DR PS MALIK  Vs HIGH COURT OF DELHI

W.P.(C) 5390/2020 Page 1 of 32
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 29 th January, 2021.

+ W.P.(C) 5390/2020 & CMs No.19419/2020 & 24864/2020 (both for
stay)

DR. P.S. MALIK ….. Petitioner
Through: Mr. Varinder Kumar Sharma, Adv.

Versus

HIGH COURT OF DELHI ….. Respondent
Through: Mr. Rajshekhar Rao, Ms. Gauri Puri,
Mr. Vinayak Mehrotra and Mr. Areeb
Amanullah, Advs.
CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON’BLE MS. JUSTICE ASHA MENON

[VIA VIDEO CONFERENCING]

RAJIV SAHAI ENDLAW, J.

1. The petitioner, an ex-officer of the Delhi Highe r Judicial Services
(DHJS), has filed this petition (i) impugning the l etter dated 17 th April, 2020
of this Court forwarding the letter dated 16 th March, 2020 of the
Government of NCT of Delhi (GNCTD) of dismissal of petitioner from
service, to the petitioner; (ii) impugning the orde r dated 16 th March, 2020 of
GNCTD of approving of dismissal of the petitioner f rom service, on the
recommendation of this Court; (iii) impugning the d isciplinary proceedings
against the petitioner; and, (iv) seeking restorati on of the petitioner in
service, with all consequential benefits.
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2. The petition came up first before this Bench on 18 th August, 2020 and
thereafter on 26 th August, 2020, when notice of the petition was orde red to
be issued and pleadings ordered to be completed.
3. The counsel for the petitioner was heard on 3 rd November, 2020 and
20 th November, 2020, when the counsel for the responden t in reply and the
counsel for the petitioner in rejoinder were also h eard and orders reserved.
4. The petition was filed, pleading (i) that the pe titioner was appointed
in the Delhi Judicial Services (DJS) in the year 19 97 and promoted to the
DHJS in 2008; (ii) that the petitioner, in the year 2016 was posted in District
Court, Dwarka; (iii) that in the morning of 5 th July, 2016, when the
petitioner was holding Court, he observed that some papers were missing
from a judicial file pending in the Court of the pe titioner; (iv) that on
explanation being sought from the Ahalmad, it was r eported that the file
concerned pertained to the previous Ahalmad Ms. M ( name concealed) in
the petitioner’s Court and clarification should be sought from her; (v) that
Ms. M stood transferred out from the Court of the p etitioner and thus notice
was directed to be issued to her and served on her on 5 th July, 2016; (vi) that
annoyed by the said notice, Ms. M, as a counterblas t, in the evening of 5 th
July, 2016 itself, filed a complaint of sexual hara ssment at work place
against the petitioner; (vii) that Ms. M, on 11 th July, 2016 made another
complaint of the Court notice aforesaid issued to h er from the Court of the
petitioner; (viii) that both the aforesaid complain ts filed by Ms. M were
without any supporting affidavit, as was required v ide Circular No.87/CJS-
III/Compt./2016 dated 17 th May, 2016 providing that complaints against the
Judicial Officers should not be entertained and no action taken thereon,
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unless accompanied by a duly sworn affidavit and ve rifiable material to
substantiate the allegations made therein; (ix) tha t the petitioner, on 14 th
July, 2016 received a letter dated 13 th July, 2016, placing the petitioner
under suspension, pending disciplinary proceedings; however the grounds of
suspension were not intimated and the complaints af oresaid not brought to
the notice of the petitioner; (x) that the Registra r General of this Court, also
directed the local Police for registration of crimi nal case against the
petitioner; (xi) that on 19 th July, 2016, an Internal Complaint Committee
(ICC) under Section 4 of the Sexual Harassment of W omen at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 ( Sexual Harassment Act)
was appointed; (xii) that at the end of August, 201 6, the petitioner was
called by the ICC, which supplied the complaints of Ms. M to the petitioner,
including another complaint dated 28 th July, 2016; (xiii) that the ICC held an
inquiry and gave its report on 5 th November, 2016 but no copy of the report
was supplied to the petitioner; (xiv) that the ICC, in its report did not find
any “proved allegation” within the meaning of Secti on 13 of the Sexual
Harassment Act against the petitioner; (xv) that th ough the petitioner should
have been exonerated, but was not; (xvi) that on 16th November, 2016, this
Court resolved to initiate disciplinary proceedings for major penalty under
Rule 8 of the All India Services (Discipline and Ap peal) Rules, 1969 (AIS
Rules) against the petitioner and the ICC was const ituted as the Inquiring
Authority within the meaning of Rule 8 of AIS Rules and held inquiry from
19 th September, 2017 to 19 th February, 2018; (xvii) that on 16 th May, 2018,
the petitioner under a cover of a letter dated 15 th May, 2018 received a copy
of the Inquiry Report dated 9 th March, 2018, asking the petitioner to make
his written submissions qua the report dated 9 th March, 2018; (xviii) that the
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petitioner preferred Writ Petition No.705/2018 befo re the Supreme Court,
challenging the entire process, right from the rece ption of complaint dated
5th July, 2016 till the service of the Inquiry Report dated 9 th March, 2018 on
the petitioner; (xix) that this Court filed a count er affidavit in the aforesaid
writ petition, admitting (a) that the provisions of the Sexual Harassment Act
were applicable to the facts of the case; (b) that the Delhi Higher Judicial
Services Rules, 1970 (DHJS Rules) were applicable t o the petitioner; and,
(c) that the AIS Rules were part of the DHJS Rules; and in the said counter
affidavit, reliance was also placed on the Minutes of the Meeting dated 25 th
May, 2015; (xx) that this Court along with the said counter affidavit also
filed a Resolution dated 1 st August, 2018 of this Court to the effect that the
Inquiry Report dated 5 th November, 2016 had not been relied upon against
the petitioner; (xxi) that after the petitioner had filed Writ Petition
No.705/2018 in the Supreme Court, a charge sheet wa s filed in the Court of
Metropolitan Magistrate, Dwarka, without arrest of the petitioner and the
petitioner joined trial pending in the Court of Add itional Sessions
Judge/District Court, Dwarka, Delhi; (xxii) that th is Court, vide letter dated
17 th July, 2019 again sought submissions/representation s of the petitioner
qua the Inquiry Report dated 9 th March, 2018 and in reply whereto a letter
dated 29 th July, 2019 was sent by the petitioner; (xxiii) tha t the Supreme
Court, vide judgment dated 21 st August, 2019 disposed of Writ Petition
No.705/2018 with the directions that Inquiry Report dated 9 th March, 2018
was a report under Section 13 of the Sexual Harassm ent Act and was
appealable under Section 18 of the said Act; it was further clarified in the
said judgment that it was open to the petitioner to raise all pleas of facts and
law before appropriate authority; (xxiv) that on 27th August, 2019, the
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petitioner filed a Civil Appeal under Section 18 of the Sexual Harassment
Act before the Supreme Court but the same was withd rawn on 27 th
September, 2019 and instead, on the same day, filed W.P.(C)
No.10653/2019 and FAO No.403/2019 in this Court; (x xv) that W.P.(C)
No.10653/2019 was withdrawn on 30 th September, 2019, with liberty to file
a fresh writ petition, if needed; (xxvi) that FAO N o.403/2019 was disposed
of vide order dated 9 th October, 2019; (xxvii) that the counsel for the
petitioner, after some hearing, had withdrawn FAO N o.403/2019, reserving
the right to make the same contentions as made ther ein, in appropriate
proceedings, in the event of this Court on the admi nistrative side taking an
adverse decision against the petitioner on the basi s of the report of ICC
under the Sexual Harassment Act; (xxviii) that the petitioner made a
representation dated 11 th October, 2019 to this Court, also seeking
reinstatement in service and dropping of disciplina ry proceedings against
him; (xxix) that this Court vide letter dated 18 th October, 2019 again sought
a response from the petitioner to the Inquiry Repor t dated 9 th March, 2018
and the petitioner, in response thereto, submitted a representation dated 30 th
October, 2019; (xxx) that though the Inquiry Report dated 9 th March, 2018,
prior to the judgment dated 21 st August, 2019 supra of the Supreme Court
“was a “Penalty Imposing Inquiry Report”” under the AIS Rules but once
the Supreme Court held the said report to be a repo rt under Section 13 of the
Sexual Harassment Act, this Court from the said rep ort was only required to
see whether the allegations of sexual harassment ag ainst the petitioner were
proved or not and the said report ceased to be a “P enalty Imposing Inquiry
Report”; (xxxi) that once as per the dicta of the S upreme Court, the Inquiry
Report dated 9 th March, 2018 was a report under Section 13 of the S exual
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Harassment Act, if the allegations of sexual harass ment against the
petitioner were found to be not proved, the proceed ings under the Sexual
Harassment Act should have been dropped and if this Court had found the
allegations proved, this Court was required to make a recommendation for
taking action against the petitioner for sexual har assment, as a misconduct,
in accordance with the AIS Rules and DHJS Rules; (x xxii) that it was
always the stand of the petitioner that the matter was required to be dealt
with under the provisions of the Sexual Harassment Act and this Court also
had initiated inquiry proceedings by constituting a n ICC in accordance with
Section 4 of the said Act; (xxxiii) that the ICC so constituted rightly
observed in its report that there was no provision in the DHJS Rules or AIS
Rules for inquiry into the allegations of sexual ha rassment at work place but
wrongly adopted the Office Memorandum (OM) dated 16th July, 2015 for
inquiry into the allegations of sexual harassment a gainst the petitioner; the
OM dated 16 th July, 2015 was “legally prohibited” under Rule 3(1 )(b) of the
Central Civil Services (Classification, Control & A ppeal) Rules, 1965 [CCS
CCA Rules]; (xxxiv) that though ICC was initiated u nder the provisions of
the Sexual Harassment Act but in the midst of the i nquiry, this Court
stopped following the Sexual Harassment Act and byp assed the statutory
mandate of Sections 13 & 18 of the said Act; (xxxv) that be that as it may,
the ICC submitted a report dated 5 th November, 2016 finding the allegations
against the petitioner to be not proved; (xxxvi) th at though on receipt of
report dated 5 th November, 2016, the proceedings against the petiti oner
ought to have been dropped under Section 13(2) of t he Act but without
having anything against the petitioner on record, d isciplinary proceedings
for major penalty under Rule 8 of the AIS Rules, we re commenced against
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the petitioner and the petitioner served with a cha rge memo; (xxxvii) that the
inquiry was conducted in violation of the said Rule 8 and at the conclusion
thereof the Inquiry Report dated 9 th March, 2018 was submitted, imposing a
penalty on the petitioner, meaning that procedure d ifferent from the
procedure required to be followed under Sections 11 & 13 of the Sexual
Harassment Act was followed; (xxxviii) that this ar bitrary selection of
wrong procedure has denied the petitioner equality before law and equal
protection of law; (xxxix) that the Supreme Court i n its judgment dated 21 st
August, 2019 held the report dated 9 th March, 2018 to be a report under
Section 13 of the Sexual Harassment Act, appealable under Section 18 of
the Act; (xl) that in appeal preferred by the petit ioner under Section 18 of
the Act, this Court observed that there was no prov ed allegation against the
petitioner and as and when this Court took an adver se view of the Inquiry
Report, the petitioner could prefer an appeal; (xli ) that the impugned order
dated 17 th April, 2020 of dismissal of the petitioner from se rvice is in
violation of the judgment dated 21 st August, 2019 of the Supreme Court as
well as the order dated 9 th October, 2018 of this Court in FAO No.403/2019;
and, (xlii) that the petitioner, on 21 st April, 2020 filed a writ petition before
the Supreme Court but the Supreme Court vide order dated 10 th August,
2020 observed that the petitioner was to first seek remedy before this Court.
5. This Court, in its counter affidavit has pleaded (a) that the petition is
bad on account of non-joinder of GNCTD which has is sued the order of
dismissal of the petitioner and though the petition er has in addition to the
communication dated 17 th April, 2020 also impugned the order dated 16 th
March, 2020 of the GNCTD but not impleaded GNCTD as a respondent; (b)
that the scope of a writ petition apropos an order of dismissal of a judicial
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officer is no longer res integra ; this Court in exercise of jurisdiction under
Article 226 of the Constitution of India, 1950 is t o only determine, whether
there is legally acceptable evidence to sustain a c harge of misconduct and
ought not to interfere, unless the finding is perve rse; (c) that this Court in
exercise of powers under Article 226 cannot substit ute its opinion for that of
the concerned disciplinary authority; (d) that the view of this Court on the
administrative side, as expressed by the Full Court , though is justiciable,
ought to be given due weightage and consideration a nd the opinion of the
Full Court ought not to be interfered with, unless found to be arbitrary,
capricious or irrational; (e) that the exercise und ertaken by the Full Court
cannot be upset merely due to the existence of anot her possible view; (f) that
this Court, in exercise of powers under Article 226 , is to confine itself to
examining the legality of the process to reach the eventual decision and
whether the principles of natural justice have been followed; (g) that the
petitioner has been subjected to a fair process, co mplying with the
applicable service rules and principles of natural justice and there is no
infirmity in the order of dismissal of the petition er on the recommendation
of this Court; (h) that the petitioner all along pa rticipated in the inquiry, with
detailed evidence and arguments and did not make an y challenge to the
process; the petitioner is now estopped from raisin g a challenge to the
process or procedure at this belated stage; (i) tha t the Full Court in its
meeting dated 13 th July, 2016, after considering the complaints dated 5 th
July, 2016 and 11 th July, 2016 against the petitioner, directed immedi ate
suspension pending disciplinary proceedings, initia tion of disciplinary
proceedings against the petitioner and intimation t o Police to take
appropriate action in accordance with law; (j) that on 19 th July, 2016, ICC
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comprising of four Hon’ble Judges of this Court and a Senior Advocate was
constituted by the Full Court and initiated a preli minary inquiry; (k) that the
petitioner, from time to time appeared before the I CC and filed a detailed
statement and replies to the complaints dated 5 th July, 2016, 11 th July, 2016
and 28 th July, 2016; (l) that the ICC met both, the petitio ner as well as Ms.
M and submitted a Preliminary Inquiry Report dated 5th November, 2016 to
the Full Court; (m) that the Full Court accepted th e Preliminary Inquiry
Report of the ICC and resolved that disciplinary pr oceedings for major
penalty under Rule 8 of the AIS Rules be started ag ainst the petitioner; (n)
that Memorandum dated 23 rd February, 2017 of charges was issued to the
petitioner in accordance with AIS Rules and to whic h the petitioner
submitted his written statement of defence dated 14th March, 2017; (o) that
no challenge to the maintainability of the inquiry or the procedure adopted
was made by the petitioner; (p) that the Full Court , on 16 th July, 2017,
considered the aforesaid written statement of defen ce of the petitioner and
resolved to hold an inquiry and in terms of Proviso to Rule 8(2) of the AIS
Rules and appointed the ICC as the Inquiring Author ity to inquire into the
charges framed against the petitioner and a Present ing Officer was appointed
to present the case on behalf of this Court; (q) th at a full-fledged inquiry was
conducted by the ICC between 19 th September, 2017 and 19 th February,
2018, in accordance with the applicable Rules and c omprising of detailed
hearings with extensive evidence and cross-examinat ion; (r) that the
petitioner, though submitted a list of 18 witnesses but produced only two
witnesses; (s) that written submissions were filed by the Presenting Officer
as well as the petitioner; (t) that the petitioner, in his written submissions did
not make any challenge to the maintainability of th e inquiry or the procedure
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adopted therein; (u) that the Inquiry Report dated 9 th March, 2018 of the ICC
was considered by the Full Court on 25 th April, 2018 and the petitioner
called upon to submit written representation or sub missions, if so desired,
against the findings of the Inquiring Authority, in accordance with Rule 9(2)
of the AIS Rules; (v) that the petitioner then file d Writ Petition (C)
No.705/2018 before the Supreme Court, challenging t he proceedings
initiated against him including the Inquiry Report dated 9 th March, 2018; (w)
that nearly simultaneously with so approaching the Supreme Court, the
petitioner vide his two verbatim letters sought cer tified copies of some
documents from this Court, to enable him to furnish his written
representation against the findings of the Inquirin g Authority and assured
this Court that he would submit a detailed and comp lete response/comments
on each aspect related to assessment of evidence an d findings of the
Inquiring Authority as mentioned in the Inquiry Rep ort dated 9 th March,
2018; (x) that the petitioner, on 27 th August, 2018, was supplied with the
certified copies of the documents sought and again asked to, if so desired,
submit written representation against the findings of the Inquiring Authority;
(y) that the petitioner sought three month’s extens ion to file his written
representation against the Inquiry Report dated 9 th March, 2018 and at that
time also did not make any grievance with respect t o the procedure adopted
or its tenability; (z) that the Supreme Court, in i ts judgment dated 21 st
August, 2019, held (i) that this Court is the disci plinary authority for the
petitioner and merely because the order of dismissa l of the petitioner from
service was issued by the Lt. Governor of GNCTD, in no manner denuded
the disciplinary control of this Court; (ii) that t here was no infirmity in the
order of suspension of the petitioner; (iii) that n o prejudice has been caused
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to the petitioner by non-supply of Inquiry Report d ated 5 th November, 2016;
and, (iv) that right of appeal to an aggrieved pers on is available only when
report is submitted under Section 13 of the Sexual Harassment Act to the
employer; (za) that FAO No.403/2019 preferred by th e petitioner, ostensibly
under Section 18 of the Sexual Harassment Act, was withdrawn by the
petitioner reserving the contentions set out in the appeal, to be agitated in
appropriate proceedings, in the event of the Full C ourt on the administrative
side taking an adverse decision against the petitio ner on the basis of the
report of the ICC under the Sexual Harassment Act; (zb) that the petitioner,
after failing before the Supreme Court as well as t his Court, to have the
proceedings against him quashed, finally submitted representations (three)
against the Inquiry Report dated 9 th March, 2018; (zc) that the Full Court
considered the three representations of the petitio ner against the Inquiry
Report dated 9 th March, 2018 and rejected the said representations and
decided to take further action as per the procedure laid down in Rule 9 of the
AIS Rules and accepted the Inquiry Report dated 9 th March, 2018 and
decided to recommend imposition of major penalty of dismissal from
service on the petitioner; (zd) that the contention of the petitioner, of non-
compliance with the Sexual Harassment Act as well a s the Service Rules
applicable to the petitioner, is baseless and misco nceived, inasmuch as the
statutory scheme and rules would apply to a member of the DHJS with
respect to any disciplinary action; (ze) that Artic le 235 of the Constitution of
India vests control over officers belonging to the judicial service of a State
in the High Court; (zf) that the DHJS Rules do not expressly provide a
procedure for disciplinary inquiry into allegations of misconduct (sexual or
otherwise) by DHJS Officers and recourse has to be had to the residuary
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Rule 27 of the DHJS Rules which provides that for a ll matters for which
no/insufficient provision is made in the DHJS Rules , the rules applicable to
officers of comparable status in the Indian Adminis trative Service (IAS)
shall apply; (zg) that this Court, on 27 th July, 2015 resolved, that for the
purposes of disciplinary action against a DHJS Offi cer on allegations of
sexual misconduct, the AIS Rules would be applicabl e, as they would be the
Rules applicable to officers of comparable status i n the IAS; (zh) that the
Supreme Court also in its judgment dated 21 st August, 2019 has held that the
rules and procedure for dealing with the allegation s of sexual harassment
against DHJS Officer are the AIS Rules and in the e vent of any conflict
between AIS Rules and the Sexual Harassment Act, th e AIS Rules would
override; Section 28 of the Sexual Harassment Act a lso clarifies the position
that the said Act is in addition to and not in dero gation of any other law for
the time being in force; (zi) that thus the provisi ons of the Sexual
Harassment Act are not in supersession of the servi ce rules; (zj) that in fact
there is no conflict between the Sexual Harassment Act or the AIS Rules;
(zk) that Section 11 of the Sexual Harassment Act m andates that upon
receipt of a complaint of sexual harassment from an aggrieved woman at the
hands of an employee, the ICC shall proceed to make inquiry into the
complaint in accordance with the service rules appl icable to the said
employee and which in the case of DHJS Officers are the DHJS Rules and
which in turn incorporate the AIS Rules for matters not covered therein such
as for disciplinary action; (zl) that axiomatically , in accordance with the
Sexual Harassment Act, the ICC to be constituted by this Court was
mandated to inquire into the allegations of sexual harassment, in accordance
with the AIS Rules; (zm) that the ICC constituted v ide Resolution dated 19 th
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July, 2016 of the Full Court, to look into the comp laint of sexual misconduct
against the petitioner, comprised of four Judges (o f which two were women)
and a Senior Advocate (also a woman) and summoned t he petitioner and
asked for his statement of defence which the petiti oner submitted; (zn) that
the said ICC conducted a preliminary inquiry and su bmitted a Report dated
5th November, 2016 recommending a full-fledged inquiry ; (zo) that the Full
Court, after the consideration of the Report dated 5th November, 2016,
resolved that disciplinary proceedings for impositi on of major penalty under
Rule 8 of AIS Rules be initiated against the petiti oner; (zp) that it was at that
stage that the inquiry in terms of Rule 8 of the AI S Rules began; the Proviso
to Rule 8(2) of the AIS Rules provides that in case of a complaint of sexual
harassment [within the meaning of Rule 3 of All Ind ia Services (Prevention
of Sexual Harassment) Regulations, 1998 (Regulation s)], the Complaints
Committee for such complaints, shall be deemed to b e the Inquiring
Authority appointed by the disciplinary authority f or the purposes of the AIS
Rules and will conduct the inquiry, where separate rules have not been so
prescribed, in accordance with the procedure laid d own under the AIS
Rules; (zq) that in the said enquiry in terms of Ru le 8 of the AIS Rules,
distinct articles of charge along with statements a nd evidence substantiating
the charges were drawn up and delivered to the peti tioner, who submitted
his statement of defence thereto; (zr) that the sai d defence of the petitioner
was not accepted by this Court and in terms of Rule 8 of the AIS Rules read
with Rule 8(6)(a), an Inquiring Authority (deemed I CC) was appointed to
inquire into the charges framed against the petitio ner; (zs) that the petitioner
duly participated in the proceedings before the Inq uiring Authority which
conducted a thorough and detailed inquiry, from 19 th September, 2017 to
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19 th February, 2018 and during which proceedings, eight departmental
witnesses and two defence witnesses were examined a nd cross-examined;
(zt) that the petitioner cross-examined the complai nant Ms. M at length, on
seven different occasions; (zu) that the inquiry al so involved minute
examination of bulky Call Data Records pertaining t o five mobile numbers
and detailed examination of technical assistants of telecommunication
companies as well; (zv) that as many as eighteen he arings took place and the
petitioner was also represented by a Senior Advocat e and at no time
challenged the procedure adopted by the Inquiring A uthority; (zw) that the
Inquiring Authority, in accordance with Rule 8(24) of the AIS Rules, drew
up the Report dated 9 th March, 2018 containing the articles of charge,
statement of imputations of misconduct, the defence of the petitioner, the
assessment of the evidence by the Inquiring Authori ty in respect of each
article of charge and the findings on each article of charge with reasons; (zx)
that the Inquiring Authority returned a finding tha t there was “sufficient
material brought on record to establish the unwelco me sexually determined
behaviour on the part of the charged officer and he is therefore, liable for
disciplinary action”; (zy) that the Inquiry Report dated 9 th March, 2018 was
not only compliant with Rule 8 of the AIS Rules but also satisfied the
requirements of Section 13(1) and (3) of the Sexual Harassment Act,
inasmuch as it returned a categorical finding that the allegations against the
petitioner had been proved and he was liable for di sciplinary action; (zz) that
the Inquiry Report dated 9 th March, 2018 was placed before the Full Court
which sought the written representation of the peti tioner thereagainst; (zza)
that the petitioner, instead of filing representati on against the report,
approached the Supreme Court by way of Writ Petitio n No.705/2018, which
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culminated in the judgment dated 21 st August, 2019; (zzb) that even if FAO
No.403/2019 preferred by the petitioner were to be treated as an appeal
under Section 18 of the Sexual Harassment Act, the petitioner, by
withdrawing the same, waived his right to challenge the recommendations
and would only be entitled to challenge the decisio n to dismiss him from
service, in accordance with law; (zzc) that the pet itioner, after withdrawing
FAO No.403/2019, filed three representations agains t the Inquiry Report
dated 9 th March, 2018 and which representations were rejecte d by the Full
Court and the report accepted and imposition of maj or penalty of dismissal
recommended against the petitioner; (zzd) that ther e is thus no non-
compliance with any law or rule in the matter of di smissal of the petitioner;
(zze) that the argument of the counsel for the peti tioner, that the order of
dismissal of petitioner from service has been passe d prior to the petitioner
having an opportunity to prefer an appeal under Sec tion 18 of the Sexual
Harassment Act, is misconceived; the liberty grante d to the petitioner in the
order dated 9 th October, 2019 in FAO No.403/2019, could only be a
reference to the petitioner filing his written repr esentation against the report
in accordance with Rule 9(2) of the AIS Rules and w hich liberty was duly
availed of by the petitioner, after withdrawing FAO No.403/2019 with
liberty aforesaid; (zzf) that the Circular dated 17th May, 2016, of complaints
against Judicial Officers to be supported by affida vit, does not apply in the
cases of complaints of sexual harassment as the Sex ual Harassment Act
itself contains a provision for taking action again st the complainant, if the
complaint is found to be false or malicious; also t he power under Article 235
of the Constitution of India cannot in any manner b e circumscribed by any
rule, order or notification and the Courts, in comp laints of sexual
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harassment, should not allow justice to fail on acc ount of procedural
technicalities; and, (zzg) that non-compliance with Circular dated 17 th May,
2016 does not vitiate the inquiry against the petit ioner.
6. The petitioner, in response to the 27 page count er affidavit of the
respondent, has filed a 60 page rejoinder. However the need to refer to the
contents thereof is not felt, as the counsel for th e petitioner has also filed
written arguments and all that is pleaded in the re joinder is covered by the
said written arguments. Suffice it is to state tha t the petitioner, in paragraph
4 of the preliminary submissions in his rejoinder h as admitted that the
Inquiry Report dated 9 th March, 2018 was considered by the Full Court on
25 th April, 2018 and vide letter dated 15 th May, 2018 of this Court, a copy of
the Inquiry Report dated 9 th March, 2018 forwarded to the petitioner and the
petitioner called upon to submit his written submis sions against the findings
in the said report and also informed that on his fa ilure to so make written
representation, it shall be presumed that the petit ioner has nothing to say in
his defence and further action against petitioner t aken in accordance with
AIS Rules.
7. The counsel for the petitioner has argued, (i) t hat the Supreme Court,
in the judgment dated 21 st August, 2019 in Writ Petition No.705/2018
preferred by the petitioner has held that the Inqui ry Report dated 9 th March,
2018 is an ICC report under Section 13 of the Sexua l Harassment Act; (ii)
that this Court was bound to take all steps qua the ICC Inquiry Report dated
9th March, 2018 which it had earlier taken qua the ICC Inquiry Report dated
5th November, 2016 i.e. to hold a Full Court parallel to the Full Court dated
16 th November, 2016 and consider the ICC Inquiry Report dated 9 th March,
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2018; (iii) that it was the Full Court which was to decide, whether or not the
ICC Inquiry Report dated 9 th March, 2018 was to be accepted or not, just
like the Full Court qua the ICC Inquiry Report date d 5 th November, 2016
had taken a decision on 16 th November, 2016 to accept the same; (iv) that no
Full Court meeting was called qua the ICC Inquiry R eport dated 9 th March,
2018 and the same was not submitted to the Full Cou rt within 60 days, as
required under Section 13(4) of the Sexual Harassme nt Act; (v) that the ICC
Inquiry Report dated 9 th March, 2018, beyond 60 days, is not actionable; (v i)
that under Section 13 of the Sexual Harassment Act, whether there is a
‘proved allegation’, is to be decided by the employ er upon consideration of
the ICC report; however the ICC Inquiry Report date d 9 th March, 2018 was
never placed before the employer i.e. the Full Cour t and there was no
occasion for the employer i.e. the Full Court to de cide, whether there is
proved allegation against the petitioner; (vii) tha t the proceedings never
entered the domain of Section 13(3)(i) of the Sexua l Harassment Act lest
thereafter of the AIS Rules; (viii) that had the IC C report been accepted by
the Full Court, the Full Court would have ordered a departmental inquiry
under the AIS Rules against the petitioner; (ix) th at though qua the ICC
Inquiry Report dated 5 th November, 2016 such an inquiry was ordered and
held but not vis-à-vis the Inquiry Report dated 9 th March, 2018; (x) that the
Full Court, after the judgment dated 21 st August, 2019 of the Supreme
Court, did not appoint any Inquiring Authority unde r Rule 8(2) of the AIS
Rules; (xi) that there was no Inquiring Authority t ill the impugned
communication dated 17 th April, 2020; (xii) that since there was no
Inquiring Authority, there was no inquiry or inquir y report; (xiii) that the
penalty imposed upon the petitioner is without any Inquiring Authority,
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inquiry under the service rules and inquiry report against the petitioner; (xiv)
that the impugned document dated 17 th April, 2020 is an intimation that the
petitioner was dismissed from service and no dismis sal order was ever
passed; (xv) that being a dismissal without a dismi ssal order, Article 311 of
the Constitution of India has been violated; (xvi) that the complaint against
the petitioner was false and for this reason only w as not accompanied with
any affidavit; (xvii) that the initial ICC held pro ceedings under the OM
dated 16 th July, 2015 and which is not permissible under Rule 3 of CCS
CCA Rules; (xviii) that the initial ICC did not fin d anything against the
petitioner; (xix) that ICC Inquiry Report dated 5 th November, 2016 was
concealed from the petitioner; and, (xx) that the S upreme Court, to cure the
concealment of ICC Inquiry Report dated 5 th November, 2016 and to cure
the violation of the right of appeal under Section 18, held that the Inquiry
Report dated 9 th March, 2018 was the ICC report under Section 13 of the
Sexual Harassment Act.
8. The counsel for the respondent has argued, (a) t hat the High Court’s
control on Judicial Officers is full and exclusive and powers under Article
235 of the Constitution of India are not circumscri bed by any statute, rule or
order, including the Sexual Harassment Act; relianc e is placed on State of
West Bengal Vs. Nripendra Nath Bagchi AIR 1966 SC 447; (b) that the
scope of interference under Article 226 of the Cons titution of India is very
narrow in cases concerning Judicial Officers; relia nce, besides on the
judgment dated 21 st August, 2019 of the Supreme Court in Writ Petition
705/2018, is also placed on Rajendra Singh Verma Vs. Lieutenant
Governor (2011) 10 SCC 1, Registrar General, High Court of Patna Vs.
Pandey Gajendra Prasad (2012) 6 SCC 357, R.R. Parekh Vs. High Court
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of Gujarat (2016) 14 SCC 1 and Rajasthan High Court Vs. Ved Priya 2020
SCC OnLine SC 337; (c) that the standards of behavi our expected from a
Judicial Officer are higher, as judicial service is not mere employment but
public office of great trust and responsibility; re liance is placed on High
Court of Judicature at Bombay Vs. Shashikant S. Pat il (2000) 1 SCC 416;
(d) that the Supreme Court, in its judgment dated 2 1 st August, 2019 has
already held that non-supply of Inquiry Report date d 5 th November, 2016
did not prejudice the petitioner and that the Inqui ry Report dated 9 th March,
2018 was the relevant report envisaged under Sectio n 13 of the Sexual
Harassment Act; (e) that the Inquiry Report dated 9th March, 2018 was
placed before and considered by the Full Court on 2 5 th April, 2018, when
vide Resolution of the said date, the petitioner wa s called upon by letter
dated 15 th May, 2018 to submit his written representation or submissions, if
so desired, against the finding of the Inquiring Au thority within the meaning
of Rule 9(2) of the AIS Rules; (f) that the Inquiry Report dated 9 th March,
2018, in paragraph 67 thereof specifically reports that “there is sufficient
material brought on record to establish the unwelco me sexually determined
behavior” and that the petitioner was “liable for d isciplinary action”; (g) that
thus the Inquiring Authority categorically conclude d that the allegation of
sexual harassment against the petitioner was proved ; (h) that even though
the respondent was not obligated to, in the interes t of fairness, an initial fact
finding exercise was done which culminated in the I nquiry Report dated 5 th
November, 2016 and whereafter a full-fledged inquir y, culminating in the
Inquiry Report dated 9 th March, 2018, was conducted; (i) that the ICC
established under Section 4 of the Sexual Harassmen t Act and the Inquiring
Authority under the service rules in cases pertaini ng to sexual harassment,
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are one and the same body; (j) that the petitioner has been treated fairly in
the inquiry process and has had the opportunity to examine and cross-
examine witnesses with the benefit of assistance of counsel and senior
counsel; (k) that the inquiry was in accordance wit h the applicable rules; (l)
that there was no need for two separate inquiries; reliance is placed on
Sonali Badhe Vs. Ashish Chandra Singh MANU/DE/3852/2015 (DB); (m)
that a belated challenge to the inquiry, after part icipating in the same, is not
permissible; reliance is placed on Additional District & Sessions Judge ‘X’
Vs. Registrar General, High Court of Madhya Pradesh (2015) 4 SCC 91;
(n) that a technical infirmity cannot be allowed to defeat a legitimate
complaint, the veracity of which has been extensive ly scrutinized; reliance is
placed on Pankaj Kumar Vs. Union of India 2017 SCC OnLine Tri 57; (o)
that the Full Court, in its meeting held on 20 th January, 2020 considered the
representations dated 11 th October, 2019, 30 th October, 2019 and 9 th
December, 2019 filed by the petitioner and again pe rused the Inquiry Report
dated 9 th March, 2018 and resolved, in view of the gravity o f the charge and
the evidence adduced, to impose major penalty of di smissal from service;
(p) that accordingly, vide letter dated 16 th March, 2020, the Hon’ble Lt.
Governor, GNCTD communicated his approval to the pe titioner’s dismissal
and the same was communicated by the Registrar Gene ral of this Court vide
impugned letter dated 17 th April, 2020 to the District & Sessions Judge
(HQs), Tis Hazari Courts, for onward delivery to th e petitioner; and, (q) that
the recommendation of the Full Court was binding on the Hon’ble Lt.
Governor, GNCTD and letters dated 17 th April, 2020 and 16 th March, 2020
reflect the opinion of the Full Court and the same is not to be ordinarily
interfered with; reliance is placed on Rajendra Singh Verma supra.
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9. We have perused the pleadings and the documents. We have also
considered the respective contentions.
10. The petitioner, in or about the month of June, 2018 i.e. after receiving
a copy of the Report dated 9 th March, 2018 under cover of Memorandum /
Letter dated 15 th May, 2018 of this Court, preferred Writ Petition
No.705/2018 to the Supreme Court, seeking (a) quash ing of the Resolution
dated 13 th July, 2018 of the Full Court as well as all subseq uent Resolutions
dated 19 th July, 2016, 16 th November, 2016, 23 rd February, 2017 and 6 th
July, 2017 of the Full Court, in relation to the in quiry culminating in the
Report dated 9 th March, 2018, on the ground of the same being arbit rary,
without jurisdiction and violative of the Sexual Ha rassment Act and Articles
14 and 21 of the Constitution of India; (b) quashin g of the proceedings of
the ICC; (c) quashing of the charge sheet dated 23 rd February, 2017 issued to
the petitioner; (d) quashing of the Report dated 9 th March, 2018 of the ICC
along with all proceedings leading thereto; and, (e ) quashing of the
Letter/Memorandum dated 15 th May, 2018 of this Court, forwarding the
Report dated 9 th March, 2018 to the petitioner and giving opportuni ty to the
petitioner to file representation thereagainst.
11. The Supreme Court, in its judgment dated 21 st August, 2019 in the
aforesaid petition, (a) in paragraph 2.4 has found/ recorded that the Inquiry
Report dated 9 th March, 2018 was placed before the Full Court in it s meeting
held on 25 th April, 2018 and the Full Court resolved to forward the inquiry
report to the petitioner and to ask him to submit h is written representations;
(b) in paragraph 19 has recorded the contention of the petitioner that on the
basis of the inquiry report by ICC, as envisaged in Sections 11 & 13 of the
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Sexual Harassment Act, the High Court could not hav e taken a decision to
initiate the inquiry or to suspend the petitioner a nd in paragraph 22 has
rejected the said contention reasoning that the pro visions of Sections 11 and
13 of the Sexual Harassment Act in no manner affect the control of the High
Court with respect to the Judicial Officers, under Article 235 of the
Constitution of India and that the Full Court of th e High Court is in no
manner precluded from initiating disciplinary inqui ry against the petitioner
and placing the petitioner under suspension, on bei ng satisfied that sufficient
material existed; (c) in paragraph 22 has held that there was no error in the
decision dated 13 th July, 2016 of the Full Court, to suspend the petit ioner
and initiate inquiry proceedings against the petiti oner; (d) in paragraph 23
has recorded the contention of the petitioner that the copy of the report dated
5th November, 2016 was not supplied to him, denying to him the right to
appeal thereagainst and in paragraph 24 rejected th e said contention, holding
that the Report dated 5 th November, 2016 was a preliminary inquiry report,
only opining that an inquiry should be held and was not a report under
Section 13 of the Sexual Harassment Act; (e) in par agraph 24, to have
further held that the Report dated 9 th March, 2018, which had been
admittedly supplied to the petitioner, was the repo rt under Section 13 of the
Sexual Harassment Act and whereagainst right of app eal was available
under Section 18 of the said Act; and, (f) in parag raph 25, held that the said
right of appeal under Section 18 of the Sexual Hara ssment Act is given only
when the report is submitted under Section 13 to th e employer and further
held that no prejudice had been caused to the petit ioner due to non-supply of
Report dated 5 th November, 2016.
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12. Having considered the challenge made by the pet itioner before the
Supreme Court and the judgment thereon, we are of t he view that the
challenges as made in this petition, on the grounds of (a) action having been
initiated against the petitioner on the basis of co mplaints of Ms. M which
were not supported by affidavits; (b) the grounds o f suspension having not
been communicated to the petitioner and the complai nts of Ms. M having
not been furnished to the petitioner; (c) the copy of the Report dated 5 th
November, 2016 having not been furnished to the pet itioner; and, (d) the
petitioner having been exonerated after 5 th November, 2016, are no longer
available to the petitioner. The said grounds go t o the root of initiation of
proceedings against the petitioner and were agitate d by the petitioner before
the Supreme Court. The Supreme Court however held the proceedings
culminating in the Report dated 9 th March, 2018 to have been validly
instituted against the petitioner.
13. Though the factual narration in the pleadings o f the petitioner is
lengthy but a perusal of the arguments including wr itten arguments on
behalf of the petitioner, as narrated above, shows the questions arising for
adjudication in this petition to be limited. The arguments of the petitioner,
as succinctly recorded in the written arguments of his advocate, are (I) that
the Full Court, in the meeting on 16 th November, 2016 accepted the
Preliminary Inquiry Report dated 5 th November, 2016 of the ICC and
resolved that disciplinary proceedings for major pe nalty under Rule 8 of the
AIS Rules be initiated against the petitioner; the Report dated 9 th March,
2018 which was considered by the Full Court on 25 th April, 2018 was the
report of the said proceedings and considered by th e Full Court from the
said perspective; however the Supreme Court in its judgment dated 21 st
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August, 2019 held the Report dated 9 th March, 2018 to be a report of the
ICC under Section 13 of the Sexual Harassment Act; the Full Court, after
the judgment dated 21 st August, 2019, has not considered the Report dated
9th March, 2018 as a report of ICC under Section 13 of the Sexual
Harassment Act and has not accepted the same as of “proved allegation” of
sexual harassment against the petitioner and the ti me therefor has lapsed and
thus the dismissal order as a consequence thereof i s bad; and, (II) that if the
Report dated 9 th March, 2018, as a report under Section 13 of the S exual
Harassment Act, was considered by the Full Court an d had been found to
contain a “proved allegation” of sexual harassment against the petitioner, the
Full Court was required to then appoint an Inquirin g Authority and conduct
inquiry under the AIS Rules.
Though the counsel for the petitioner in his writt en arguments has not
crystallized but yet another argument arising from the pleadings of the
petitioner and permeating through the verbal hearin g, of the counsel for the
petitioner is, that the petitioner has been denied right of appeal under
Section 18 of the Sexual Harassment Act.
14. We now proceed to adjudicate hereunder the afor esaid arguments on
behalf of the petitioner, to gauge whether there is any merit therein. If any
merit were to be found therein and if it were to be found that the petitioner
has not been dealt with in accordance with the proc edure prescribed by law,
undoubtedly the petitioner should get benefit there of. Else, as far as the
conclusion reached in the Report dated 9 th March, 2018 that the allegations
in the complaint of Ms. M against the petitioner, o f sexual harassment at
workplace, have been proved, is concerned, neither has the counsel for the
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petitioner addressed any argument on the same nor d o we, after having
judicially examined the said report, find any flaw whatsoever therein; rather,
having judicially examined the report, not only as to the procedure followed
and opportunities at each and every stage provided to the petitioner but also
on merits, we are more than convinced, of the concl usion having been
rightly drawn on the basis of material on record, t hat the allegations of
sexual harassment against the petitioner, stand pro ved.
15. As far as the first of the aforesaid arguments of the counsel for the
petitioner is concerned, the counsel for the petiti oner has not been able to
controvert and could not have possibly controverted the contentions of the
counsel for the respondent on the basis of statutor y provisions, that (i) the
DHJS Rules applicable to the petitioner do not expr essly provide a
procedure for disciplinary inquiry into allegations of misconduct by the
DHJS Officers and in the absence whereof resort has to be had to Rule 27
thereof providing that for all matters for which no provision is made in the
DHJS Rules, the Rules applicable to Officers of com parable status in the
IAS, apply; (ii) vide Resolution dated 27 th July, 2015, this Court resolved,
that for the purposes of disciplinary action agains t a DHJS Officer on
allegations of sexual misconduct, AIS Rules which a re applicable to
Officers of comparable status in the IAS, would app ly; (iii) Rule 8 of the
AIS Rules provides for the Disciplinary Authority t o, if of the opinion that
there are grounds for inquiring into the truth of a ny imputation of
misconduct or misbehaviour against a member of the service, appoint an
authority to inquire into the truth thereof; and, ( iv) in accordance with the
proviso to Rule 8(2) of the AIS Rules, in case of a complaint of sexual
harassment, the Complaints Committee (ICC) for such complaints shall be
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deemed to be the Inquiring Authority appointed by t he Disciplinary
Authority for the purposes of the AIS Rules.
16. Once such is the legal/statutory scheme, no err or or irregularity can be
found in, the Full Court, in its meeting dated 16 th November, 2016, after
considering the Report dated 5 th November, 2016 of the ICC (which the
Supreme Court has held was in the nature of Prelimi nary Inquiry Report, not
required to be furnished to the petitioner), having resolved that disciplinary
proceedings for imposition of major penalty under R ule 8 of the AIS Rules
be initiated against the petitioner and in its meet ing dated 6 th July, 2017,
after considering the written statement of defence of the petitioner to the
Memorandum of Charges issued to the petitioner havi ng resolved to hold an
inquiry and having appointed the ICC as the Inquiri ng Authority to inquire
into the charges framed against the petitioner and which ICC submitted the
Report dated 9 th March, 2018.
17. The Supreme Court also, though without expressl y mentioning
proviso to Rule 8(2) of the AIS Rules (albeit plead ed in the counter affidavit
filed by this Court before the Supreme Court) held the Report dated 9 th
March, 2018 of the Inquiring Authority aforesaid, a ppointed pursuant to
meetings supra held on 5 th November, 2016 and 6 th July, 2016, to be the
report of the ICC.
18. Once the aforesaid position becomes clear, it s hows the sheer
hollowness of the first argument aforesaid of the c ounsel for the petitioner.
The Inquiring Authority under the AIS Rules read in to the DHJS Rules and
the ICC under the Sexual Harassment Act, in the sta tutory scheme, are one
and the same and not two separate entities, require d to conduct two separate
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inquiries/proceedings. The Supreme Court also, in its judgment dated 21 st
August, 2019 held the Report dated 9 th March, 2018 to be the report of ICC.
Thus, the Full Court, when in the meeting dated 25 th April, 2018, after
considering the Report dated 9 th March, 2018, resolved to call upon the
petitioner to submit his written representations/su bmissions against the
findings of the Inquiring Authority (and which in l aw, as aforesaid, is also
the ICC), accepted the Report dated 9 th March, 2018 and was not required
to, after the judgment dated 21 st August, 2019 of the Supreme Court, again
consider the Report dated 9 th March, 2018 or to again accept the same.
Merely because in the communication dated 15 th May, 2018 to the petitioner
in pursuance to the Resolution dated 25 th April, 2018 of the Full Court, the
petitioner was called upon to submit his written re presentation against the
finding of the Inquiring Authority (and which in la w, as aforesaid, is also the
ICC) and did not call upon the petitioner to submit his written representation
against the finding of ICC in the Report dated 9 th March, 2018, is not an
irregularity or infarction of the procedure prescri bed by law, as sought to be
made out by the counsel for the petitioner. Moreov er, the counsel for the
petitioner has stopped shy from arguing the prejudi ce if any suffered by the
petitioner therefrom. As aforesaid, the petitioner made as many as three
representations against the findings in the Report dated 9 th March, 2018, all
after the judgment dated 21 st August, 2019 of the Supreme Court and
wherefrom the petitioner knew that he was represent ing against the report of
the ICC.
19. It may also be emphasized that the Supreme Cour t, at the time of
pronouncing on 21 st August, 2019, was seized of the Resolution dated 2 5 th
April, 2018 and the communication dated 15 th May, 2018 to the petitioner in
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pursuance thereto, but did not direct that the Full Court considers the Report
dated 9 th March, 2018 afresh, as a report of the ICC, having in the meeting
held on 25 th April, 2018 not considered the same as the report of the ICC but
having considered the same as a report of the Inqui ring Authority. Rather,
the two are one and the same and the petitioner has made a bogey of the
same being different.
20. We thus do not find any merit in the first of t he aforesaid contentions
of the counsel for the petitioner.
21. In the light of the above discussion, the secon d contention of the
counsel for the petitioner also has to axiomaticall y fail. When under the
proviso to Rule 8(2) of the AIS Rules, the ICC is d eemed to be the Inquiring
Authority appointed by the Disciplinary Authority f or the purposes of AIS
Rules, the Full Court, after considering and accept ing the Report dated 9 th
March, 2018, which has been held by the Supreme Cou rt to be the report of
the ICC, was not required to appoint an Inquiring A uthority under the AIS
Rules. The law, as noticed above, in the case of D HJS Officers, does not
provide for two rounds of inquiry, first by the ICC under the Sexual
Harassment Act and thereafter by the Inquiring Auth ority under the DHJS
Rules read with AIS Rules. We thus do not find any merit in the second
contention also of the counsel for the petitioner.
22. That leaves the argument, though not made in th e written arguments
of the counsel for the petitioner, of the petitione r having been deprived of
right of appeal under Section 18 of the Sexual Hara ssment Act.
23. In the context thereof, we find merit in the co ntentions of the counsel
for the respondent, (a) of the petitioner having av ailed of the said right after
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the judgment dated 21 st August, 2019 of the Supreme Court, by filing
W.P.(C) 10653/2019 and FAO No.403/2019 but both of which were
withdrawn with liberty to take appropriate steps an d whereafter
representations against the findings in Report date d 9 th March, 2018 were
made and which were considered by the Full Court in its meeting dated 28 th
January, 2020 and having thus already exercised the said right; and, (b) the
said right of appeal under Section 18 of the Sexual Harassment Act being
required to be read in terms of Article 235 of the Constitution of India which
vests the control over persons belonging to judicia l service of a State in the
High Court and which in the judgment dated 21 st August, 2019 supra also
has been reiterated to include disciplinary control over District Judges and
Judges inferior to the post of District Judge.
24. Section 18 of the Sexual Harassment Act confers on any person
aggrieved from the recommendation of the ICC (a) th at the allegation of
sexual harassment has not been proved; or, (b) that the allegation of sexual
harassment has been proved and to take action for s exual harassment as
misconduct in accordance with the provisions of the service rules applicable,
a right of appeal to the Court or Tribunal in accor dance with the provisions
of the service rules applicable and where no such r ules exist, in such manner
as may be prescribed. The counsel for the petition er has not cited any
service rules applicable to DHJS Officers in this r egard. We have even
otherwise wondered, before which authority or body such appeal can be
made by the DHJS Officers, considering the interpre tation as noticed by the
Supreme Court in the judgment dated 21 st August, 2019 also, of Article 235
of the Constitution of India. We have further wond ered whether not
provision of such appeal before whichsoever body/au thority would impinge
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on Article 235. Though the Central Government, in exercise of powers
under Section 29 of the Sexual Harassment Act, has made the Sexual
Harassment of Women at Workplace (Prevention, Prohi bition and
Redressal) Rules, 2013 and the same, in Rule 11, su bject to the provisions of
Section 18 of the Act, provides for appeal to the A ppellate Authority
notified under Clause (a) of Section 2 of the Indus trial Employment
(Standing Orders) Act, 1946, but we have wondered, whether the finding if
any returned by the said Authority would be binding on the High Court in
exercise of its functions under Article 235 of the Constitution of India and
are unable to persuade ourselves to hold so. In ou r opinion, though under
the Sexual Harassment Act, on receiving the report of the ICC, of the
allegations having been proved, the Disciplinary Au thority is bound to take
action for sexual harassment as a misconduct but th e Full Court, as a
Disciplinary Authority, in the light of Article 235 , cannot be said to be so
bound and would remain entitled to give an opportun ity to a judicial officer
to represent against the finding and after consider ing the representation, to
take such action as the Full Court may deem apposit e, notwithstanding the
finding of ICC, and the said procedure, which has b een followed in the
present case, more than subserves the purpose of ap peal under Section 18 of
the Sexual Harassment Act. The Full Court as the D isciplinary Authority,
under Rules 8 & 9 of the AIS Rules also, after rece ipt of report of the
Inquiring Authority, was only required to give oppo rtunity to the petitioner
to represent thereagainst and to, after considering the said representation,
impose penalty and which has also been done in the present case. Thus, no
force is found in the said argument also of the cou nsel for the petitioner.
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25. Notice may also be taken of Dinesh Chandra Mishra Vs. India
Council of Agriculture Research 2019 SCC OnLine Del 8891 where a
Coordinate Bench of this Court, dealing with a cont ention of Section 18 of
the Sexual Harassment Act held that (i) Section 18 itself provides that the
appeal has to be in accordance with the provisions of the Service Rules
applicable to the person concerned; (ii) where the person concerned is
governed by the CCS CCA Rules, the said Rules speci fically provide that
the inquiry conducted by the ICC would be treated a s one held under the
CCS CCA Rules by an Inquiring Authority appointed b y the Disciplinary
Authority and the same shall be acted upon in terms of the said Rules; (iii)
the report of the ICC in respect of an employee gov erned by the CCS CCA
Rules is not per se actionable and would be considered by the Discipli nary
Authority; and, (iv) appeal under Section 18 of the Sexual Harassment Act
is provided in cases where the recommendation of th e ICC itself is final and
is ipso facto binding and enforceable under Section 13(4) of the Sexual
Harassment Act and which is not the position in cas e of a person governed
by CCS CCA Rules. Thus, in accordance with the sai d judgment also, the
petitioner had no right of appeal. Another Divisio n Bench of this Court, in
vide order dated 5 th October, 2018 in LPA No.72/2018 titled Dr. Tejinder
Kaur Vs. Union of India , dismissed the appeal against the dicta of the
Single Judge in Tejinder Kaur Vs. Union of India 2017 SCC OnLine Del
12221 also holding that in case of the person conce rned being governed by
the CCS CCA Rules, the ICC has a dual role. Suprem e Court also in Medha
Kotwal Lele Vs. Union of India (2013) 1 SCC 297, before the coming into
force of the Sexual Harassment Act, while issuing d irections for
implementation of Vishaka Vs. State of Rajasthan (1997) 6 SCC 241,
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directed the States and the Union Territories, whic h till then had not carried
out adequate and appropriate amendments in their re spective Civil Services
Conduct Rules to in their Rules provide that the re port of the ICC shall be
deemed to be an inquiry report in a disciplinary ac tion and that the
Disciplinary Authority shall treat the report/findi ngs etc. of the ICC as the
findings in a disciplinary inquiry against the deli nquent employee and shall
act on such report accordingly. This again indicat es that no two inquiries
are contemplated.
26. Resultantly, the petition is dismissed.

RAJIV SAHAI ENDLAW, J.

ASHA MENON, J.
JANUARY 29, 2021
‘bs’
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