncertain terms in para 12 that, “In the present case, the allegations relate to misappropriation and mis-utilization of public funds. As this Court can even treat letters addressed to it, or newspaper reports, as Writ Petitions filed in public interest, we see no reason not to cause an inquiry into these serious allegations merely because a criminal investigation has been caused in the matter, and a Final Report is said to have been filed by the Investigating Officer.”

Equally significant is what is then made amply clear by the Bench in its clarification in para 12 that, “Even if the Uttarakhand Audit Act, 2012 does not apply to the Society of which the fifth respondent is the Secretary, misutilization of public funds would undoubtedly, require an inquiry to be caused, and action taken pursuant thereto in accordance with law. Accepting the submission of Mr Neeraj Garg, learned counsel for the fifth respondent, that, in the absence of a specific provision either in the Uttarakhand Audit Act, 2012 or elsewhere, no inquiry can be caused, would enable persons, in charge of establishments which receive public funds, to misappropriate such funds and yet claim immunity from inquiry, and action being taken pursuant thereto.”

To sum up, the Uttarakhand High Court has made it amply clear in this leading case that even if there is a bar on certain matters to be taken as PIL, there is always discretion that is available with the Court to do so in exercise of its inherent powers. It is entirely up to the Court to exercise its power of discretion in exercise of its inherent powers hinging on the merits of the case! There can certainly be no ever denying or disputing it!

Sanjeev Sirohi

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Sole Testimony Of Victim Of Sexual Abuse, If Found Reliable, Is Sufficient To Hold Perpetrator Guilty Of Misconduct In Departmental Enquiry: Uttarakhand HC

In a fresh, firm and favourable ruling for victims of sexual abuse and delivered just recently on June 15, 2020, the Uttarakhand High Court has in a latest, landmark and extremely laudable judgment titled Bhuwan Chandra Pandey Vs Union of India and others in Writ Petition (S/B) No. 153 of 2013 held in no uncertain terms that the sole testimony of the victim of sexual abuse is sufficient to hold the perpetrator guilty of misconduct in a departmental enquiry. There is no reason why the sole testimony of sexual abuse not be sufficient to hold the perpetrator guilty of misconduct in a departmental enquiry. There are so many notable rulings of Supreme Court and High Courts also which have held the perpetrator accountable even in such cases of sole testimony of sexual abuse!

To start with, this noteworthy judgment authored by Chief Justice of Uttarakhand High Court – Ramesh Ranganathan for himself and Justice RC Khulbe sets the ball rolling by first and foremost posing a series of thought provoking questions in para 1 which goes as: “Is the sole testimony of the victim of sexual abuse, sufficient to hold the perpetrator guilty of misconduct in a departmental enquiry? Is the punishment of dismissal from service, imposed on the perpetrator as a consequence thereof, grossly disproportionate warranting interference by this Court in the exercise of its power of judicial review? These questions, among several others, arise for consideration in this writ petition.”

While elaborating further, it is then stated in para 2 that, “The extra-ordinary jurisdiction of this Court, under Article 226 of the Constitution of India, has been involved by the petitioner seeking a writ of certiorari to quash the order of punishment of dismissal dated 10.05.2012, the appellate order, the order directing initiation of a de-novo enquiry, and the fresh charge sheet, declaring the same as illegal, dehors the rules and unconstitutional; to issue a writ of mandamus commanding the respondents to treat the petitioner as continuing in service, and reinstate him with all consequential benefits including promotion, upgradation of pay, revised pay scales and arrears of salary, as he would have been entitled to, if the impugned orders had not been passed; for a writ of mandamus to consider the petitioner’s claim for payment of damages on account of the tortuous act of the respondents; and to quantify the damages to be recovered from the erring officers, and persons who were instrumental and responsible for the same.”

While dwelling on the facts of the case, it is then stated clearly in para 3 that, “Facts, to the limited extent necessary, are that, for the para medic course (the duration of which was for a period of three months), the petitioner was nominated, for the three day period 16.08.1998 to 18.08.1998, as a guest instructor for an outdoor exercise with trainees, for conducting a half day theory class, a half night march exercise at the S.S.B. Academy Gwaldum, and to impart them training on military topics such as night navigation and map reading. On 18.08.1998 the trainees, including two lady members of the 94 medic course, were imparted training on theoretical subjects. The half night training exercise included a night march. However, because of heavy rains in that area, it was decided by the petitioner’s superior officers not to permit both the lady trainees to march in the wet and muddy hilly areas to prevent any casualty occurring thereby. In the affidavit, filed in support of the writ petition, the petitioner states that it was decided to give minimum or grace marks for the night march training to the two lady trainees as they did not participate in the night march.”

In continuation of the above, it is then stated more relevantly in para 4 that, “After completion of the night training exercise, the petitioner, along with several other members including the two lady trainees, sat in the cabin of a truck which was coming back to Gwaldum station. It is in the cabin of the truck that the petitioner is said to have molested one of the lady trainees, and to have sexually harassed her.”

While elaborating further on what is stated above, it is then stated in para 5 that, “While this unsavory incident is said to have taken place in the cabin of the truck at around 11 p.m. on 18.08.1998, the victim trainee (hereinafter referred to as the “complainant”) lodged a complaint on 19.08.1998 to the DIG F.A. Gwaldum alleging sexual harassment by the petitioner during the return journey on 18.08.1998. Thereafter the petitioner was informed, by memorandum dated 08.10.1999, that it was proposed to take action against him under Rule 16 of the CCS (CCA) Rules, 1965 (for short the “1965 Rules”). A statement of imputations of misconduct/misbehavior, on which action was proposed to be taken, was issued giving the petitioner an opportunity to submit his representation thereto. Rule 16 of the 1965 Rules prescribes the procedure for imposing the minor penalties as specified under Rule 11. The inquiry committee, constituted thereafter, submitted its report on 21.09.2001 holding the petitioner guilty of the charges. The disciplinary authority agreed with the findings of the Inquiry Committee. Though minor penalty proceedings, under Rule 16 of the 1965 Rules, had been initiated against him by memorandum dated 08.10.1999, the petitioner, on being held guilty of the charges, was imposed, by proceedings dated 12.09.2003, the major penalty of dismissal from service.”

Importantly, it is then laid bare in para 106 that, “In the present case the Disciplinary Authority imposed, on the petitioner, the punishment of dismissal from service after concurring with the findings and conclusions of the Inquiry Committee that both Charges 1 and 2 were proved. The first charge, as noted hereinabove, related to sexual abuse and molestation by a superior paramilitary officer over his subordinate lady trainee. In the Paramilitary Forces, where the need to maintain discipline is of a very high order, such acts of a superior officer, in taking advantage of the vulnerability of a subordinate lady trainee and in indulging in such heinous acts of molestation and sexual abuse, justified the deterrent punishment of dismissal from service being imposed on him. Under no circumstances, be it in the Paramilitary Forces or elsewhere, can such acts either be condoned or a lenient view be taken thereof. The second charge, as held established is that the petitioner, after having indulged in such heinous acts, as also his father who was a high ranked official, in the cadre of Deputy Inspector General in the Sashastra Seema Bal, had sought to pressurize the complainant to withdraw the complaint.”

More importantly, while justifying the punishment imposed on the petitioner, it is then held in para 107 that, “The deponent of the counter-affidavit, filed in the present Writ Petition, is the Commandant, SSB, Gwaldam. It is not for him to sit in judgment over the decision of the President of India in imposing the punishment of dismissal from service on the petitioner for the charges held established. His concession, that the punishment is not proportionate, is therefore of no consequence. Even otherwise, we are satisfied that the punishment, imposed on the petitioner of dismissal from service, is commensurate to the charges held established. The contention urged on behalf of the petitioner, that the punishment of dismissal from service is shockingly disproportionate, therefore necessitated rejection.”

Most importantly, it is very rightly observed in para 43 that, “As the sole testimony of a prosecutrix, in a criminal case involving sexual harassment and molestation, would suffice if it is otherwise reliable, there is no justifiable reason not to accept the sole testimony of a victim, of sexual harassment and molestation, in a departmental inquiry as the enquiry held by a domestic Tribunal is not unlike a Criminal Court, governed by the strict and technical rules of the Evidence Act. (Murlidhar Jena AIR 1963 SC 404). A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probabilities, and not proof beyond reasonable doubt. If the inference was one which a reasonable person would draw, from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. (Sardar Bahadur (1972) 4 SCC 618). If the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. The only question is whether the proved facts of the case would warrant such an inference. (Sardar Bahadur (1972) 4 SCC 618; and S Sree Rama Rao AIR 1963 SC 1723). If the disciplinary inquiry has been conducted fairly without bias or predilection, in accordance with the relevant disciplinary rules and the Constitutional provisions, the order passed by such authority cannot be interfered with merely on the ground that it was based on evidence which would be insufficient for conviction of the delinquent on the same charge at a criminal trial. (Nand Kishore Prasad v. The State of Bihar and others AIR 1978 SC 1277).”

Equally significant if not more is what is then stated in para 44 that, “Strict and sophisticated rules of evidence, under the Indian Evidence Act, are not applicable in a domestic enquiry. (State of Haryana vs. Rattan Singh (1977) 2 SCC 491; J.D. Jain v. Management of State Bank of India & Others (1982) 1 SCC 143). Sufficiency of evidence, in proof of the finding by a domestic tribunal is beyond scrutiny. (Rattan Singh). In a departmental enquiry, guilt need not be established beyond reasonable doubt. Proof of misconduct is sufficient. (J.D. Jain). All material, which are logically probative for a prudent mind, are permissible. There is no allergy even to hearsay evidence provided it has reasonable nexus and credibility. (Rattan Singh).”

No less significant is what is then stated in para 45 that, “In the present case, the testimony of the complainant gives graphic and shocking details of acts of sexual molestation perpetrated by the petitioner on her. This evidence is also corroborated in part by the testimony of others. The Enquiry Committee has held that, before this incident, the petitioner and the complainant were not even personally acquainted with each other, and the petitioner’s claim, of the complainant having been instituted for extraneous considerations, was not tenable. In such circumstances, we see no reason why the Enquiry Committee should be faulted for largely relying on the testimony of the complainant. The contentions urged on behalf of the petitioner under this head, necessitate rejection.”

Finally, the key point of the last para 113 is that, “For the reasons stated hereinabove, we see no reason to interfere either with the inquiry proceedings or with the order of punishment of dismissal from service imposed on the petitioner.”

On a concluding note, this extremely laudable and latest judgment by a two Judge Bench of the Uttarakhand High Court including the Chief Justice Ramesh Ranganathan himself is a strong and stern warning to all men who dare to indulge in sexual harassment that if you dare to indulge in it then be ready to face the dire consequences. Even the sole testimony of sexual abuse, if found reliable, is sufficient to hold the perpetrator guilty of misconduct in departmental enquiry! Such men who dare to commit such heinous crimes must expect no reprieve from the courts anymore!

Sanjeev Sirohi

SC Finally Allows Jagannath Rath Yatra At Puri On Conditions.

It is heartening to see that the Supreme Court in a latest, landmark and laudable judgment titled Odisha Vikas Parishad vs Union Of India & Ors in Writ Petition(s) (Civil) No(s). 5721/2020 dated June 22, 2020 has while modifying the absolute stay on conducting the Jagannath Rath Yatra at Puri has allowed it observing the strict restrictions and regulations of the Centre and the State Government. These strict restrictions and regulations are considered imperative also considering the increasing spread of the Corona pandemic! So there is no reason to oppose them!

To start with, this noteworthy judgment that was delivered by Chief Justice of India (CJI) – Sharad Arvind Bobde, Justice Dinesh Maheshwari and Justice AS Bopanna first and foremost sets the ball rolling by observing right at the outset that, “These are applications made by several parties for intervention and modification of Order dated 18th June, 2020 passed by this Court. By that Order, we had restrained the respondents from holding the Rath Yatra this year in view of the danger presented by gathering of 10 to 12 lakhs devotees for a period of 10-12 days. Clearly any spread of the Coronavirus due to the Rath Yatra would be disastrous due to the large number of persons and the impossibility of tracking all the infected people after they have gone back to their respective homes. Needless to say that it is not possible to screen the medical conditions of all those who converge on the cities for the Rath Yatra.”

It is a no-brainer that considering the huge presence of devotees at this Rath Yatra that we witness every year, there was a dire need to impose strict restrictions to check the epidemic from further spreading very rapidly as it spreads by contact. This what the Apex Court Bench in this notable case has stated right at the outset also. There can be no denying or disputing it!

To be sure, the Apex Court Bench then very rightly went on to say as a word of caution that, “While we do not have the official copy of the gazette itself, we are informed that in the 18th-19th century a yatra of this kind was responsible for the spread of cholera and plague “like wild fire”. We say this in order to remind the authorities concerned that the situation can become dangerous if the rules of caution are ignored.”

To put things in perspective, it is then envisaged by the Apex Court Bench that, “Before we passed our earlier Order we had suggested to the parties that the procession of chariots, i.e., the Rath Yatra itself, could be allowed to proceed, however, without the general congregation which participates in this Yatra. We were informed that it would be well nigh impossible to ensure that there is no congregation. This Court was, therefore, left with no option but to grant an injunction restraining the Rath Yatra itself.”

While elaborating further, it is then pointed out by the Apex Court Bench that, “However, we find, in one of the present applications, an affidavit filed on behalf of the State of Orissa stating that it might be possible to conduct the Rath Yatra at Puri “in a limited way without public attendance”. This has been proposed by Gajapati Maharaj of Puri, who is the Chairman of the Puri Jagannath Temple Administration. Indeed, if it is possible to ensure that there is no public attendance, we see no reason why the Rath Yatra cannot be conducted safely along its usual route from temple to temple.”

Most significantly, it is then held by the Apex Court Bench that, “Having given serious consideration to the matter and having heard the parties, we are of the view that the Rath Yatra at Puri may be held subject to following conditions:

(1)         All entry points into the City of Puri, i.e., airports, railway stations, bus stands, etc., shall be closed during the period of Rath Yatra festival.

(2)         The State Government shall impose a curfew in the City of Puri on all the days and during all the time when Rath Yatra chariots are taken in procession. The State Government may also impose curfew in the city of Puri on such other days and during such time as deemed necessary. During the period of curfew no one would be allowed to come out of their houses or their places of residence, such as hotels, lodging houses, etc. To start with, the curfew shall begin tonight at 8 P.M.

(3)         Each Rath i.e., Chariot, shall be pulled by not more than 500 persons. Each of those 500 persons shall be tested for the Coronavirus. They shall be permitted to pull the chariot only if they have been found negative. The number 500 shall include officials and police personnel.

(4)         There shall be an interval of one hour between two chariots.

(5)         Each of those who is engaged in pulling the chariot shall maintain social distancing before, during and after the Rath Yatra.

(6)         We are informed that certain rituals are associated with the Rath Yatra. We direct that only such persons shall be associated with the rituals who have been found to have tested negative and shall maintain social distancing.

(7)         The primary responsibility for conducting the Rath Yatra in accordance with the conditions and other norms shall be that of the Committee in-charge of Puri Jagannath Temple Administration. Each member of the Committee shall be responsible for due compliance with the conditions imposed by this Court and the general directions which govern ensuring of public health issued by the Union Government. In addition, the officers designated by the State Government for conduct of the Rath Yatra shall be responsible likewise.

(8)         The rituals and the Rath Yatra shall be freely covered by the visual media. The State Government shall allow TV cameras to be installed at such places as may be found necessary by the TV crew.

(9)         The bare minimum number of people shall be allowed by the Committee to participate in the rituals and in the Rath Yatra. We take a note of the fact that the State of Orissa has a good record of having controlled the pandemic with a very little loss of life. We see no reason why the same attitude of care and caution should not be applied to the Rath Yatra.

(10)  The State Government may take such help as may be found necessary from the Union Government. Shri Tushar Mehta, learned Solicitor General, has assured the Court that the Union Government shall offer all assistance and help to the State Government in this endeavour.

(11)  The State Government shall maintain a record containing details of all those who have been allowed to participate in the Rath Yatra or the rituals connected therewith along with details of their medical conditions after testing.

Finally, it is then held in the last para that, “All the applications for intervention and modification of Order dated 18th June, 2020 passed by this Court are disposed of.”

All said and done, it is a commendable judgment delivered by a three Judge Bench of the Apex Court which includes the CJI also! It may be recalled that the Apex Court on June 18 had ordered that no Rath Yatra should be held keeping in mind the pandemic situation. But no it stands modified and the Rath Yatra has been permitted with the restrictions and conditions as has been already above elaborated upon in detail!

Sanjeev Sirohi

The Legal Stance of Online Casinos in India

India is one of the countries with archaic gambling and online gaming laws. Even with the world moving swiftly towards a more flexible viewpoint as regards games of skill, particularly casino games, India’s online gaming law is still very vague. It can even be called non-existent as the current government is not putting any efforts into the gambling laws.

While the confusion as to what type of gambling activity is legal continues in the country, it is quite obvious that Indians are in love with online gaming. According to recent stats published by ICSS (International Centre for Sports Security), the worth of the Indian betting market is over $130 billion. After going through this piece, do not forget to participate in legal online gambling in India at Lucky Dice.

Legality of Online Gambling in India

The outlook of the Indian government as regards online betting and gambling is still a grey area. About four sports were given total betting approval by the government, while the other sports of similar characters as the approved sports were not given any betting approvals. Sports like rummy and Horse racing are regarded as games of skill and are free to wager on but other games like poker and cricket as seen as games of luck and they are viewed differently by the Indian lawmakers.

One major grey area in the gaming laws of India is the Poker. It is very surprising that games like the Texas Hold’em and Teen Patti (flush) is prohibited while Rummy can be wagered on. It is even more surprising that horse racing is allowed to be wagered on due to its classification as a skill game, yet cricket betting is prohibited. Interestingly, both horse racing and cricket share the same skill set.

The days of Matka gaming are long gone in India. What you will find these days are only a few games to wager on. Betting on such games is also found in particular states. Presently lottery, online rummy, online poker, horse racing, and a few gaming platforms are legal in India.

 

The Different State Laws on Gambling in India

If you are a regular online game player in India, you will notice that states in India have their individual gambling laws, even with the existence of centralized Acts. So, why are there different gambling laws in different states in India? The answer to this question is quite straightforward; the constitution of India, particularly in the 7th schedule gives states the power to make regulations and policies as regards betting and gambling in their various states. This means that the 7th schedule gives states the power to legalize online gaming and gambling if they wish to do so.

All the state governments in India can enact gambling laws as well as regulate gaming activities in their individual states according to their discretion. In addition, the Central government is prohibited from intervening in the proceedings of any of the states. With the diversity in the tribes in India and twenty-nine different states, one can only think about how diverse the gambling laws will be. Up till this very moment, only thirteen states have legalized lotteries while the rest have enacted several laws prohibiting gambling. Amongst the states that have legalized gambling are Sikkim and Goa.

 

Casino Gaming In Goa

There have been two significant amendments to the Goa, Daman and Diu Public Gambling Act, 1976. The amendments to the law legalize different gambling games. According to the amendments, slot machines and electronic amusements are allowed in certain locations in the states. The games authorized include offshore gaming and several table games. As of 2011, Goa could boast of numerous offshore casinos and 7 land based casinos.

 

Casino Gaming in Sikkim

Another state that legalized gambling in India is Sikkim. It is in fact the second state to do that. According to the Sikkim Casino Games (Control and Tax Rules) 2002, the government of Sikkim has the power to grant gaming licenses to casino operators and online gaming platforms.

This is the first state to legalize internet gambling in India. Following the 2002 law, Sikkim started handing out licenses to online casino operators whose servers are within the state. The licenses issued by the state of Sikkim include sports betting, lottery and casino gaming. The belief is that when the gaming operators become fully operational in Sikkim, players from other states will be allowed to legally wager there. The laws regulating gambling in Sikkim has made betting giants like Betfair and WilliamHill to watch the Indian betting market with keen interest.