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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITOIN (CIVIL) NO.705 OF 2018

P.S. MALIK        ...PETITIONER(S)

VERSUS

HIGH COURT OF DELHI & ANR.        ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

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

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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

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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.

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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

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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

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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

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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

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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

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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 non-

compliance  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

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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

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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

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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

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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

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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)

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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

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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.

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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

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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

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(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

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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

21

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

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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.

XXXXXXXXXXXXXXXX”

20. Chapter  V  deals  with  inquiry  into  complaint  and

Section 13 deals with inquiry report, which is to the

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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

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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

25

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

26

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

27

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  sub-

section(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

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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

29

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.