CASE STUDY

“Dy.Inspector Gen.Of Police & Anr vs

S.Samuthiram “
-AIR (2013) SUPREME COURT 14-

PART –1

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 FACTS OF THE CASE

Accordingly, the Tamil Nadu Prohibition of Eve-teasing Ordinance, 1998

(Tamil Nadu Ordinance No. 4 of 1998) was promulgated by the Governor and the
same was published in the Tamil Nadu Government Gazette Extraordinary, dated
the 30th July, 1998. We are in this case concerned with a situation where a member
of the law enforcement agency, a police personnel, himself was caught in the act of
eve-teasing of a married woman leading to criminal and disciplinary proceeding,
ending in his dismissal from service, the legality of which is the subject matter of this
appeal.

The respondent herein, while he was on duty at the Armed Reserve,

Palayamkottai was deputed for Courtallam season Bandobust duty on 9.7.1999 and
he reported for duty on that date at 8.30 PM at the Courtallam Season Police out
post. At about 11.00 PM he visited the Tenkasi bus stand in a drunken state and
misbehaved and eve-teased a married lady, who was waiting along with her
husband, to board a bus. The respondent approached that lady with a dubious
intention and threatened both husband and wife stating that he would book a case
against the husband unless the lady accompanied him. Further, he had disclosed his
identity as a police man.

Both husband and wife got panic and complained to a police man, namely,
Head Constable Adiyodi (No.1368) who was standing along with Head Constable
Peter (No.1079) of Tenkasi Police Station on the opposite side of the bus-stand.
They were on night duty at the bus stand. They rushed to the spot and took the
respondent into custody and brought him to Tenkasi Police Station along with the
husband and wife. Following that, a complaint No.625/1999 was registered on
10.7.1999 at that Police Station against the respondent under Section 509 of the
Indian Penal Code and under Section 4 of the Eve-teasing Act. On 10.7.1999, at
about 1.25 hrs., the respondent was taken to the Government Hospital Tenkasi for
medical examination. There he was examined by Dr. N. Rajendran, who issued a
Certificate of Drunkenness.The Superintendent of Police, Tiruneveli after carefully
perusing the enquiry report dismissed the respondent from service on 4.1.2000.

The respondent, aggrieved by the dismissal order, filed O.A. No.1144 of 2000
before the Tamil Nadu Administrative Tribunal, Chennai. While the O.A. was pending

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before the Tribunal, the Judicial Magistrate, Tenkasi rendered the judgment in S.T.C
No.613 of 2000 on 20.11.2000 acquitting the respondent of all the charges. The
judgment of the Criminal Court was brought to the notice of the Tribunal and it was
submitted that, on the same set of facts, the delinquent be not proceeded within the
departmental proceeding. The judgment of this Court in Capt. M. Paul Anthony v.
Bharat Gold Mines Ltd. and Another (1999) 3 SCC 679 was also placed before the
Tribunal in support of that contention.

The Tribunal noticed that both, husband and wife, deposed before the Enquiry
Officer that the respondent had committed the offence, which was supported by the
other prosecution witnesses, including the two policemen who took the respondent in
custody from the place of incident. Consequently, the Tribunal took the view that no
reliance could be placed on the judgment of the criminal court. The O.A. was
accordingly dismissed by the Tribunal vide order dated 23.3.2004. The order was
challenged by the respondent in a Writ Petition No.13726 of 2004 before the High
Court of Madras. The High Court took the view that if a criminal case and
departmental proceedings against an official are based on the same set of facts and
evidence and the criminal case ended in an honourable acquittal and not on
technical grounds, imposing punishment of removal of the delinquent official from
service, based on the findings of domestic enquiry would not be legally sustainable.
The High Court also took the view that the version of the doctor who was examined
as PW8 and Ext. P-4 certificate issued by him, could not be considered as sufficient
material to hold the respondent guilty and that he had consumed alcohol, but was
found normal and had no adverse influence of alcohol. The High Court, therefore,
allowed the writ petition and set aside the impugned order dismissing him from
service. It was further ordered that the respondent be reinstated with continuity of
service forthwith, with back wages from the date of acquittal in the criminal case, till
payment.

The State, aggrieved by the said judgment has filed this appeal by special
leave through the Deputy Inspector General of Police

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 ISSUES

1.Whether the special leave petition before Supreme court is sustainable ?

2. whether domestic enquiry and criminal enquiry can be proceeded simultaneously

?

3.Whether the findings of court against the accused is proved beyond any doubt or
not ?

4.Whether the accused can be re instated as per tamil nadu rules ?.

5.Whether the accused can be framed under section 302 AND 34 of IPC?

PROVISION OF LAW

Article 21 in The Constitution Of India 1949

Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law

Article 136 in The Constitution Of India 1949

Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in
the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or

order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces

Article 226 in The Constitution Of India 1949

Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercise jurisdiction, to issue to any

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person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of action,
wholly or in part, arises for the exercise of such power, notwithstanding that the seat
of such Government or authority or the residence of such person is not within those
territories

(3) Where any party against whom an interim order, whether by way of injunction or
stay or in any other manner, is made on, or in any proceedings relating to, a petition
under clause ( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of
the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the
party in whose favour such order has been made or the counsel of such party, the
High Court shall dispose of the application within a period of two weeks from the
date on which it is received or from the date on which the copy of such application is
so furnished, whichever is later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards on which the High Court is
open; and if the application is not so disposed of, the interim order shall, on the
expiry of that period, or, as the case may be, the expiry of the aid next day, stand
vacated

(4) The power conferred on a High Court by this article shall not be in derogation of
the power conferred on the Supreme court by clause ( 2 ) of Article 32

Section 294 in The Indian Penal Code

Obscene acts and songs.—Whoever, to the annoyance of others—

(a) does any obscene act in any public place, or

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(b) sings, recites or utters any obscene song, ballad or words, in or near any public
place, shall be punished with imprisonment of either description for a term which
may extend to three months, or with fine, or with both.

Section 509 in The Indian Penal Code

Word, gesture or act intended to insult the modesty of a woman.—Whoever,

intending to insult the modesty of any woman, utters any word, makes any sound or
gesture, or exhibits any object, intending that such word or sound shall be heard, or
that such gesture or object shall be seen, by such woman, or intrudes upon the
privacy of such woman, shall be punished with simple imprisonment for a term which
may extend to one year, or with fine, or with both.

ARGUMENT BY APPELLANT

Shri C. Paramasivam, learned counsel appearing for the appellant, submitted

that the High Court was not justified in interfering with disciplinary proceedings and
setting aside the order of dismissal of the respondent. Learned counsel submitted
that the High Court overlooked the fact that the standard of proof in a domestic
enquiry and criminal enquiry is different. The mere acquittal by the criminal Court
does not entitle the delinquent for exonerating in the disciplinary proceedings.
Learned counsel also submitted that the case in hand is not where punishment of
dismissal was imposed on the basis of conviction in a criminal trial and only, in such
situation, acquittal by a Court in a criminal trial would have some relevance. Further,
it was also pointed out that, in the instant case, the respondent was not honourably
acquitted by the criminal Court, but was acquitted since complainant turned hostile.

ARGUMENT BY RESPONDENT

Shri V. N. Subramaniam, learned counsel appearing for the respondent,

supported the findings recorded by the High Court. Learned counsel submitted that
the judgment of the criminal court acquitting the respondent has to be construed as
an honourable acquittal and that the respondent cannot be proceeded with on the
same set of facts on which he was acquitted by a criminal court. Learned counsel
also placed reliance on the judgment of this Court in Capt. M. Paul case

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 DECISION OF COURT [JUDGEMENT]

The Appeal is accordingly allowed with the above directions and the judgment
of the High Court is set aside. However, there will be no order as to costs.

REASON FOR THE DECISION

The burden is on the prosecution to prove that the accused had uttered the
words or made the sound or gesture and that such word, sound or gesture was
intended by the accused to be heard or seen by some woman. Normally, it is difficult
to establish this and, seldom, woman files complaints and often the wrong doers are
left unpunished even if complaint is filed since there is no effective mechanism to
monitor and follow up such acts. The necessity of a proper legislation to curb eve-
teasing is of extreme importance, even the Tamil Nadu Legislation has no teeth.

It is for the prosecution to prove that the accused committed any obscene act
or the accused sang, recited or uttered any obscene song; ballad or words and this
was done in or near a public place, it was of obscene nature and that it had caused
annoyance to others. Normally, it is very difficult to establish those facts and,
seldom, complaints are being filed and criminal cases will take years and years and
often people get away with no punishment and filing complaint and to undergo a
criminal trial itself is an agony for the complainant, over and above, the extreme
physical or mental agony already suffered.

in the facts and circumstances of this case, wish to add some aspects which
are also of considerable public importance. We notice that there is no uniform law in
this country to curb eve-teasing effectively in or within the precinct of educational
institutions, places of worship, bus stands, metro-stations, railway stations, cinema
theatres, parks, beaches, places of festival, public service vehicles or any other
similar place. Eve-teasing generally occurs in public places which, with a little effort,
can be effectively curbed. Consequences of not curbing such a menace, needless to
say, at times disastrous. There are many instances where girls of young age are
being harassed, which sometimes may lead to serious psychological problems and
even committing suicide. Every citizen in this country has right to live with dignity and
honour which is a fundamental right guaranteed under Article 21 of the Constitution
of India. Sexual harassment like eve- teasing of women amounts to violation of rights

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guaranteed under Articles 14, 15 as well. We notice in the absence of effective
legislation to contain eve-teasing, normally, complaints are registered under Section
294 or Section 509 IPC.

As it have already indicated, in the absence of any provision in the service

rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no
right is conferred on the employee to claim any benefit including reinstatement.
Reason is that the standard of proof required for holding a person guilty by a criminal
court and the enquiry conducted by way of disciplinary proceeding is entirely
different. In a criminal case, the onus of establishing the guilt of the accused is on
the prosecution and if it fails to establish the guilt beyond reasonable doubt, the
accused is assumed to be innocent. It is settled law that the strict burden of proof
required to establish guilt in a criminal court is not required in a disciplinary
proceedings and preponderance of probabilities is sufficient.

There may be cases where a person is acquitted for technical reasons or the
prosecution giving up other witnesses since few of the other witnesses turned hostile
etc. In the case on hand the prosecution did not take steps to examine many of the
crucial witnesses on the ground that the complainant and his wife turned hostile. The
court, therefore, acquitted the accused giving the benefit of doubt. We are not
prepared to say in the instant case, the respondent was honourably acquitted by the
criminal court and even if it is so, he is not entitled to claim reinstatement since the
Tamil Nadu Service Rules do not provide so.

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PART 2

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a

CRITICAL COMMENT

This case was a case the main predominant points under which the whole
case is revolving is over the Arts. 21, 15, 14 and 51-A(e) in which Eve-teasing at
Malady.and the court held that it is against constitutional mandate and also under
Art. 21 it violated the right to life because dignity of women is not respected and
Arts. 15 and 14 are violated because eve-teasing is a sex-based discrimination
against womanhood and since in Absence of effective law ,Social evil requiring
urgent attention the Judicial intervention became essential due to legislative
inadequacy .under Ss. 294 and 509, IPC reviewed but provisions not found effective
enough to tackle problem .Similarly, Act framed by T.N. State on eve-teasing also
found lacking teeth. Sexual Harassment Bill presently pending before Parliament, too
found to be addressing problem only partially.Taking note of traumatic effect of eve-
teasing on victims, directions issued, inter alia, for: (1) Installation of CCTV cameras
at strategic points, (2) Setting up of Women Helpline, (3) Surveillance at public
places by female police personnel in plain clothes, (4) Pinning responsibility on pliers
of public transport to take vehicle to police station in case eve-teasing takes place
inside their vehicle and also Categories of eveteasing also outlined,

Executive and legislative inaction and gaps became a cause for this type of
social evils . Directions issued by the court during this case over Social problem
warranting urgent remedial action without waiting for legislature to step in –and
Cognizance taken of problem in a collateral matter .While considering validity of
departmental enquiry against a police employee alleged to have misbehaved with a
woman at a public place, general problem of eve-teasing also considered and
remedial directions issued by Supreme Court

The whole Effect of this case was if any over moral justice and judicial
intervention to legislative in adequacy. of acquittal in criminal proceedings the court
Held, there is no impact if acquittal is on account of flawed prosecution but
departmental enquiry is based on adequate evidence. Respondent who was a police
official, charged with misbehaving with a woman and Charge proved in departmental
enquiry due to cooperation of witnesses but prosecution failing in criminal
proceedings because two key witnesses turned hostile while three others not

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considered worthwhile to be examined on account of non-cooperation of key
witnesses . the court again Held, acquittal in such a situation was not honourable
and It did not affect outcome of departmental enquiry,

The court further held that Entitlement to Acquittal in criminal case and Held,
the same does not entail automatic reinstatement, since different standards of proof
are applicable in criminal and departmental proceedings .Proof beyond reasonable
doubt in criminal proceedings and preponderance of probabilities in departmental
proceedings, are the respective standards. Acquittal may be outcome of higher level
proof which prosecution could not meet yet an employee may be found guilty in
departmental proceedings on account of relatively lower standard of proof and It
would also depend on whether it is a technical acquittal or honourable acquittal .the
court was on a point that Reinstatement cannot therefore be claimed unless there is
specific provision to this effect in relevant service rules in cases of honourable
acquittal . However this was also not the case in present case, since it was a mere
technical acquittal

The disciplinary proceedings and proceedings in a criminal case can proceed

simultaneously in the absence of any legal bar to search simultaneity. It is also
evident that while seriousness of the charge levelled against the employees is a
consideration, the same is not by itself sufficient unless the case also involves
complicated questions of law and fact. Even when the charge is found to be serious
and complicated questions of fact and law that arise from consideration, the court will
have to keep in mind the fact that departmental proceedings cannot be suspended
indefinitely delayed unduly.

Court to draw balance between the need for a fair trial to the accused on the
one hand and the competing demand for an expeditious conclusion of the ongoing
disciplinary proceedings on the other and Held that :

Suffice it to say that while there is no legal bar to the holding of the
disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary
proceedings may be an advisable course in cases where the criminal charge against
the employee is grave and continuance of the disciplinary proceedings is likely to
plagiarize their defence before the criminal court. Gravity of the charge is, however,
not by itself enough to determine the question unless the charge involves

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complicated question of law and fact. The court examining the question must also
keep in mind that criminal trials get prolonged indefinitely especially where the
number of accused arraigned for trial is large as is the case at hand and so are the
number of witnesses cited by the prosecution. The court, therefore, has to draw
balance between the need for a fair trial to the accused on the one hand and the
competing demand for an expeditious conclusion of the ongoing disciplinary
proceedings on the other. An early conclusion of the disciplinary proceedings as
itself been seen by this court to be in the interest of the employees.

Direction issued to the court dealing with the criminal charges against the
respondents to conclude the proceedings as expeditiously as possible but in any
case within a period of one year from the date of this order.In the instant case though
the charges levelled against the respondents were for major offences but in absence
of any complicated question of law or fact, unconditional and complete stay of
disciplinary proceedings pending conclusion of trial was considered to be unsatisfied

In the circumstances and taking into consideration all respects mentioned

above as also keeping in view the fact that all the three courts below have exercised
their discretion in favour of staying the ongoing disciplinary proceedings, we do not
consider it fit to vacate the said order straightaway. Interest of Justice, in our opinion,
be sufficiently served if we direct him the court dealing with the criminal charges
against the respondents to conclude the proceedings as expeditiously as possible
but in any case within a period of one year from the date of this order.

Mere acquittal of an employee by a Criminal Court has no impact on the

disciplinary proceedings initiated by the DepartmentMere acquittal of an employee
by a Criminal Court has no impact on the disciplinary proceedings initiated by the
Department. The respondent was not honourably acquitted by the criminal code, but
only due to the fact that PW-1 and PW-2 turned hostile and other prosecution
witnesses were not examined.

No right to reinstatement unless specifically provided for in the relevant

service rulesIn the absence of any provision in the service rules for reinstatement, if
an employee is even honourably acquitted by criminal court, no right is conferred on
the employee to claim any benefits including reinstatement. The reason is that the
standard of proof required for holding a person guilty by a criminal court and the

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enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal
case, the onus of establishing the guilt of the accused is on the prosecution and if it
fails to establish ticket non-reasonable doubt, the accused is assumed to be
innocent. Strict burden of proof to establish guilt in a criminal court is not required in
a disciplinary proceedings and preponderance of probabilities is sufficient. There
may be cases where a person is acquitted for technical reasons or the prosecution
giving up other witnesses since few of the other witnesses turned hostile, etc.

There is a consensus of judicial opinion amongst the High Courts and the
various pronouncements of this court, on the basic principle that proceedings in a
criminal case in the departmental proceedings can proceed simultaneously with a
little exception. The basis for this proposition is that proceedings in a criminal case in
the departmental proceedings operate in distinct and different jurisdictional areas.
Whereas in the departmental proceedings, where a charge relating to misconduct is
being investigated, the factors operating in the mind of the disciplinary authority may
be many such as enforcement of discipline or to investigate the level of integrity of
the delinquent or the other staff, the standard of proof required in those proceedings
is also different than that required in a criminal case while in the departmental
proceedings the standard of proof is one of preponderance of the probabilities, in a
criminal case, the charge has to be proved by the prosecution beyond reasonable
doubt.

So far as criminal cases are concerned, it is well-known that they drag on

endlessly where high officials or persons holding high public offices are involved.
They get bogged down on one or the other ground. They hardly ever reach a prompt
conclusion. That is the reality in spite of repeated advice and admonitions from this
court or the High Court. If a criminal case is unduly delayed that may itself be a good
ground for going ahead with the disciplinary enquiry even where the disciplinary
proceedings are held over at an earlier stage. The interests of administration and
good government demand that these proceedings are concluded expeditiously. It
must be remembered that interests of administration demand that undesirable
elements are thrown out in any charge of misdemeanour is enquired into prompting.
The disciplinary proceedings are meant not really to punish the guilty but to keep the
administrative machinery unsullied by getting rid of bad elements. The interest of the
delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If

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he is not guilty of the charges, his honour should be vindicated at the earliest
possible moment and if he is guilty, he should be dealt with promptly according to
law. It is not also in the interest of administration that persons accused of serious
misdemeanour should be continued in office indefinitely, i.e., for long periods
awaiting the result of criminal proceedings. It is not in the interest of administration. It
only serves the interest of the guilty and dishonest.

While it is not possible to enumerate the various factors, for and against the
stay of disciplinary proceedings, we found it necessary to emphasize some of the
important considerations in view of the fact that very often the disciplinary
proceedings are being stayed for long periods pending criminal proceedings. Stay of
disciplinary proceedings cannot be, and should not be, a matter of course. All the
relevant factors, for and against, should be weighed and the decision taken keeping
in view the various principles laid down in the decisions referred to above.

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