Delhi High Court reinstates BSF official dismissed over complaint of unwelcome physical contact, offering biriyani

The Delhi High Court recently observed that while it was imperative to deal sensitively with sexual harassment cases, courts and administrative authorities must remain alive to the "irreparable ignominy" that follows an unsubstantiated allegation of sexual harassment [Shantanu Saha Vs Union of India and Ors].

The Division Bench of Justice C Hari Shankar and Justice Om Prakash Shukla made these observations in a judgment granting relief to an official of the Border Security Force (BSF) who was dismissed from service for harassing a woman colleague.

The Court found serious irregularities in consideration of evidence by the General Security Force Court (GSFC) and, thus, ruled that petitioner Shantanu Saha had not received a fair trial.

"In matters involving allegations of a sexual nature where both accused and complainant are members of the Armed Forces, in ordinary course, it would be an imperative duty of the competent court to examine all available material, evidence, witnesses etc. with utmost diligence for adjudication. While due sensitivity to the plight of a victim of sexual harassment has to be ensured, the Court, and administrative authorities have also to be alive to the serious and irreparable ignominy that follows an unsubstantiated allegation of sexual harassment," the Court stressed.

In the case dating back to 2021, the complainant, who was on guard duty at a battalion, had accused Saha of touching her head and back with bad intention. Saha was on guard commander duties.

He was also alleged to have given her a packet of 'biryani' against her wishes. The complainant further accused Saha of spreading indecent remarks about the complainant. 

An Internal Complaints Committee (ICC) then examined the complaint. Relying on a phone call recording in which Saha had allegedly offered her biryani, the ICC recommended disciplinary action against him.

Thereafter, the GSFC was convened against Saha. He was charged with outraging the complainant’s modesty. In the proceedings, Saha was held 'not guilty' since evidence was found to be insufficient to establish the charges beyond reasonable doubt. 

However, the confirming authority directed the GSFC to convene proceedings again and record additional evidence. Thereafter, the GSFC examined more witnesses. On re-consideration, he was found guilty.

Ultimately, Saha was dismissed from service with a sentence of one year imprisonment. His appeal against the decision was subsequently rejected, leading to the present plea before High Court.

Challenging his dismissal, Saha's counsel contended that the CCTV camera footage of the spot where the alleged incident took place was not examined by the GSFC. The Court was told that the authorities had shifted the onus to produce the same on Saha.

Calling it "absurd" and inconsistent with the BSF Act and Rules, the Court said the authorities ought to have obtained or summoned the relevant CCTV footage in pursuit of justice, fairness and reasonableness.

“It is the respondent, who are custodian of the said CCTV footages. Henceforth, we find that concerned authority ought to have undertaken steps to obtain the CCTV footage and ensure that the accused had an effective opportunity of entering his defence. However, it is apparent from the record that the respondents made no attempts to obtain the CCTV footage,” it added.

The Court observed that in the absence of any corroborating eye witness, the CCTV footage was of higher importance and ought to have been examined. 

“There appears to be no eyewitness or direct evidence to substantiate the occurrence of the alleged incident. In these supervening circumstances, the weightage of a CCTV footage gains significance as it being corresponding electronic record, becomes the best and primary evidence of the occurrence, which according to us ought to have been produced and proved in accordance with Sections 61 to 65 read with Sections 65A and 65B of the IEA,” the Court stated. 

Thus, the Court allowed Saha's plea and directed that he be reinstated to the post from which he was dismissed, with all the consequential benefits but without any back wages of benefits accrued during the intervening period.

“This Court, being conscious of the confines of the power of judicial review available under Article 226 of the Constitution of India, cannot restrain itself from intervening to prevent a palpable miscarriage of justice, wherein the petitioner was effectively restrained from examining the best available primary evidence and therefore deprived of an effective opportunity of defence,” it said. 

Advocate Arjun Panwar appeared for petitioner. 

Central Government Standing Counsel Shubhra Parashar with advocate Virender Pratap Singh Charak appeared for the Union of India. 

[Read Judgment]