Twice cleared of sexual harassment charges, BSF officer gets Calcutta High Court clean chit

The petitioner’s writ petition challenged the purported showcause notice dated December 31, 2020 and the termination notice dated April 26, 2021.

Allegations by a woman officer

• The petitioner, a commandant who joined the BSF in 1988, was in 2014 accused of sexual harassment by a woman subordinate officer.
• The allegations centred on “sexually coloured” messages allegedly sent via WhatsApp.
• The court of inquiry was concluded against the petitioner, and suitable action was recommended on September 10, 2014.
• A Record of Evidence (ROE) was conducted, and the recording officer recommended administrative action, such as displeasure and a warning against the petitioner.
• In 2017, the commandant faced a trial before a General Security Force Court, which found him “not guilty” of all the charges.
• Before, during and after the trial, he was confined in a room and was not permitted to leave the BSF campus.
• The confirming authority, dissatisfied with the verdict on the primary charges of sexual harassment, remanded the matter for a revision trial.
• In September 2018, the revisional court re-evaluated the evidence and again returned a “not guilty.”

Justice Ajay Kumar Gupta ruled that the attempt to sack the officer after failing to secure a conviction in a judicial trial violated the principles of natural justice.

Administrative challenge

• Despite the dual acquittal, the director general (DG) of the BSF issued a showcause notice on December 31, 2020, under Section 10 (service termination) of the BSF Act, 1968, and Rule 20 (4)(c) of the BSF Rules, 1969.
• The BSF argued that further retention of the officer was “undesirable” and that a trial had become “inexpedient” because the GSFC’s findings were allegedly against the weight of evidence.
• The petitioner challenged these notices, including a second notice in April 2021, arguing they were issued with a “closed and prejudged mind” to bypass the judicial findings of the GSFC.
• Appearing for the petitioner, senior advocate Saptangshu Basu submitted that the said showcause notices were issued without application of mind and without semblance of reasoning with the sole objective of terminating the petitioner from the service, despite the GSFC having found “not guilty”.
• He argued that the impugned showcause notice, as well as the termination, issued by the authority, are whimsical, mala fide, and issued without any valid and sufficient ground.

State’s stand

• Representing the state, advocates D N Roy, along with Debapriya Gupta and Sourav Mondal, contended that the confirming authority rightly declined to accept the findings of the GSFC, believing that retention of the petitioner in service was not desirable, in terms of Section 11 (dismissal or removal of reduction by the director-general and officers) of the BSF Act, 1968, read with Rule 22(2) of the BSF Rules.
• It was further submitted that the petitioner failed to submit a proper reply, necessitating issuance of a second showcause notice dated April 26, 2021, proposing termination under Rule 20(4)(C).
• It was argued that an adequate opportunity was afforded to the petitioner and no prejudice was caused.
• It was further submitted that although the GSFC returned findings of “not guilty” on two occasions, such findings do not attain finality unless confirmed by the competent authority.
• The confirming authority, upon an overall assessment of the evidence, was not satisfied with the findings, and reasons for such dissatisfaction have been duly recorded in the showcause notice.
• It was contended that the petition is premature, as the petitioner approached the court without submitting a complete reply to the showcause notice.

‘Legally obligated to give reasons’

• It appears that the GSFC tried the petitioner under the BSF Act from June 20, 2017, to July 10, 2017.
• The GSFC conducted a full trial on the three charges levelled against the petitioner.
• After the culmination of the trial, the GSFC found him ‘not guilty’ of all three charges.
• The confirming authority, after going through the GSFC’s observation, found that there was sufficient evidence against the petitioner in the trial proceeding concerning the first charge, and the finding of the GSFC on the first charge was against the weight of evidence.
• The findings of the GSFC in the other two charges were accepted by the confirming authority.
• After the revision court again declared the petitioner “not guilty” and confirmed the earlier findings, the confirming authority again was not satisfied with the finding of the GSFC and observed that there was sufficient evidence in the trial proceeding with reference to the first charge against the petitioner.
• Upon careful perusal of Section 107 of the BSF Act, it is revealed that the findings of GSFC need confirmation by the confirming authority.
• The court is conscious that the writ court is not sitting in appeal to analyse and appreciate evidence tendered before the GSFC.
• However, in appropriate cases, a court has jurisdiction to interfere with the action of the authority when it is found to be mala fide, perverse, arbitrary, or unreasonable and a violation of the principle of natural justice.

‘Glaring example of perversity’

• Rule 22(2) makes it obligatory for the competent authority to inform the delinquent official of all adverse reports and call upon him to submit in writing his explanation.
• Sub-Rule 3, in no uncertain terms, makes it clear that after considering the defence of the employee, a decision to dismiss or remove him may be taken.
• The lawmakers have employed the word “may” with a view to giving discretion to the competent authority to take a decision whether or not the employee should be dismissed or removed.
• Importantly, such a decision needs to be taken in a judicious way by considering the explanation and defence of the employee.
• The second notice, dated April 26, 2021, was a glaring example of perversity since it was issued without giving the opportunity of a hearing to the petitioner.
• Ordinarily, when the showcause notices are set aside, the proper course is to remand the matter to the concerned authority to proceed afresh by issuing a fresh notice to show cause and to take its logical conclusion in accordance with law.
• However, this court is of the view that such remission is neither proper nor required in the present situation, since the petitioner is going to retire from service this month, i.e., March 2026, as disclosed by the parties at the time of argument.
• The showcause notice dated December 31, 2020, and the termination notice dated April 26, 2021, are hereby set aside.
• It is directed that the petitioner shall be entitled to all consequential benefits admissible in accordance with law as expeditiously as possible, preferably within four weeks.