SC overturns HC order against BSF head constable

The Supreme Court on Friday said that the existence of transformative legislation to prevent sexual harassment at the workplace may not come to the aid of aggrieved persons if the appellate mechanisms turn the process into a punishment.

"It is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution. It is also important to be mindful of the power dynamics that are mired in sexual harassment at the workplace," a bench of Justices D Y Chandrachud and A S Bopanna said.

The top court highlighted a rising trend of invalidation of proceedings inquiring into sexual misconduct, on hyper-technical interpretations of the applicable service rules.

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There are several considerations and deterrents that a subordinate aggrieved of sexual harassment has to face when they consider reporting sexual misconduct of their superior, it pointed out.

The court allowed a petition by the Union government against Calcutta High Court's division and single-judge bench orders which had overturned BSF Director General's decision to hold a head constable guilty of sexual misconduct against a constable. The head constable was handed down punishment of severe reprimand and forfeiture of five years service for promotion and seven years service for pension.

Without commenting on the merits of the case, the bench said, it is evident that the discrepancy regarding the date of occurrence was of a minor nature since the event occurred soon after midnight and on the next day. However, deeming such a trivial aspect to be of monumental relevance, while invalidating the entirety of the disciplinary proceedings against the accused and reinstating him to his position rendered the complainant‘s remedy at nought, the court added.

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The history of legal proceedings such as these is a major factor that contributes to the deterrence that civil and criminal mechanisms pose to persons aggrieved of sexual harassment, the court further said, adding, the High Court, here, was not only incorrect in its interpretation of the jurisdiction of the Commandant but also demonstrated a callous attitude to the gravamen of the proceedings.

"We implore courts to interpret service rules and statutory regulations governing the prevention of sexual harassment at the workplace in a manner that metes out procedural and substantive justice to all the parties," the bench said.

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