a

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 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.

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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

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

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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 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

(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.

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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

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-

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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 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

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

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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 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 complicated

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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 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

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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 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.