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