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