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2016 DIGILAW 573 (RAJ)

Naimish Kumar Singh v. Union of India

2016-04-25

VEERENDR SINGH SIRADHANA

body2016
ORDER : Veerendr Singh Siradhana, J. The Complaints Committee on an enquiry into the allegations of sexual harassment found the petitioner guilty of the charge. As a consequence, the petitioner has been inflicted with the penalty of reduction to the lower post/grade of Sub-Inspector for a period of three years, which shall be a bar to his promotion during such period to the post/grade of Asstt. Commandant, with further directions that after the expiry of this period he will not regain his original seniority and that the period of reduction will have the effect of postponing future increments of his pay; of which the petitioner is aggrieved of. Hence, he has instituted the present writ application with a prayer to quash and set aside the impugned order dated 18th June, 2012 (Annexure-1). 2. Briefly, the essential skeletal material facts necessary for appreciation of the controversy raised are that the petitioner was proceeded with by the 'Complaints Committee' on the allegations of charge for sexual harassment as complained by Lady Constable-Baljeet Kaur, CISF Unit, ASG, Ahmedabad. The 'Complaints Committee' on an enquiry, recorded its findings on 29th June, 2010, and concluded that the incident of May, 2007, could not be conclusively established as the date of incident was not provided by the complainant. With reference to the incident of October, 2007, the Committee returned a finding of guilt on the allegations made by the Lady Constable-Baljeet Kaur against the petitioner-Naimish Kumar the then Sub-Inspector(Executive) now Asstt. Commandant) for he touched her in-appropriately on her cheek, which was derogatory to the dignity of a woman. On a consultation, the Union Public Service Commission (for short, 'UPSC') advised for the penalty vide communication dated 25th April, 2012. Accordingly, the petitioner has been inflicted with the penalty vide impugned order dated 18th June, 2012 (Annexure-1), collectively. 3. Learned senior counsel Mr. R.N. Mathur, for the petitioner, reiterating the pleaded facts and grounds of the writ application has assailed the impugned order inflicting penalty on three grounds. Firstly, the complainant and the witnesses were biased against the petitioner for on the basis of the report submitted by the petitioner and evidence tendered against them in an enquiry they were suitably punished by the Disciplinary Authority and thereafter they were transferred to different places. Secondly, the charge-sheet is vague and; Thirdly, the petitioner was denied opportunity to produce the witnesses as he wanted to produce Mr. Secondly, the charge-sheet is vague and; Thirdly, the petitioner was denied opportunity to produce the witnesses as he wanted to produce Mr. Sanjit Das in support of his defence. 4. On facts, the learned counsel would submit that there is no eye witness of the incident. Moreover the Disciplinary Authority acted contrary to the evidence on record. 5. According to the learned counsel, the 'Complaints Committee' while recording its findings on 29th June, 2010, concluded that the occurrence of May, 2007, was not conclusively established as the date of incident could not be furnished by the complainant. Therefore, the same reasoning holds good for the incident of October, 2007, and thus, the findings arrived at by the Complaints Committee are self-contradictory. 6. Learned counsel for the petitioner at the outset gave up the argument with reference to issuance of charge-sheet by the Disciplinary Authority in view of the amendment of Rule 14 of the Central Civil Services Classification, Control & Appeal) Rules, 1965 (for short, CCS (CCA) Rules, 1965'), which contemplates that the 'Complaints Committee' shall be deemed to be the enquiry authority appointed by the Disciplinary Authority for the purpose of Rules of 1965 in view of the Notification dated 1st July, 2004 amending Rule 14 (2) of the Rules of 1965. 7. Learned counsel emphatically contended that vide order dated 30th September, 1999 (Annexure-2), the petitioner was appointed to the post of Assistant Commandant/Exe. in CISF through Limited Departmental Competitive Examination (for short, 'LDCE') of CPFs-2008 and was directed to report to National Industrial Security Academy (NISA), Hyderabad, on 24th October, 2009, for appointment to the post aforesaid. The basic training for Assistant Commandant/Exe. [AC/Exe. (LDCE)] commenced w.e.f. 26th October, 2009, for a period of 25 weeks. 8. Referring to the Terms and Conditions of the offer of appointment dated 30th September, 1999 under Clause 6 (a) and (c), the learned counsel urged that consequent upon appointment through LDCE, the seniority was fixed as per Government Instructions issued from time to time. The petitioner was offered a post of Assistant Commandant on temporary basis and was on probation for a period of two years from the date of appointment in the first instance. The petitioner was offered a post of Assistant Commandant on temporary basis and was on probation for a period of two years from the date of appointment in the first instance. The appointing authority also reserved the right to revert back the services of the petitioner to the previous rank, in the event, the petitioner was being found not fit or unsuitable to undergo the course of training. 9. The petitioner tendered Technical Resignation in accordance with Chapter 59 of Complete Manual on Establishment Administration and Rule-26 (9) of CCS Pension Rules, 1972; which was a formality for the purpose of pensionary benefits. Thus, the appointment of the petitioner to the post of Assistant Commandant/Exe. was a fresh appointment, and therefore, he could not have been reverted back to the post of SI/Exe. for such a penalty would amount to removal from service. Further, the fact that the UPSC was consulted and the penalty inflicted on its advice substantiates the fact that the petitioner was a direct recruited to the post of Assistant Commandant/Exe. 10. It is pleaded that the complaint was made with a revengeful attitude against the petitioner as the fact that the petitioner appeared as one of the witnesses against the complainant and the incident was admitted in the counter affidavit on behalf of the respondent-Union of India. 11. Learned counsel would further submit that the post of Assistant Commandant/Exe. is a separate post. In support of his submissions, reliance has been placed on the opinion of the Hon'ble Supreme Court in the case of Nyadar Singh v. Union of Inida (UOI) and Ors., 1988 (4) SCC 170 and South Bengal State Transport Corporation v. Ashok Kumar Ghosh and Ors., 2010 (11) SCC 71 . 12. In response to the notice of the writ application, the respondents have filed their counter affidavit while supporting the impugned order dated 18th June, 2012, pleading that the 'Complaints Committee' conducted an enquiry on the allegations made by the Lady Constable No.064471510-Baljeet Kaur against the petitioner for she was touched inappropriately on her cheek which was derogatory to the dignity of a woman. The charge was found proved by the 'Complaints Committee' on the basis of facts, circumstances and materials collected during the course of enquiry, as would be evident from the findings arrived at vide enquiry report dated 29th June, 2010, submitted by the 'Complaints Committee' after a detailed enquiry. The charge was found proved by the 'Complaints Committee' on the basis of facts, circumstances and materials collected during the course of enquiry, as would be evident from the findings arrived at vide enquiry report dated 29th June, 2010, submitted by the 'Complaints Committee' after a detailed enquiry. 13. Mr. B.S. Chhaba, appearing for respondent-Union of India, while supporting the findings arrived at by the 'Complaints Committee' and the penalty imposed vide impugned order dated 18th June, 2012, asserted that the incident occurred on the night of 16th October, 2007, for which a specific complaint was made by the Lady Constable-Baljeet Kaur, the petitioner submitted his representation on 28th April, 2011. As a consequence of the enquiry conducted by the 'Complaints Committee', the allegations of sexual harassment were found proved. Accordingly, the petitioner has been inflicted with the penalty of reduction to the lower post/grade of Sub-Inspector for a period of three years, which shall be a bar to his promotion during such period to the post/grade of Asstt. Commandant, and this period would not be reckoned for the purpose of his original seniority and would also have the effect of postponing future increments of his pay. 14. While refuting the allegations of bias for the petitioner appeared as witness against the complainant, learned counsel would submit that the Lady Constable-Baljeet Kaur (complainant), was inflicted with the penalty of withholding of one increment for a period of one year without cumulative effect vide order dated 16th June, 2008, of the Assistant Commandant CISF ASG, Ahmadabad; on the basis of the charge memorandum issued on the basis of report submitted by HC/GD Ram Singh and Preliminary Enquiry conducted by Inspector/Exe. Manoj Sharma. It is further contended that during the course of Preliminary Enquiry, statements of 12 witnesses were recorded including the petitioner. However, that fact by itself cannot be construed to be basis for sustaining the allegations of malafide/bias. 15. The 'Complaints Committee' returned a finding of guilt on the charge of allegations of sexual harassment of the Lady Constable-Baljeet Kaur and the matter was taken up for consultation with the UPSC, who tendered its advise, and accordingly, the penalty has been imposed which is perfectly legal, valid and in consonance with the service law jurisprudence. 16. 15. The 'Complaints Committee' returned a finding of guilt on the charge of allegations of sexual harassment of the Lady Constable-Baljeet Kaur and the matter was taken up for consultation with the UPSC, who tendered its advise, and accordingly, the penalty has been imposed which is perfectly legal, valid and in consonance with the service law jurisprudence. 16. It is also asserted that the arguments raised on behalf of the petitioner in substance called for re-appreciation of the evidence, which is beyond scope of judicial review under Article 226 of the Constitution of India, and therefore, the writ application merits rejection on that count alone. 17. Written submissions have been filed by the parties. 18. In support of his submissions, learned counsel has placed reliance on the opinion in the case of Man Singh v. Union of India and Ors. and Ajay Tripathi v. Union of India and Ors., decided by a common judgment and order by the Delhi High Court dated 21st December, 2012. 19. I have heard the learned counsel for the parties and with their assistance perused the relevant materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 20. Indisputably, the 'Complaints Committee' on a detailed enquiry into the allegations of sexual harassment made by the Lady Constable-Baljeet Kaur, on an analysis of the materials on record and the statement of the complainant, the charged official, the witnesses and the documentary evidence brought on record with reference to the incidents occurred in the May, 2007, held thus: "The documentary evidence shows that both the Complainant L/Const Baljeet Kaur and the Charged Official SI Naimish Kumar were present in the unit from 01st May 07-17th May 07. They both proceeded on leave on 18th May 2007 so SI Naimish Kumar's contention that how could he commit such an act from a distance of 1000-1500 kms is not correct. However, out of these 17 days, L/Const Baljeet Kaur had performed 'A' Shift duty in International Terminal on 03 days i.e. 03.05.07, 06.05.07 and 15.05.07. On these days SI Naimish was on duty in the 'C' shift on 03.05.07 and 06.05.07 and in 'B' shift on 15.05.10. They were on duty in the same shift on 16th May i.e. the 'A' Shift but L/Const Baljeet Kaur was on duty in the Domestic Terminal on that day. On these days SI Naimish was on duty in the 'C' shift on 03.05.07 and 06.05.07 and in 'B' shift on 15.05.10. They were on duty in the same shift on 16th May i.e. the 'A' Shift but L/Const Baljeet Kaur was on duty in the Domestic Terminal on that day. L/Const Baljeet Kaur has been unable to tell the date of the incident. Due to lac of a specific date, the truth regarding the incident alleged to have occurred in May 2007 cannot be established beyond doubt." 21. With reference to the incident of October, 2007, the 'Complaints Committee' observed thus: "Though the DW's have stated that the PW's and the Complainant expressed their enmity with the Charged Official at different points of time but they have not been very convincing. DW 1 Insp Rajender Kumar stated that L/Const Baljeet Kaur had been put up for her negligence and slackness on duty and as a result, she felt revengeful towards SI Naimish Kumar and Const Patil and threatened to 'see' these people and this was informed to him by the CHM of the Coy. Lalji Singh and the writer Inamdar Jalil, but he also admitted that the Complainant had spoken about taking revenge from the CIW staff and had not named the Charged Official. He also admitted that there were other women staff in the unit who had faced disciplinary action, but no other lady had levelled such an allegation. He was not able to say why a complaint was submitted against only 02 staff of CIW when the wing had a strength of the 13 other personnel. DW 2 HC/GD Udai Singh stated that L/Ct Baljeet Kaur threatened HC Ram Singh of CIW in the month of May/June that though she was going on leave she will "see them" because they had reported against her. He had heard L/Ct Baljeet Kaur threaten HC Ram Singh of CIW because he was sitting on the side seat of the bus, HC Ram Singh was sitting on the seat in front of L/Ct Baljeet Kaur and though she had made this threat in a very soft voice but he could hear this threat because he was sitting in the same line as L/Ct Baljeet Kaur but he had not informed about this threat to any senior officer. DW 3 Insp/Exe R.K. Yadav stated that he had heard from other unit personnel that L/Const Baljeet Kaur had said that these people had got her punished and also got Kishen Kumar removed from service and she will not leave these people and that L/Const Baljeet Kaur had made this complaint on the advance of her sister Gurmeet Kaur who is a press reporter. He had heard about all this from the 'B' Coy personnel but did not remember the name of the persons to whom L/Const Baljeet Kaur had said that she will take revenge, but he remembered that Const. Nagesh had told him that L/Const Baljeet Kaur had spoken of revenge. When asked as to why Const Nagesh would tell him this, he stated that he did not know Cost Nagesh from earlier but Const Nagesh had told him this. When asked as to how can it be proved that Insp R.K. Yadav said that he used L/Const Baljeet to take revenge, he stated that Insp R.K. Yadav did not say that he used L/Const Baljeet Kaur as a means for seeking revenge but Insp R.K. Yadav had been punished earlier and L/Const Baljeet Kaur was punished much later and Insp R.K. Yadav had not taken any action earlier after his punishment but after L/Const Baljeet Kaur was punished, these 3-4 personnel were seen standing and talking and may be they were speaking about this. DW 4 SI Liyakat Ali stated that L/Const Baljeet Kaur levelled this allegationn in connivance with the 05 PW's as they had been reported by SI Naimish for their habit of picking up SRI's but he was not aware as to what action had been taken against the five PW's who were in the habit of picking up SRIs. While posted in the unit he had never had any rumour regarding the character of L/Const Baljeet Kaur. DW 5 Const. K.L. Sharma stated that Insp R.K. Yadav had said to him that he would 'see' these people in Delhi and L/Const Baljeet Kaur had said that she knew that the complaint was false but she gave that complaint to teach them a lesson, but he was not aware how frequently SI Naimish was performing duty in 'B' coy. He was also not aware of the alleged incident but also admitted that such incidents should not be known to all the personnel. He was also not aware of the alleged incident but also admitted that such incidents should not be known to all the personnel. DW 7 L/SI/Exe Divya K.S. stated that L/Ct. Baljeet Kaur had a very strong and intimate relationship with Kishan and she had informed her that Kishan was removed from service because of CIW personnel. She could state without doubt that L/Ct Baljeet Kaur has conspired with the five witnesses because all these five witnesses did not get along with SI Naimish as in an enquiry SI Naimish had testified against these people because of which they had been punished and posted out. When asked by the Complainant that the dummy check quoted by her in her statement was not done by SI Naimish but by SI Liyakat Ali and as a result of which she had been given extra duty by the Assistant Commandant, then she should have complained against SI Liyakat Ali and not against SI Naimish because of whom she has never got any extra duty, she replied that SI Naimish was performing duty with SI Liyakat Ali that day. DW 8 Const. Inamdar Jalil stated that she was threatening to "see" SI Naimish Kumar and Const Patil and this was communicated by him to the Coy commander. When L/Const Baljeet Kaur was ill Insp S.N. Choudhary had instructed him to put Const Nagesh on hospital duty and not to change the duty without his orders. Const. Nagesh used to come back from the hospital and report to Insp S.N. Choudhary and as a result Insp S.N. Choudhary had instructed Kauleshwar to give in writing about her relationship with Kishan Kumar. He informed the same to his Coy Commander Insp Rajendra Kumar but did not report the matter to his permanent Coy Commander Insp S.N. Choudhary because he thought that Ins Rajendra Kumar will inform the matter to Insp S.N. Choudhary. Other personnel of the unit had also been punished for carelessness on duty and explanations had also been called for from other people of the coy for their absence from Regimental duties but he did not remember their names, and only he (no one else) was told not to speak to SI Naimish Kumar. DW 9 Insp Ashwani Kumar Singh was posted at ASG Ahmedabad wef. March 2008 i.e. 05 months after the October incident so his statement has no value. DW 9 Insp Ashwani Kumar Singh was posted at ASG Ahmedabad wef. March 2008 i.e. 05 months after the October incident so his statement has no value. DW 10 SI Subhash Chand was not specific. All the above shows that most of the DW's are indulging in hearsay or those like DW 5 Const. K.L. Sharma who stated that Insp. R.K. Yadav had said to him that he would 'see' these people in Delhi and L/Const Baljeet Kaur had said that she knew that the complaint was false but she gave that complaint to teach them a lesson, are also not able to establish a concrete connect between the alleged statements given by two different persons at two different points of time. The fact that L/Const Baljeet Kaur has not presented any documentary evidence against him and she has only said that she gave a written complaint that was taken out by SI Naimsih Kumar but was unable to state from where he had taken it out is correct. But the fact that Insp S.N. Chouhdary has confirmed that he had received and forwarded her application and that Insp R.K. Yadav has also confirmed the same is enough to corroborate the Complainant. The contention of the Charged Official that Insp S.N. Choudhary had forwarded the Complaint twice and both times it disappeared then being Coy Commander, he is responsible for the disappearance else he should inform the dispatch number of the Complaint is correct but the Complainant cannot be blamed for the fault of the Coy Commander. The statement of the Charged Official that the Complainant did not mention the date of incident in her complaint and at various stages of enquiry, he kept asking for the date of incident, but even after two years, the L/Const did not give a date an without a date, it was not possible for him to put up a proper defence and thus he was denied the opportunity of proper defence is not correct. The Complainant had maintained all along that she did not remember the exact date of the incident as nearly a year had elapsed before she gave a complaint. Despite this, the Charged Official was willing for the enquiry to be continued. As per records available in the case file 'B' and the Order Sheet, it is seen that nowhere before 07.04.10 has he insisted for a date. Despite this, the Charged Official was willing for the enquiry to be continued. As per records available in the case file 'B' and the Order Sheet, it is seen that nowhere before 07.04.10 has he insisted for a date. He was free to do so at any stage. The day he insisted the Complaint Committee asked the Complainant to furnish the date of the incident and the complainant asked to inspect the duty deployment and her leave records in order to remember the date. But the Charged Official submitted an application to the Complaint Committee again on 08.04.10 asking that those records not be furnished to the Complainant. As far as the allegation that during cross-examination of Insp. S.N. Choudhary, Insp R.K. Yadav. SI Sunil Kumar, SI Shailendra Kumar and SI Vipin Kumar, the Complaint Committee did not allow him to ask questions that were related to the enmity and hence relevant thus denying him the opportunity is concerned, it is seen that he has been allowed to ask upto 40 questions from the PW's that were considered relevant to the case. The enquiry was concerning the allegation of sexual harassment not concerning his enmity with the PW's. To say that he forced to give the names of his defence witnesses and keeping faith in the Enquiry and to ensure a speedy closure, he got the statements of his defence witnesses recorded is grossly inaccurate. How can a Committee comprising of 04 members (including an NGO member) force him to do something. It can be seen from the records that he has given representations regarding various issues like threat to his life etc. to the Complaint Committee from ASG Ahmedabad, that were duly forwarded by the Unit Commander and responded to by the Complaint Committee. If the Committee was forcing him, he was free to represent to the Committee (as he has done in April, 2010) or to IG APS. But he did not do so. Why?. The judgments of the Courts as quoted by him apply to Court Cases and not to Departmental Enquiries." 22. On the basis of the above considerations and analysis, the Complaints Committee returned a finding of guilt with reference to the incident in the Month of October, 2007. The complainant was alone at the ladies frisking booth in the Security Hold Area, while she was touched inappropriately on her cheek by the petitioner. On the basis of the above considerations and analysis, the Complaints Committee returned a finding of guilt with reference to the incident in the Month of October, 2007. The complainant was alone at the ladies frisking booth in the Security Hold Area, while she was touched inappropriately on her cheek by the petitioner. The conclusion reads thus: "The Committee hereby holds that the allegation made by L/Ct/Exe Baljeet Kaur against SI/Exe (Now AC/UT) Naimesh Kumar that while at APSU Ahmedabad in the month of Oct. 2007 during lean hours at Domestic Terminal, when she was alone at the ladies frisking booth in the Security Hold Area, she was touched inappropriate on her cheek by SI/Exe (Now AC U/T) Naimesh Kumar which was derogatory to the dignity of a woman IS PROVED." 23. From the materials available on record and the analysis made by the 'Complaints Committee', the enmity between the prosecution witnesses and the complainant and the petitioner at different points of time has been expressed. However, the Committee did not find the expression of the defence witnesses and prosecution witnesses as well as the complainant very convincing. Moreover, the complainant did not mention the date of incident in her complaint nor there is any finding arrived at by the 'Complaints Committee', to the contrary. 24. The contention that the petitioner could not have been inflicted with the penalty of reduction of rank for he was directly appointed though through LDCE but in fact it is a direct recruitment; may not detain this Court for a long in view of the fact that the Ministry of Home Affairs (Personnel-II), New Delhi as well as Department of Personnel & Training Estt, Government of India, New Delhi, vide clarification dated 18th November, 2011, clarified that LDCE is a mode of promotion. The noting dated 18th November, 2011 as has been taken note of by a Division Bench of the Delhi High Court in the case of Man Singh and Ajay Tripathi (supra), which reads thus: "Department of Personnel & Training Estt (res) Reference notes of Ministry of Home Affairs on pages 2-3/ante. 2. Regarding clarification whether LDCE is Direct Recruitment or a mode of promotion, the RR Branch of this Department has clarified that the LDCE is a mode of promotion. 2. Regarding clarification whether LDCE is Direct Recruitment or a mode of promotion, the RR Branch of this Department has clarified that the LDCE is a mode of promotion. On the issue of change in category of a person, who has been appointed on the basis of reservation, it is clarified vide this Department's OM dated 11.7.2002 that SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any. sd- (Sharad Kumar Srivastava) Under Secretary (Res)" 25. Furthermore, the noting aforesaid has been reiterated by the Ministry of Home Affairs in another noting dated 22nd November, 2011, which reads thus: "Ministry of Home Affairs Pers - II Reference note on pre-pages. 2. This is regarding Writ Petition(C) No. 5460/2011 filed by Shri Sundeep Kumar Dubey, Constable) GD) of CRPF in the High Court of Delhi against his non-selection for the post of Sub, Insp(GD) through Limited Department Competitive Examination (LDCE), 2010. 3. The matter was considered in this Ministry (p-2/n) and DoP&T was requested to clarify the position as mentioned in para - 3(p-2/n). In this connection DoP&T vide their UO dated 18.11.2011 (p-4/n) has clarified the following:- Regarding clarification whether LDCE is Direct Recruitment or a mode of promotion, the RR Branch of this Department has clarified that the LDCE is a mode of promotion. On the issue of change in category of a person, who has been appointed on the basis of reservation, it is clarified vide this Department's OM dated 11.7.2002 that SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any. 4. We may convey the above mentioned clarification of DoP&T to CRPF. Sd- (R.P. Sati) Under Secretary 22.11.2011 Director (Pers)/DS(Pers-I)" (Underlining supplied) The correctness and authenticity of these nothings have not been disputed before us by the respondents." 26. By now it is well settled law that the departmental proceeding is a quasi judicial proceeding. The enquiry authority performs a quasi judicial function. Further, the charge levelled against the delinquent officer must be found to be proved. By now it is well settled law that the departmental proceeding is a quasi judicial proceeding. The enquiry authority performs a quasi judicial function. Further, the charge levelled against the delinquent officer must be found to be proved. It is the duty of the enquiry authority to arrive at a finding on the basis of consideration of the materials brought on record by the contesting parties. 27. From the materials available on record, the 'Complaints Committee', with reference to the incident of October, 2007, specifically concluded that the complainant/Lady Constable-Baljeet Kaur has not presented any documentary evidence against the petitioner and made a statement to have given a written complaint that was taken out by the petitioner but was unable to state from where he had taken it out. However, the fact has been relied upon the basis of on the statements of Inspector S.N. Choudhary and Inspector R.K. Yadav. 28. From the enquiry report, it is further reflected that Inspector S.N. Choudhay had forwarded the complaint twice and both the times it disappeared then it was the Coy Commander, who should be responsible for disappearance of the complaint. The contention has been brushed aside by the Complaints Committee for the reason that the complainant cannot be blamed for the fault of the Coy Commander. 29. From the discussions and findings of the 'Complainants Committee', as reflected from the enquiry report (Annexure-20), it appears that it was the petitioner who was required to disprove the allegations. Moreover, the fact that the complaint was twice forwarded had gone missing, is not in dispute. Some evidence should have been brought on record to indicate that the petitioner did indulge in the act as alleged by the complainant. The fact that the complainant so also the prosecution witnesses were proceeded with for charges by way of departmental proceedings and the petitioner was one of the witness, who appeared against them, is also not in dispute. 30. In the case of Roop Singh Negi v. Punjab National Bank and Ors., 2009 (2) SCC 570 , on a survey of earlier opinions, the Hon'ble Supreme Court held thus: “15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. In the case of Roop Singh Negi v. Punjab National Bank and Ors., 2009 (2) SCC 570 , on a survey of earlier opinions, the Hon'ble Supreme Court held thus: “15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. 16. In Union of India v. H.C. Goel: it was held:(AIR pp. 369-70 paras 22-23) 22...The two infirmities are separate and distinct though, conceivably, in some cases, both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides, but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issued without further proof of mala fides. That is why we are not prepared to accept the learned Attorney-General's argument that sine no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent. 23.That takes us to the merits of the respondent's contention that the conclusion of the appellant that the third charged framed against the respondent has been proved, is based on no evidence. 23.That takes us to the merits of the respondent's contention that the conclusion of the appellant that the third charged framed against the respondent has been proved, is based on no evidence. The learned Attorney-General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by he appellant is a reasonably possible view, this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondents case is, is there any evidence on which a finding can be made against the respondent that charge No. 3 was proved against him ? In exercising its jurisdiction under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which dealt with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charges in question is proved against the respondent ? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the respondent's grievance is well-founded because, in our opinion, the finding which is implicit in the appellant's order dismissing the respondent that charge number 3 is proved against him is based on no evidence. 17. In Moni Shankar v. Union of India, this Court held: (SCC p.492 para 17). “17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. 17. In Moni Shankar v. Union of India, this Court held: (SCC p.492 para 17). “17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. 18. In Narinder Mohan Arya v. United India Insurance Co. Ltd. whereupon both the learned Counsel relied upon, this Court held: (SCC p.724, para 26). “26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following:- (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. (See State of Assam and Anr. v. Mahendra Kumar Das. (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice (See Khem Chand v. Union of India and State of Uttar Pradesh v. Om Prakash Gupta. (See State of Assam and Anr. v. Mahendra Kumar Das. (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice (See Khem Chand v. Union of India and State of Uttar Pradesh v. Om Prakash Gupta. (3) Exercise of discretionary power involve two elements (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. (See K.L. Tripathi v. SBI) (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. (See Sawai Singh v. State of Rajasthan) (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. (See Export Inspection Council of India v. Kalyan Kumar Mitra. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. (See Central Bndank of India Ltd. v. Prakash Chand Jain and Kuldeep Singh v. Commr. Of Police)” 21. Yet again in M.V. Bijlani v. Union of India, this Court held:( SCC p.95, para 25). "25...Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with. 22. Yet again in Jasbir Singh v. Punjab & Sind Bank, this Court followed Narinder Mohan Arya v. United India Insurance Co. Ltd. and Ors.(supra), stating: (Jasbir Singh case, SCC p.570, para 12) 12. He cannot enquire into the allegations with which the delinquent officer had not been charged with. 22. Yet again in Jasbir Singh v. Punjab & Sind Bank, this Court followed Narinder Mohan Arya v. United India Insurance Co. Ltd. and Ors.(supra), stating: (Jasbir Singh case, SCC p.570, para 12) 12. In a case of this nature, therefore, the High Court should have applied its mind to the fact of the matter with reference to the materials brought on records. It failed so to do. 23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof. 31. In the case of South Bengal State Transport Corporation (supra), a three judge Bench of the Hon'ble Supreme Court reiterating the opinion in the case of Nyadar Singh (supra) held that an employee can be reverted to a lower post or service, he cannot be reverted to a lower post than the post in which he entered service, and held thus: 20. We may next consider whether the punishment is permissible in service jurisprudence. It is well settled that while an employee can be reverted to a lower post or service, he cannot be reverted to a post lower than the post in which he entered service (See: Nyadar Singh v. Union of India). We may next consider whether the punishment is permissible in service jurisprudence. It is well settled that while an employee can be reverted to a lower post or service, he cannot be reverted to a post lower than the post in which he entered service (See: Nyadar Singh v. Union of India). Further it is also well settled that reversion to a lower post or service does not permit reversion to a post outside the cadre that is from regular post to a daily wage post. We are therefore of the view that the punishment inflicted on the delinquent employee not being one of the punishments enumerated in Regulation 36, is not permissible in law. 21. However we are of the view that the reasoning of the High Court for quashing the order of punishment is not sustainable. While we do not agree with the High Court that the enquiry is to be set aside on the ground of bias, we agree that the punishment imposed by the disciplinary authority requires to be modified. Though, normally, in such a situation the matter should be referred back to the disciplinary authority for imposition of fresh penalty, having regard to the facts and circumstances and to do complete justice, we propose to impose the penalty.” 32. In the instant case at hand it is evident from the clarifications dated 18th November, 2011 and 22nd November, 2011, which have been taken note of by the Delhi High Court in the case of Man Singh (supra) that LDCE is a mode of promotion. Therefore, the assailant on that count cannot be sustained. 33. From the facts and materials on record, it is evident that there is no eye-witness of the incident and no date of the month of October, 2007, on which the alleged incident occurred, was furnished by the complainant. So also the complaint that was made by the Lady Constable Baljeet Kaur had gone missing. Therefore, in such circumstances, normally the matter should be referred back to the disciplinary authority for consideration afresh but having regard to the facts and circumstances of the case at hand as well as keeping in view the fact that the incident dates back to year 2007; it will be appropriate to put a quietus to the matter to do complete justice. 34. Accordingly the writ application is partly allowed with the following directions:- 35. 34. Accordingly the writ application is partly allowed with the following directions:- 35. The petitioner after the reduction to the lower post/grade of Sub-Inspector for a period of three years has spent out the period and has been restored to the original position. It would, therefore, it will be sufficient to modify the penalty imposed on him and direct that the period of service in the lower post/grade/Sub-Inspector be treated as service in the post held by him prior to imposition of penally, subject to the condition that the petitioner shall not be entitled to difference of salary during the period of reduction. The period shall be counted for seniority and will not have the effect of postponing the future increments of pay. 36. Ordered accordingly. 37. However, in the facts and circumstances of the case, there shall be no order as to costs.