IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.585 of 2010 1. Hari Narayan S/O Late Bachchu Gope R/O Vill Rudauly, P.S.Bachhwara,Distt-Begusarai Versus 1. The State Of Bihar 2. The Principal Secretary, Home (Police)Department Govt. Of Bihar, Patna 3. The Director General Of Police Govt. Of Bihar,Patna 4. The Inspector General Of Police ,Crime Investigation Department Bihar, Patna 5. The Superintendent Of Police Crime Investigation Department Government Of Bihar, Patna 6. The Joint Secretary, Department Of Home (Police) Department Government Of Bihar, Patna 7. The Deputy Secretary, Department Of Home (Police) Government Of Bihar ---------------------------------- 3/ 02/09/2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 29.8.2008 imposing punishment for stoppage of two increments at the minimum of the scale for three years and stopping promotion for three years in pursuance of a departmental proceeding. Learned counsel for the petitioner submits that for the same occurrence the petitioner was given a show cause notice on 25.11.2006 duly replied. On 9.3.2007 the disciplinary authority closed the matter after issuance of a warning. Subsequently, the punishment of censure was also entered in his character role in pursuance of orders dated 30.5.2007/5.6.2007 appended to the supplementary 2 affidavit. On the same charge a fresh show cause notice was again given on 8.6.2007 leading to framing of charges on 12.12.2007. There cannot be two punishments for the same allegations. A further submission has been made that the petitioner was asked to file his reply to the charges within seven days on the same day that the conducting officer was appointed which is evidence of the mala fide intentions of the respondents to somehow punish the petitioner. Learned counsel for the State submitted that warning was not a punishment. The matter was simply closed on 9.3.2007 without any finding on the allegations. The orders dated 30.5.2007 and 5.6.2007 do not conclusively establish that the punishment of censure was actually entered in his character role at any point of time. Given the nature of the allegations of gender harassment, there was no illegality in the framing of charges on 12.12.2007. The petitioner has not been able to point out any infirmity in the departmental proceedings to warrant interference. He had full opportunity to present his defence, examine the complainant and other witnesses. On 25.11.2006 the petitioner was served a show cause notice for unbecoming behaviour and use of abusive language against a tribal lady peon Smt. Jeramina Tirky. The specific instances of gender harassment were itemized 3 under 14 heads based on written allegations of the complainant dated 8.4.2002. The petitioner submitted his reply on 11.12.2006. The Court finds that there is no denial of the occurrence or allegations by him except for a bald assertion that the allegations were fictitious, without foundation and devoid of truth. The Superintendent of A.T.S., Crime Investigation Department, on 9.3.2007 closed the matter opining only that the relationship between the parties did not appear to be very cordial, the matter was stale and the complainant was not desirous to pursue matters any further as there had been no further misbehaviour with her. The petitioner has further relied on an affidavit given by the complainant dated 17.11.2002 declining that any such occurrence had taken place. On 8.6.2007 a fresh show cause notice was given to the petitioner, which he duly replied that the matter had been closed earlier on 9.3.2007 and it was unnecessarily sought to be revived. There was no denial again of the allegations on merits. The memo. of charge followed on 12.12.2007 under three heads. The first two related to gender harassment to the complainant and the third related to his conduct contrary to the provisions of the Scheduled Castes/Scheduled Tribe (Prevention of Atrocities) Act. The charges were accompanied by necessary documentary evidence. The complainant was 4 examined and supported the allegations. The petitioner cross examined her also. Two further witnesses indirectly supported the allegations. The petitioner was given full opportunity to present his defence. He declined participation in the proceedings when the documents were being proved by the prosecution and walked out of the proceedings. The enquiry officer submitted his report on 27.6.2008 returning the finding that the charges had been proved. Dealing with the documents demanded by him, the enquiry officer held that such documents were not relevant to the enquiry. The petitioner alleges that the enquiry report was not given to him along with a second show cause notice furnishing him an opportunity to defend himself again. There is no infallible rule that in every departmental proceeding the enquiry report must be furnished along with a second show cause notice failing which the enquiry shall stand vitiated. The judicial view now is that prejudice has to be demonstrated for the Court to hold that the proceedings stand vitiated on that ground as explained in (2008) 9 SCC 31, (Haryana Financial Corporation v. Kailash Chandra Ahuja,) :- “44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the 5 delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show “prejudice”. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.” . The petitioner at no stage has taken the defence that no such occurrence had taken place. He had full opportunity of defence. The complainant proved the charge and the petitioner cross examined her also. No better evidence of the allegation could have come than from the complainant herself, more so, in a departmental proceeding where the standards of proof are not as strict as in a criminal trial. Once the allegations are not denied, the Court finds it difficult to uphold the objection of prejudice by non supply of the enquiry report or a second show cause notice. If the occurrence and other facts are not in dispute, the giving of a second show cause notice would have been but an empty formality. The Court therefore holds that there is no infirmity in the order of punishment dated 29.8.2008. In (2006)2 SCC 269 (L.K. Verma v. HMT Ltd) it has 6 been held that if the charges are not denied procedural infirmities are irrelevant as admitted charges need not be proved: 11. In the departmental proceedings, the appellant herein did not deny or dispute that he had used indecent language and also abused the officer. 16. Once the appellant accepted that he made utterances which admittedly lacked civility and he also threatened a superior officer, it was for him to show that he later on felt remorse therefor. If he was under tension, he, at a later stage, could have at least tendered an apology. He did not do so. Furthermore, before the enquiry officer, the witnesses were examined for proving the said charges. The officer concerned, namely, Shri Sinha had also submitted a report mentioning the incident of misbehaviour of the appellant on 18-5- 1996. The enquiry officer came to the conclusion that both the management and the witnesses corroborated each other's statements and although they had been cross-examined thoroughly, no contradiction was found in their statements in regard to the said charge. That allegations of gender harassment were a serious matter not to be treated lightly has been emphasized in (1997) 6 SCC 241 (Vishaka v. State of Rajasthan) :- 3. Each such incident results in violation of the fundamental rights of “Gender Equality” and the “Right to Life and Liberty”. It is a clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim's 7 fundamental right under Article 19(1)(g) “to practise any profession or to carry out any occupation, trade or business”. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. This class action under Article 32 of the Constitution is for this reason. A writ of mandamus in such a situation, if it is to be effective, needs to be accompanied by directions for prevention, as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a “safe” working environment. Right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.” The respondents have acted in accordance with the direction of the Supreme Court in (2009)2 SCC 210 (D.S. Grewal Vs. Vimmi Joshi & Ors.) by holding a preliminary enquiry for their satisfaction before proceeding to frame charges and holding a regular departmental proceeding. But, if the contention of the petitioner that the punishment of censure has already been awarded to him, the defence of the respondents that the Superintendent of 8 A.T.S., Crime Investigation Department, had no authority to do so and that the Deputy Secretary to the Government alone was competent to do so is hardly relevant. No double punishment can be imposed on the same allegations. The communications dated 30.5.2007 and 5.6.2007 certainly suggest taking of steps for making such entries in his service book. Perhaps, a clear stand in the counter affidavit on the issue could have facilitated a conclusive decision. Without interfering with the order of punishment 29.8.2009, the matter is remanded to the respondent No.2 to examine the service records of the petitioner and decipher whether or not any censure has been entered in his character role for the same occurrence prior to the present order of punishment. If that be so, the present punishment dated 29.8.2008 shall not be sustainable and will be required to be set aside. Conversely, if no punishment has been entered in his character role for the present occurrence, the order of punishment shall require no interference. Let respondent No.2 pass such fresh appropriate reasoned and speaking order within a maximum period of two months. It is expected that if the respondent finds justification in the claim or in any part of the claim, necessary consequential orders shall be issued 9 simultaneously. The application stands disposed. KC ( Navin Sinha, J.)