DR. P. S. MALIK versus HIGH COURT OF DELHI & ANR. on 21 August 2019

[2019] 12 S.C.R. 957

DR. P. S. MALIK

v.

HIGH COURT OF DELHI & ANR.(Writ Petition (Civil) No.705 of 2018)

AUGUST 21, 2019

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Constitution of India – Arts.233 and 235 – Petitioner wasworking as Additional District Judge at Dwarka, New Delhi –Writtencomplaints submitted against the petitioner, to the Chief Justice ofthe High Court of Delhi, by a lady Junior Judicial Assistant whoworked as Ahlmad in the petitioner’s Court from 18.05.2015 to18.05.2016 alleging sexual harassment at work place– On13.07.2016, the petitioner was placed under suspension – InternalComplaints Committee constituted – Preliminary Report submittedto the Full Court of the High Court opining that disciplinary inquirybe held against the petitioner – Full Court resolved to hold theinquiry – Inquiry Report dated 09.03.2018 submitted by theCommittee – Petitioner has filed the present writ petition inter aliasubmitting that there being an Inquiry Report by Internal ComplaintsCommittee as envisaged by ss.11 and 13 of the 2013 Act, the HighCourt could not have decided to initiate the inquiry or suspend thepetitioner – Held: Petitioner is member of Judicial Service for whichdisciplinary authority is the High Court – The word “control”occurring in Art.235 means not only the general superintendenceof the working of the Courts but includes the disciplinary controlof the judicial officers, i.e., the district judges and judgessubordinate to him – High Court can initiate disciplinary proceedingsagainst judicial officers – Power to suspend the judicial officervests in the High Court– Under the 2013 Act, complaint mechanismand mechanism for constitution of the Internal ComplaintsCommittee, mechanism to inquire the complaint, are all for protectionof dignity and welfare of women at workplace – Provisions of ss.11,13 in no manner affect the control of the High Court u/Art.235 withrespect to judicial officers– Full Court of the High Court is in nomanner precluded from initiating disciplinary inquiry against thepetitioner and placing him under suspension on being satisfied that

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Asufficient material existed – No error in the decision of the FullCourt dated 13.07.2016 – Further, submission of the petitioner thatdue to non-supply of Preliminary Inquiry Report dated 05.11.2016,the proceedings have been vitiated, not accepted – Only limitedissues as pressed by the petitioner have been considered –Disciplinary proceedings against the petitioner still underway – ItBis open for the petitioner to raise all pleas of facts and law beforethe appropriate authority – Sexual Harassment of Women atWorkplace (Prevention, Prohibition and Redressal) Act, 2013 –Chapters II, IV & V – ss.4, 11 and 13 – All India Services (Disciplineand Appeal) Rules, 1969 – r.8.C

Sexual Harassment of Women at Workplace (Prevention,Prohibition and Redressal) Act, 2013 – ss.11, 13 and 18 – Complaintof sexual harassment at work place made against the petitioner,judicial officer in Delhi Higher Judicial Services, by an employeein his Court – Present writ petition filed by the petitioner inter aliaDsubmitting that copy of the Preliminary Inquiry Report not beingsupplied to him, he has been denied right to appeal – Held:Preliminary Inquiry Report dated 05.11.2016 did not contain anyfindings on allegations made against the petitioner – It only opinedthat inquiry should be held – Even u/s.11(1) in the second proviso,

Conclusion

the only contemplation is to make available a copy of the findings –EThus, the report in which there are no findings, parties are not entitledto have the copy – Inquiry Report referred in s.13 is the Reportwhich has been submitted by Internal Complaints Committee aftercompletion of the inquiry – Inquiry Report by Internal ComplaintsCommittee dated 09.03.2018 was admittedly supplied to theFpetitioner– Right of appeal given against the recommendation madeu/s.13(2) or (3) are appealable u/s.18– Thus, the right of appeal isgiven to an aggrieved person only when report is submitted u/s.13to the employer – No prejudice caused to the petitioner by non-supply of Report dated 05.11.2016.

GDismissing the writ petition, the Court HELD: 1.1 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 refer to twodistinct powers. The first is power of appointment, posting andHpromotion of District Judges and second is power of control over Judicial Officers of the State. The word “control” occurring inArticle 235 means not only the general superintendence of theworking of the Courts but includes the disciplinary control of thejudicial officers, i.e., the district judges and judges subordinateto him. The word “control” used in Article 235 has been held bySupreme Court to be disciplinary control. Disciplinary authoritywith regard to judicial officers is the High Court and it is theHigh Court, which can initiate the disciplinary proceedings againstjudicial officers. The High Court can also suspend a member ofthe judiciary. Insofar as dismissal or removal is concerned, thesaid orders are required to be passed by the Governor on therecommendation of the High Court. The fact that the orders ofdismissal or removal are issued by the approval of the Governorin no manner denude the disciplinary control of the High Court.[Paras 9, 14 and 16] [967-D-E; 971-A; 972-G-H]

1.2 The petitioner in the present case is a member of JudicialService for which disciplinary authority is the High Court. TheSexual Harassment of Women at Workplace(Prevention,Prohibition and Redressal) Act, 2013 was to provide protectionagainst sexual harassment of women at workplace and for theprevention and redressal of complaints of sexual harassment andfor matters connected therewith or incidental thereto. ChapterII of Act, 2013 deals with constitution of Internal ComplaintsCommittee. Chapter IV deals with complaint. In Chapter IV, oneof the sections is Section 11, which deals with inquiry intocomplaint. Chapter V deals with inquiry into complaint and Section13 deals with inquiry report. The Act, 2013 is a parliamentarylegislation, the preamble of which outlines the necessity oflegislation. [Paras 18-21] [974-A-C; 975-B; 976-B-C]

1.3 The provisions of the Act, complaint mechanism andmechanism for constitution of the Internal Complaints Committee,mechanism to inquire the complaint are all for protection of dignityand welfare of women at workplace. The provisions of Sections11 and 13 in no manner affect the control of the High Court underArticle 235, which it has with respect to judicial officers. Thepower to suspend the judicial officer vests in the High Court.The Full Court of the High court is in no manner precluded frominitiating disciplinary inquiry against the petitioner and placing AB

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Athe petitioner under suspension on being satisfied that sufficientmaterial existed. The High Court in its meeting dated 19.07.2016has resolved to send the complaint of the employee to the InternalComplaints Committee and the Internal Complaints Committeehaving opined that inquiry need to be held, further steps weretaken in accordance with Act, 2013. There is no error in theBdecision of the Full Court dated 13.07.2016 to suspend thepetitioner and initiate the inquiry proceedings against thepetitioner. Preliminary Inquiry Report dated 05.11.2016 did notcontain any findings on allegations made against the petitioner,Preliminary Inquiry Report only opined that inquiry should beCheld. The Inquiry Report, which has been referred to in Section13 is an Inquiry Report, which has been submitted by InternalComplaints Committee after completion of the inquiry. In thepresent case, the Inquiry Report by Internal ComplaintsCommittee is dated 09.03.2018, which has been admittedlysupplied to the petitioner, the right of appeal given against theDrecommendation made under sub-section(2) or sub-section(3) ofSection 13 are appealable under Section 18 of the Act. Thus, theright of appeal is given to an aggrieved person only when reportis submitted under Section 13 to the employer. Section 13(3)contemplates the report of Internal Complaints Committee whenEit “arrives at the conclusion that the allegation against therespondent has been proved”. It is not the case of any of theparties that the report of the Committee dated 05.11.2016 is thereport where allegation against the petitioner has been proved.Even under Section 11(1) in the second proviso, the onlycontemplation is to make available a copy of the findings. Thus,Fwhen the report in which there are no findings, parties are notentitled to have the copy. High Court in its counter affidavit haspleaded that the Report dated 05.11.2016 was not a reportcontaining any findings against the petitioner rather only opinionwas expressed that disciplinary inquiry be initiated against theGpetitioner. No prejudice can be held to be caused to the petitionerby non-supply of the Preliminary Inquiry Report dated 05.11.2016.The copy of memo of charge dated 23.02.2017 has been broughton the record, which also clearly indicates that the charge memodoes not refer to Preliminary Inquiry Report dated 05.11.2016.Thus, no prejudice can be said to have been caused to theH

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petitioner by non-supply of Report dated 05.11.2016. Thesubmission of the counsel for the petitioner that due to non-supplyof Preliminary Inquiry Report dated 05.11.2016, the proceedingshave been vitiated, not accepted. With regard to charge memodated 23.02.2017, inquiry conducted by Internal ComplaintsCommittee culminating into Report dated 09.03.2018, it is openfor the petitioner to raise all pleas of facts and law before theappropriate authority. This Court has only considered limitedissues as pressed by the petitioner. Apart from above, allquestions and issues are left open to both the parties.[Paras 22,24- 26] [976-D-F; 978-A, E-H; 979-A-C]

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State of West Bengal and Another v. Nripendra NathBagchiAIR 1966 SC 447 : [1966] 1 SCR 771;Registrar(Admn.) High Court of Orissa, Cuttack v. Sisir KantaSatapathy (Dead) by LRs. and Another(1999) 7 SCC725 : [1999] 2 Suppl. SCR 473 – followed.

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State of Tamil Nadu Rep. by Secretary to Govt.(Home)v. Promod Kumar IPS andAnother AIR 2018 SC 4060– held inapplicable.

Baradakanta Mishra v. High Court of Orissa andAnother (1976) 3 SCC 327 : [1976] Suppl. SCR 561;Rajendra Singh Verma (Dead) Through LRs. and Othersv. Lieutenant Governor (NCT of Delhi) and Others(2011) 10 SCC 1 : [2011] 12 SCR 496 – relied on.

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Chief Justice of Andhra Pradesh and Others v. L.V.A.Dixitulu and Others, (1979) 2 SCC 34 : [1979] 1 SCR26 – referred to.

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Case Law Reference

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ACIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)No. 705 of 2018

Under Article 32 of The Constitution of India Varinder Kumar Sharma, Ms. Parul Sharma, Yugal KishorePrasad, Advs. for the Petitioner.B

P. S. Narsimha, Sr. Adv., Ms. Binu Tamta, Dhruv Tamta, RahulG. Tanwani, Ms. Sindoora VNL, Advs. for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.C

1. The petitioner, A Judicial Officer in Delhi Higher JudicialServices, against whom disciplinary proceedings alleging sexualharassment is underway, has filed this writ petition under Article 32 ofthe Constitution of India praying for following reliefs:- “a. issue a writ, order or direction in the nature of certiorariDquashing the resolution of Respondent No.1, the Full Court ofDelhi High Court dated 13.07.2016 inToto, cited in the reportdated 09.03.2018 (Annexure-P-12) and also all subsequentresolutions passed by Full Court of Delhi High Court dated19.07.2016, 16.11.2016, 23.02.2017, 06.07.2017 or on any otherEdate in relation to this enquiry, cited in the report dated09.03.2018 (Annexure-P- 12) as the same are arbitrary, withoutany jurisdiction and violative of the provisions of SexualHarassment of Women at Workplace Prevention, Prohibitionand Redressal) Act of 2013, Art. 14 and Art. 21 of theConstitution of India;F

b. issue a writ, order or direction in the nature of certiorariquashing the proceedings of ICC the Respondent number 2as held by it under the Provisions of the Act of 2013.

c. issue a writ, order or direction in the nature of certiorari quashingGthe Charge sheet dated 23.02.2017 (Annexure-P-7) issuedby the Respondent No.1 on the recommendation of theRespondent No.2;

d. issue a writ, order or direction in the nature of certiorari quashingthe report dated 9.3.2018 (Annexure-P-12) of the ICC, the H

2nd Respondent herein along with all the proceedings of theRespondents leading thereto;

e. issue a writ, order or direction in the nature of certiorariquashing the letter of e Hon’ble Delhi High Court dated15.05.2018 (Annexure-P-11) issued by Respondent No.1; and

f. pass any other writ, order or direction as this Hon’ble Courtdeems 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 Judgeat Dwarka, New Delhi. On 05.07.2016, a written complaintwas submitted against the petitioner by a lady, Junior JudicialAssistant (hereinafter referred to as “employee”) allegingsexual harassment at work place. The complaint wasaddressed to the Chief Justice of High Court of Delhi. TheJunior Judicial Assistant was working as Ahlmad in the Courtof the petitioner w.e.f. 18.05.2015. She continued to work inthat capacity till 18.05.2016. Another complaint dated11.07.2016 was submitted by the employee to the ChiefJustice. Complaint submitted by the employee came forconsideration before the Full Court of the High Court on13.07.2016, which resolved as under:-

i. The Judicial Officer be placed under suspension withimmediate effect pending disciplinary proceedingcontemplated against him.

ii. The Registrar General will forward the complaint dated05.07.2016 to SHO of the concerned Police Station forappropriate action in accordance with law under intimationto this Court.

iii. Registry to take steps in anticipation of the confirmation ofthe Minutes.

2.2 The Full Court of the Delhi High Court by further resolutiondated 19.07.2016 resolved to constitute an Internal ComplaintsCommittee consisting of five members to inquire into theallegation of sexual harassment made against the petitioner.The petitioner as well as the employee appeared before the A

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Internal Complaints Committee (hereinafter referred to as“Committee”). The petitioner was suspended by order dated13.07.2016 pending disciplinary proceedings. The employeefurther submitted a detailed statement dated 28.07.2016 beforethe Committee. The petitioner submitted his reply to theCommittee on 02.09.2016. On 19.09.2016, the Committeeinteracted with both the parties separately. On 05.11.2016,the Committee submitted a Preliminary Report to the FullCourt. By its Report dated 05.11.2016, the Committee opinedthat a disciplinary inquiry be held against the petitioner. FullCourt of the High Court in its meeting dated 16.11.2016resolved that the disciplinary proceedings for major penaltyunder Rule 8 of All India Services (Discipline and Appeal)Rules, 1969 be initiated against the petitioner.

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2.3 The memo of charges dated 22/23.02.2017 was given to thepetitioner containing, article of charges and statement ofDimputations. The petitioner submitted written statement on11.03.2017. The Full Court on 06.07.2017 considered thewritten statement of defence dated 11.03.2017 of petitionerand resolved to hold the inquiry. The Full Court resolved forconstituting a Committee in terms of Section 4 of the SexualHarassment of Women at Workplace (Prevention, ProhibitionEand Redressal) Act, 2013 (hereinafter referred to as “Act,2013”) chaired by Hon’ble Ms. Justice Hima Kohli, who wasappointed as the Inquiring Authority.

2.4 The inquiry before the Inquiring Committee proceeded andReport dated 09.03.2018 has been submitted by the InternalFComplaints Committee. The Inquiry Report submitted by theCommittee was placed before the Full Court in its meetingheld on 25.04.2018 which resolved to forward the InquiryReport to the petitioner and to ask him to submit his writtensubmissions. Full Court in its meeting dated 01.08.2018 alsoGresolved to supply certified copies of Full Court MeetingMinutes dated 13.07.2016, 19.07.2016 and 16.11.2016 to thepetitioner. High Court also resolved that since the PreliminaryInquiry Report dated 05.11.2016 has not been relied upon,the same be not supplied to the petitioner. After receipt ofthe Inquiry Report, the petitioner has filed this writ petition onH08.06.2018.

3. We have heard Shri Varinder Kumar Sharma, learned counselfor the petitioner and Shri P.S. Narsimha, learned senior counsel for therespondent.

4. Learned counsel for the petitioner contends that the Full Courtof the High Court on receiving the complaint dated 05.07.2016 did notfollow the procedure given in Act, 2013. It is submitted that Full Courtought to have handed over the complaint to the Internal ComplaintsCommittee for inquiry. Full Court erred in issuing three punitive directionson 13.07.2016 against the petitioner. The order dated 13.07.2016 waspremature being before an inquiry or opportunity to the petitioner ofbeing heard. Further, they were passed by an authority, which had nolegal competence to pass those directions under the Delhi Higher JudicialService Rules, 1970 and the All India Services Rules. There has beenblatant violation of Act, 2013 in the petitioner’s case vitiating the entireprocedure. The Committee after conducting the inquiry has submitted aReport dated 05.11.2016, which report was required to be given to thepetitioner as per Act, 2013 but was denied to the petitioner. TheCommittee having not found proved the allegation against the petitioner,Full Court ought not to have proceeded to impose penalty against thepetitioner. The respondents have wrongly assumed that they are thedisciplinary authority of the petitioner whereas under Rule 26A of theDelhi Higher Judicial Service Rules, 1970 (hereinafter referred to as“Rules, 1970”), the High Court has been debarred from having any rightover the members of the service in matters relating to major penalties.The charge memo dated 23.02.2017 was issued without even informationto the disciplinary authority, i.e., the Governor.

5. Shri Narsimha, learned senior counsel appearing for therespondents submits that High Court having control over judicial officersunder Article 235 of the Constitution, it did not lack jurisdiction in placingthe petitioner under suspension and directing for a regular disciplinaryinquiry. Inquiry having conducted by the Committee, which after holdingfull-fledged inquiry, giving full opportunity to the petitioner has submitteda Report dated 09.03.2018. The Inquiry Report dated 09.03.2018 wasserved on the petitioner by letter dated 16.05.2018, where petitionerwas asked to submit his written representation or statement within onemonth, which has not yet been done. It is submitted that in view of thefact that the petitioner has filed this petition in this Court and matterbeing pending due to deference to this Hon’ble Court, no further steps A

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Ahave been taken in the inquiry. It is submitted that the Report dated05.11.2016 was a Preliminary Report submitted by the Committee givingopinion that the disciplinary inquiry be held, the said report being aPreliminary Inquiry Report, it was not necessary to serve such report tothe petitioner. The Inquiry Report conducted as per Section 11 of theAct, 2013 and as per Section 13, the copy of the report has been dulyBserved on the petitioner. Further, the Preliminary Inquiry Report dated05.11.2016 was not taken into consideration for framing charges againstthe petitioner and hence the High Court did not give a copy of the saidreport to the petitioner.

6. We have heard the learned counsel for the parties and haveCperused the records.

7. At very outset, we indicated to the learned counsel for thepetitioner that the disciplinary proceedings against the petitioner beingstill 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 petitionDcan very well be canvassed and pressed before in the disciplinaryproceedings. We indicated that any expression of opinion by this Courton issues, which are relevant and material in the disciplinary inquiry mayprejudice the parties.

8. Learned counsel for the petitioner specifically submitted thatEthis Court may consider those submissions, which go to the very root ofthe matter specially non-compliance of the provisions of Act, 2013. Wehave already extracted the reliefs claimed in the writ petition. Claims inthe writ petition are very wide, which include quashing the proceedingsof Internal Complaints Committee as well as Charge Sheet datedF23.02.2017 and the Report dated 09.03.2018. We are of the view thatthe petitioner having still opportunity in the disciplinary proceedings tochallenge the proceedings of the Internal Complaints Committee, thecharge sheet as well as the Inquiry Report dated 09.03.2018, we deemit appropriate not to enter into above issues leaving it open to the petitionerto raise all submissions and pleas before the appropriate authority. InGthis writ petition, we, however, proceed to examine only few limitedissues, which has been pressed by the petitioner. The only issues, whichwe proceed to consider are:-

(i) Whether the High Court is a disciplinary authority of thepetitioner, competent to initiate the disciplinary proceedingsH

against the petitioner and suspend him as per Delhi HigherJudicial Service Rules, 1970 and All India Services (Disciplineand Appeal) Rules, 1969?

(ii) Whether the decision of the Full Court on 13.07.2016 initiatingenquiry against the petitioner and placing him under suspensionwas beyond jurisdiction?

(iii) Whether the Preliminary Inquiry Report submitted by InternalComplaints Committee dated 05.11.2016 ought to have beensupplied to the petitioner and non-supply of such PreliminaryInquiry Report dated 05.11.2016 vitiated the entireproceedings?

Issue Nos. 1 and 2

9. Issue Nos.1 and 2 being connected are taken together. PartVI of the Constitution of India deals with “The States”. Chapter VIcontains heading “Subordinate Courts”. Articles 233 and 235 of theConstitution of India refers to two distinct powers. The first is power ofappointment, posting and promotion of District Judges and second ispower of control over Judicial Officers of the State. The word “control”occurring in Article 235 means not only the general superintendence ofthe working of the Courts but includes the disciplinary control of thejudicial 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 bedisciplinary control. A Constitution Bench of this Court in State of WestBengal and Another Vs. Nripendra Nath Bagchi, AIR 1966 SC447 had occasion to consider the nature of the control vested in theHigh Court in Article 235 of the Constitution over district judges. Inparagraph No.13 following was held:- “15. We do not accept this construction. The word “control” isnot defined in the Constitution at all. In Part XIV which dealswith Services under the Union and the States the words “disciplinarycontrol” or “disciplinary jurisdiction” have not at all been used. Itis not to be thought that disciplinary jurisdiction of services is notcontemplated. In the context the word “control” must, in ourjudgment, include disciplinary jurisdiction. Indeed, the word maybe 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 A

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A“control” are the Disciplinary Rules. Further, as we have alreadyshown, the history which lies behind the enactment of these Articlesindicate that “control” was vested in the High Court to effectuatea purpose, namely, the securing of the independence of thesubordinate judiciary and unless it included disciplinary control aswell the very object would be frustrated. This aid to constructionBis admissible because to find out the meaning of a law, recoursemay legitimately be had to the prior state of the law, the evil soughtto be removed and the process by which the law was evolved.The word “control”, as we have seen, was used for the first timein the Constitution and it is accompanied by the word “vest” whichCis a strong word. It shows that the High Court is made the solecustodian of the control over the judiciary. Control, therefore, isnot merely the power to arrange the day to day working of thecourt but contemplates disciplinary jurisdiction over the presidingJudge……………………………”

D10. The Constitution Bench further held that under Article 235 ofthe Constitution, High Court can hold enquiries, impose punishments otherthan dismissal or removal. In paragraph No. 18, following has beenheld:- “18. There is, therefore, nothing in Article 311 which compels theEconclusion that the High Court is ousted of the jurisdiction to holdthe 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 controlsubject only to the power of the Governor in the matter ofappointment (including dismissal and removal) and posting andpromotion of District Judges. Within the exercise of the controlFvested in the High Court, the High Court can hold enquiries, imposepunishments other than dismissal or removal, subject however tothe conditions of service, and a right of appeal if granted by theconditions of service, and to the giving of an opportunity of showingcause as required by clause (2) of Article 311 unless suchGopportunity is dispensed with by the Governor acting under theprovisos (b) and (c) to that clause. The High Court alone couldhave held the enquiry in this case. To hold otherwise will be toreverse the policy which has moved determinedly in this direction.”

11. To the same effect is another Three Judge Bench judgment ofHthis Court is Baradakanta Mishra Vs. High Court of Orissa and

Another, (1976) 3 SCC 327 where in paragraph No.20, followingwas laid down:-

“20. The scope of Article 235 has been examined by this Court inseveral decisions. The important decisions are State of WestBengal v. Nripendra Nath Bagchi, AIR 1966 SC 447; HighCourt of Calcutta v. Amal Kumar Roy, AIR 1962 SC 1704;High Court of Punjab and Haryana v. State of Haryana (Inthe matter of N.S. Rao), (1975) 1 SCC 843. The effect of thedecisions is this. The word “control” as used in Article 235 includesdisciplinary control over District Judges and judges inferior to thepost of District Judge. This control is vested in the High Court toeffectuate the purpose of securing independence of thesubordinate judiciary and unless it included disciplinary control aswell the very object would be frustrated. The word “control” isaccompanied by the word “vest” which shows that the High Courtis made the sole custodian of the control over the judiciary. Controlis not merely the power to arrange the day-to-day working of thecourt but contemplates disciplinary jurisdiction on the presidingjudge. The word “control” includes something in addition to themere superintendence of these courts. The control is over theconduct and discipline of judges. The inclusion of a right of appealagainst the orders of the High Court in the conditions of serviceindicates an order passed in disciplinary jurisdiction. The word“deal” in Article 235 also indicates that the control is overdisciplinary and not mere administrative jurisdiction. The controlwhich is vested in the High Court is complete control subject onlyto the power of the Governor in the manner of appointmentincluding initial posting and promotion of District Judges anddismissal, removal, reduction in rank of District Judges. Withinthe exercise of the control vested in the High Court, the HighCourt can hold enquiries, impose punishments other than dismissalor removal subject however to the conditions of service to a rightof appeal if granted by the conditions of service, and to the givingof an opportunity of showing cause as required by clause (2) ofArticle 311 unless such an opportunity is dispensed with by theGovernor acting under the provisos (b) and (c) to that clause.The High Court alone could make enquiries into disciplinaryconduct.”

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A12. Another Constitution Bench in Registrar (Admn.), HighCourt of Orissa, Cuttack Vs. Sisir Kanta Satapathy (Dead) byLrs. and Another, (1999) 7 SCC 725 after reviewing all earlierjudgments, laid down following in paragraph No.16:- “16. We are clearly of the view that while the High Court retainsBthe power of disciplinary control over the subordinate judiciary,including the power to initiate disciplinary proceedings, suspendthem pending enquiries and impose punishment on them but whenit comes to the question of dismissal, removal, reduction in rank ortermination of the services of the judicial officer, on any countwhatsoever, the High Court becomes only the recommendingCauthority and cannot itself pass such an order (vide Inder PrakashAnand case, (1976) 2 SCC 977 and Rajiah case, (1988) 3SCC 211).”

13. We may also refer to another judgment of this Court inRajendra Singh Verma (Dead) through LRs. and Others Vs.DLieutenant Governor (NCT of Delhi) and Others, (2011) 10 SCC1. This Court in the above case had occasion to consider control ofArticle 235 over the judicial officers of NCT of Delhi. This Court afterelaborating the control of the High Court with reference to judicial officersof NCT Delhi had laid down that High Court alone is the sole authorityEcompetent to initiate disciplinary proceedings against Subordinate JudicialOfficers or to impose various punishments. The contentions raised beforethe Court based on Article 239AA(4) of the Constitution that the Schemein NCT Delhi is different was rejected. Following was laid down inparagraph No.136:-

F“136. Reliance on Article 239-AA(4) is entirely out of place sofar as the High Court is concerned, dealing with the judicial officers.To give any other interpretation to Article 239-AA(4) will be todefeat the supreme object underlying Article 235 of the Constitution,specially intended for protection of the judicial officers andnecessarily independence of the subordinate judiciary. It isGabsolutely clear that the Governor cannot take the aid and adviceof his Council of Ministers in the case of judicial officers andaccept its advice and act according to it. There is no room for anyoutside body between the Governor and the High Court. Therefore,this Court does not find any substance in this contention also andHthe same is rejected.”

14. In the above case, it has been clearly and categorically laiddown that disciplinary authority with regard to judicial officers is theHigh Court and it is the High Court, which can initiate the disciplinaryproceedings 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 theGovernor, who is to issue the orders.

15. Learned counsel for the petitioner has placed reliance on aConstitution Bench judgment of this Court in Chief Justice of AndhraPradesh and Others Vs. L.V.A. Dixitulu and Others, (1979) 2SCC 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 paragraph40 of the judgment, few incidents of control vested in the High Courtwere enumerated. Paragraph 40 is as follows:

“40. The interpretation and scope of Article 235 has been thesubject of several decisions of this Court. The position crystallisedby these decisions is that the control over the subordinate judiciaryvested in the High Court under Article 235 is exclusive in nature,comprehensive in extent and effective in operation. It comprehendsa wide variety of matters. Among others, it includes:

(a) (i) Disciplinary jurisdiction and a complete control subjectonly to the power of the Governor in the matter of appointment,dismissal, removal, reduction in rank of District Judges, andinitial posting and promotion to the cadre of District Judges. Inthe exercise of this control, the High Court can hold inquiriesagainst a member of the subordinate judiciary, imposepunishment other than dismissal or removal, subject, however,to the conditions of service, and a right of appeal, if any, grantedthereby and to the giving of an opportunity of showing causeas required by Article 311(2).

(ii) In Article 235, the word ‘control’ is accompanied by theword “vest” which shows that the High Court alone is madethe sole custodian of the control over the judiciary. The controlvested in the High Court, being exclusive, and not dual, aninquiry into the conduct of a member of judiciary can be heldby the High Court alone and no other authority. (State of WestBengal v. Nripendra Nath Bagchi (supra); Shamsher Singh v.

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State of Punjab (1974) 2 SCC 831; Punjab and Haryana HighCourt v. State of Haryana (sub nom Narendra Singh Rao,(1975)1 SCC 831).

(iii) Suspension from service of a member of the judiciary, witha view to hold a disciplinary inquiry.

(b) Transfers, promotions and confirmation of such promotionsof persons holding posts in the judicial service, inferior to thatof District Judge. (State of Assam v. S.N. Sen, (1971) 2 SCC899, State of Assam v. Kuneswar Saikia, (1969) 3 SCC 505).

(c) Transfers of District Judges [State of Assam v. RangaMuhammad (supra); Chandra Mouleshwar v. Patna High Court(supra)].

(d) Recall of District Judges posted on ex-cadre posts or ondeputation on administrated posts. (State of Orissa v. SudhansuSekhar Misra, AIR 1968 SC 647).

(e) Award of Selection grade to the members of the judicialservice, including District Judges it being their further promotionafter their initial appointment to the cadre. (State of Assam v.Kuseswar Saikia (supra).

(f) Confirmation of District Judges, after their initial appointmentor promotion by the Governor to the cadre of District Judgesunder Article 233, on probation or officiating basis. [Punjab &Haryana High Court v. State of Haryana (supra)].

(g) Premature or compulsory retirement of Judges of the DistrictCourt and of Subordinate Courts (State of U.P. v. Batuk DeoPati Tripathi and Anr. (supra).”

16. In the above case also, this Court held that the disciplinaryjurisdiction vests in the High Court which can hold inquiries against amember of the subordinate judiciary, impose punishment other thandismissal or removal. The High Court can also suspend a member of thejudiciary. Insofar as dismissal or removal is concerned, the said ordersare required to be passed by the Governor on the recommendation ofthe High Court. The fact that the orders of dismissal or removal areissued by the approval of the Governor in no manner denude thedisciplinary control of the High Court.

17. Another judgment relied on by the learned counsel for thepetitioner is State of Tamil Nadu Rep. by Secretary to Govt.(Home)Vs. Promod Kumar IPS and Another, AIR 2018 SC 4060. Theabove was a case of the member of Indian Police Service. This Courthad occasion to consider the provisions of All India Services (Disciplineand Appeal) Rules, 1969 in the context of member of Indian Police Service.Learned counsel for the petitioner has placed reliance on paragraphs 18and 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 noreason to take a view different from the one taken by this Courtin B.V. Gopinath (AIR 2014 SC 88)(supra). We also see nosubstance in the submission made by the Senior Counsel for theState that the said judgment needs reconsideration. Assuming thatMr. Giri is right in his submission that the initiation of disciplinaryproceedings and issuance of charge memo are at the same stage,the mandatory requirement of Rule 8 which provides for the chargememo to be drawn by the disciplinary authority cannot be ignored.We reject the submission on behalf of the Appellant that Gopinath’scase can be distinguished on facts. We are not in agreement withthe contention of the Appellant that the business Rules and standingorders of the State of Tamil Nadu are quite different from theoffice orders and circulars issued by Union of India which formedthe basis of the judgment in Gopinath’s case. A close reading ofthe said judgment would disclose that reliance on the office notewas only in addition to the interpretation of the Rule.

19. It is also settled law that if the Rule requires something to bedone in a particular manner it should be done either in the samemanner or not at all- Taylor v. Taylor (1875) 1 Ch. D. 426, 431. Inview of the mandatory requirement of Rule 8(4) and the chargememo being drawn up or cause to be drawn up by the disciplinaryauthority is not complied with, we are of the considered opinionthat there is no reason to interfere with the judgment of the HighCourt on this issue. The only addition we would like to make is togive liberty to the disciplinary authority to issue a charge memoafresh after taking approval from the disciplinary authority.”

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18. In the above case, charge memo was not drawn by thedisciplinary authority, hence, this Court approved the decision of the HighCourt quashing charge-sheet. The above case is not applicable in thepresent case. The petitioner in the present case is a member of JudicialService for which disciplinary authority is the High Court.

19. The submission, which has been pressed by the petitioner isthat in view of Act, 2013 there being an Inquiry Report by InternalComplaints Committee as envisaged by Sections 11 and 13, the HighCourt could not have taken a decision to initiate the inquiry or to suspendthe petitioner. The Act, 2013 was to provide protection against sexualharassment of women at workplace and for the prevention and redressalof complaints of sexual harassment and for matters connected therewithor incidental thereto. Chapter II of Act, 2013 deals with constitution ofInternal Complaints Committee. Chapter IV deals with complaint. InChapter IV, one of the sections is Section 11, which deals with inquiryinto complaint. Section 11 of the Act is as follows:- “11. Inquiry into complaint.— (1) Subject to the provisions ofsection 10, the Internal Committee or the Local Committee, asthe case may be, shall, where the respondent is an employee,proceed to make inquiry into the complaint in accordance withthe provisions of the service rules applicable to the respondentand where no such rules exist, in such manner as may be prescribedor in case of a domestic worker, the Local Committee shall, ifprima facie case exist, forward the complaint to the police, withina period of seven days for registering the case under section 509of the Indian Penal Code (45 of 1860), and any other relevantprovisions of the said Code where applicable:

Provided that where the aggrieved woman informs theInternal 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 therespondent, the Internal Committee or the Local Committee shallproceed to make an inquiry into the complaint or, as the case maybe, 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 availableto both the parties enabling them to make representation againstthe findings before the Committee.

XXXXXXXXXXXXXXXX”

20. Chapter V deals with inquiry into complaint and Section 13deals with inquiry report, which is to the following effect:- “13. Inquiry Report.—(1) On the completion of an inquiryunder this Act, the Internal Committee or the Local Committee,as the case may be, shall provide a report of its findings to theemployer, or as the case may be, the District Officer within aperiod of ten days from the date of completion of the inquiry andsuch report be made available to the concerned parties.

(2) Where the Internal Committee or the Local Committee, asthe case may be, arrives at the conclusion that the allegationagainst the respondent has not been proved, it shall recommendto the employer and the District Officer that no action is requiredto be taken in the matter.

(3) Where the Internal Committee or the Local Committee, asthe case may be, arrives at the conclusion that the allegationagainst the respondent has been proved, it shall recommend tothe employer or the District Officer, as the case may be—

(i) to take action for sexual harassment as a misconduct inaccordance with the provisions of the service rulesapplicable to the respondent or where no such service ruleshave been made, in such manner as may be prescribed;

(ii) to deduct, notwithstanding anything in the service rulesapplicable to the respondent, from the salary or wages ofthe respondent such sum as it may consider appropriate tobe paid to the aggrieved woman or to her legal heirs, as itmay determine, in accordance with the provisions of section15:

Provided that in case the employer is unable to make suchdeduction from the salary of the respondent due to his being absentfrom duty or cessation of employment it may direct to therespondent to pay such sum to the aggrieved woman:

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AProvided further that in case the respondent fails to pay the sumreferred to in clause (ii), the Internal Committee or as the casemay be, the Local Committee may forward the order for recoveryof the sum as an arrear of land revenue to the concerned DistrictOfficer.

B(4) The employer or the District Officer shall act upon therecommendation within sixty days of its receipt by him.”

21. The Act, 2013 is a parliamentary legislation, the preamble ofwhich outlines the necessity of legislation, which is to the following effect:- “An Act to provide protection against sexual harassment of womenCat workplace and for the prevention and redressal of complaintsof sexual harassment and for matters connected therewith orincidental thereto.”

22. The provisions of the Act, complaint mechanism andmechanism for constitution of the Internal Complaints Committee,Dmechanism to inquire the complaint are all for protection of dignity andwelfare of women at workplace. The provisions of Sections 11 and 13in no manner affect the control of the High Court under Article 235,which it has with respect to judicial officers as noted above. The powerto suspend the judicial officer vests in the High Court. The Full Court ofEthe High court is in no manner precluded from initiating disciplinary inquiryagainst the petitioner and placing the petitioner under suspension on beingsatisfied that sufficient material existed. The High Court in its meetingdated 19.07.2016 has resolved to send the complaint of the employee tothe Internal Complaints Committee and the Internal ComplaintsCommittee having opined that inquiry need to be held, further steps wereFtaken in accordance with Act, 2013. We, thus, are of the view that thereis no error in the decision of the Full Court dated 13.07.2016 to suspendthe petitioner and initiate the inquiry proceedings against the petitioner.

Issue No.3

23. The submission on which much emphasis has been made byGthe petitioner is that the copy of the Report dated 05.11.2016 referred toas a Preliminary Inquiry Report by the High Court has not been suppliedto the petitioner by which he has been denied right to appeal. With regardto Preliminary Inquiry Report dated 05.11.2016, in paragraph Nos. 48and 49, the High Court has made following assertions:-H

“48-49. The contents of para 48-49 are wrong and denied. ThePetitioner is under the erroneous belief that the report dated05.11.2016 which is only a Preliminary Inquiry Report should havebeen made available to him. That the inquiry has been conductedstrictly in compliance with the procedure laid down in All IndiaServices (Discipline & Appeal) Rules, 1965 and OfficeMemorandum dated 16.07.2015 issued by Department ofPersonnel & Training, Ministry of Personnel, Public Grievancesand Pensions, Govt. of India. As per the said Office Memorandum,the ICC firstly conducted preliminary investigation/inquiry and thensubmitted its Preliminary Inquiry Report dated 05.11.2016 beforethe Disciplinary Authority. There is no provision to provide thecopy of Preliminary Inquiry Report to the Delinquent. It is alsopertinent to mention here that the Petitioner had been providedwith a copy of the Inquiry Report dated 09.03.2018 submitted bythe Inquiring Authority after conducting regular inquiry as per theprocedure laid down in the All India Services (Discipline & Appeal)Rules, 1969, with a direction to submit his written representationor submissions, if he so desires, against the findings of the InquiringAuthority. However, instead of submitting his written representationor submissions, the Petitioner chose to file the instant writ petitionbefore this Hon’ble Court. Thus, it is made clear here that therewas no discrepancy in the Preliminary Inquiry/investigation bythe ICC. The Report dated 05.11.2016 was a Preliminary InquiryReport the purpose of which is only to satisfy the DisciplinaryAuthority as to whether any prima facie case is made out againstthe Petitioner. The Full Court, after considering the PreliminaryInquiry Report dated 05.11.2016, resolved vide its decision dated16.11.2016 to initiate disciplinary proceedings for major penaltyunder 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 Reportdated 05.11.2016 did not contain any findings on allegations made againstthe petitioner, Preliminary Inquiry Report only opined that inquiry shouldbe held. The Inquiry Report, which has been referred to in Section 13 isan Inquiry Report, which has been submitted by Internal ComplaintsCommittee after completion of the inquiry. In the present case, theInquiry Report by Internal Complaints Committee is dated 09.03.2018, AB

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Awhich has been admittedly supplied to the petitioner, the right of appealgiven 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 theBrecommendations made under sub-section (2) of section 13 orunder clause (i) or clause (ii) of sub-section (3) of section 13 orsubsection (1) or sub-section (2) of section 14 or section 17 ornon-implementation of such recommendations may prefer anappeal to the court or tribunal in accordance with the provisionsof the service rules applicable to the said person or where noCsuch service rules exist then, without prejudice to provisionscontained in any other law for the time being in force, the personaggrieved may prefer an appeal in such manner as may heprescribed.

(2) The appeal under sub-section (1) shall be preferred within aDperiod of ninety days of the recommendations.”

25. Thus, the right of appeal is given to an aggrieved person onlywhen report is submitted under Section 13 to the employer. Section13(3) contemplates the report of Internal Complaints Committee whenit “arrives at the conclusion that the allegation against the respondentEhas been proved”. It is not the case of any of the parties that the reportof the Committee dated 05.11.2016 is the report where allegation againstthe petitioner has been proved. Even under Section 11(1) in the secondproviso, the only contemplation is to make available a copy of the findings.Thus, when the report in which there are no findings, parties are notFentitled to have the copy. High Court in its counter affidavit has pleadedthat the Report dated 05.11.2016 was not a report containing any findingsagainst the petitioner rather only opinion was expressed that disciplinaryinquiry be initiated against the petitioner. We, thus, are of the view thatno prejudice can be held to be caused to the petitioner by non-supply ofthe Preliminary Inquiry Report dated 05.11.2016. The copy of memo ofGcharge dated 23.02.2017 has been brought on the record, which alsoclearly indicates that the charge memo does not refer to PreliminaryInquiry Report dated 05.11.2016. Thus, no prejudice can be said to havebeen caused to the petitioner by non-supply of Report dated 05.11.2016.We, thus, do not accept the submission of learned counsel for the petitioner H

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 regardto charge memo dated 23.02.2017, inquiry conducted by InternalComplaints Committee culminating into Report dated 09.03.2018, it isopen for the petitioner to raise all pleas of facts and law before theappropriate authority. This Court has only considered limited issues aspressed by the petitioner as indicated above. Apart from above, allquestions and issues are left open to both the parties. Subject toobservations and liberty as above, the Writ Petition is dismissed.

Divya Pandey

Writ Petition dismissed.

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