Receiving a statement of reconciliation by parties in a sexual harassment case in iaf
Wing Commander Shaleen Airon
(Querist) 14 November 2014
This query is : Resolved
Dear Sirs and Ma'ms,
1. I am the Commanding Officer of an independent Air Force Unit in Assam. Being the Commanding Officer, I am also vested with Quasi-Judicial authority.
2. In Sep 2013, a women employee employed on daily wage basis as a ‘Ayah’ in my unit made allegations of Sexual harassment against one of my Airmen (havildar). The alleged incidents happened mostly when I was on leave for am month in Aug-Sep 2013.
3. I asked for the complaint in written from the lady which she gave me. I forwarded the written complaint to my immediate higher authority , which ordered a Court of Inquiry on 15 Oct 2013. The same Court of Enquiry was re-convened by higher authority 3 more times and finalised in Mar 2014.
4. As per the statements of witnesses , the airman was deemed as ‘Blameworthy’. The Immediate higher authority conducted a Charge Trial on 15 Sept 2014. The Authority declared that the evidence be reduced to writing by convening a ‘Summary of Evidence’.
5. Meanwhile, on many occasions , between 16-20 Sep 2014, I was apprised by a civil employee working in my unit that he has counselled the lady to reconcile and told me that the lady was very upset and tensed because no witness had deposed in her favour in the ‘Summary of Evidence’ and wanted to speak to me urgently.
6. I always had a neutral stance and my name was nowhere involved in the matter. However, as the lady also happened to be a daughter of a retired brother soldier (A retd JCO of army) and had worked in my office , I called her.
7. She told me that she wanted to take the case back as she felt very harassed coming again and again for past one year. I again maintained my neutrality . I called her twice more out of sheer concern.
8. On 26 Sep 2014, she came to my office and wanted to give a statement of reconciliation withdrawing all allegations against the airman. I asked her to go to the Presiding officer of Summary of Evidence or the immediate higher authority which was handling the case. She refused , citing her sensitivities that she doesn’t want to go there anymore and everyone knows her case and she is a localite and this might also lead to marital discord.
9. I called in my airman and told him and he accepted her offer. She wrote the statement in presence of 3 more witnesses who were employees of my unit. The other 3 witnesses also satisfied themselves that she was not under any duress / threat to give such a statement and that she had come on her own volition and it was her own desire and decision to withdraw the allegations.
10. I forwarded the statements of reconciliation between the two immediately to the higher authority handling the case. I have not given any decision or any recommendations or wrote that ‘ the case may be closed’ or that ‘the parties have reached a reconciliation’. I simply forwarded the statement of both to the higher authority for their decision on them.
11. Now, the IAF authorities didn’t like this development for reasons best known to them . They instituted another court of enquiry against me to probe if I had any role in influencing or pressurizing the complainant.
12. The lady never didn’t even attend the proceedings of this Court of Enquiry despite repeated requests and calls from the enquiry officer. She has not offered any statement or complaint in this court of enquiry against anyone.
13. The lady has not made any complaint anywhere against me till now in any manner to any authority (military/civil) till date.
14. The court of enquiry didn’t declare me as blamed / blameworthy and the proceedings were submitted to the higher convening authority citing her as ‘absent’.
15. I had pleaded that I am innocent in the whole matter and that I am in fact the one who took the matter to higher authorities for investigation and disposal, i.e. to award a suitable punishment to the offended if he is found guilty. I am aware that the punishment could be a ‘dismissal’ from service , and this is beyond the scope of my quasi-judicial powers and hence the case was forwarded to higher headquarters from the very start . It has been one year, I have not asked any party to reconcile as my name was nowhere involved in the case.
15. Today, I have received a show cause notice from the Command Headquarters asking for my reply and citing an assumed / surmised allegation of ‘ Motive to close the case’, as I have communicated with the complainant on telephone twice or thrice.
16. I am sure to be awarded a punishment by my Command headquarters chief called the AOC-in-C of rank of Air Marshal who is higher in the chain of command than my immediate higher authority.
17. What can I do to help my case? Isnt it wrong to be issued a show-cause / convene a Court of enquiry in the absence of any complaint?
18. Also, I was due for my promotion to the next higher rank after 4 days. The IAF authorities are premeditated to punish me for this ‘assumed / conjectured offence’ and also have delayed my promotion till the whole proceedings are completed.
19. The promotion letter has already been issued by Ministry of Defence. But IAF has withheld my promotion and also hell bent on giving me a punishment for the misconduct.
20. Kindly guide me as to how can I prepare a good defence.
Thank you very much.
Sudhir Kumar, Advocate 
(Expert) 14 November 2014
The case has been handled in total violation of the Supreme Court Judgement in Vishakha case.
COI held in this case is illegal.
The Supreme Court has laid seperate procedure for handling these case and the same is being followed in short cut of the statutory process laid down in CCS(CC&A) Rules. The same analogy operates.
Pressure (said to be counseling) given to the complainant is illegal.
The civilian employee who mediated the patch up is also guilty of violation of rule 3 of CCS(Conduct) Rules.
Sudhir Kumar, Advocate
(Expert) 14 November 2014
repeated
http://www.lawyersclubindia.com/experts/I-ACCEPTED-A-STAEMENT-OF-RECONCILIATION-B-W-TWO-PARTIES-INVOLVED-IN-A-SEXUAL-HARASSMENT-CASE-507471.asp#.VGYI82eO5G0
Wing Commander Shaleen Airon
(Querist) 14 November 2014
Sir,
the pressure / counselling for reconciliation has not been given by me.
- there was no mediation for reconciliation, it was the ladies own volition.
She is harassed as: the time taken is 1 year in her complaint for even the enquiry that is till going on.
- the correct local Complaints committe was never formed by IAF authorities.
....
So, I accepted the reconciliation on request of the lady as the Local Complaints Committee was non existent.
- Further sir, the lady has no complaints against me , as I always supported her in her cause.
...
Please tell me my fault in the matter.
Regards
Devajyoti Barman
(Expert) 14 November 2014
First course of action is to give a detailed written explanation of show cause.
If therefore any disciplinary action is initiated you have to face it and till then unfortunately your promotion would be held in suspension.
If the turn of event you have just mentioned is right then I do not think any matter of concern in your case as far as merit f the case is concerned unless some unscrupulous persons have grudge or ulterior motive against you.
Anyway good luck. Truth will prevail.
Wing Commander Shaleen Airon
(Querist) 14 November 2014
Yes, Adv Devajyoti Sir,
I agree with you and thank you for your professional advice.
The Command Judge Advocate wants to make an example of the accused airman and is not willing to accept this reconciliation b/w the parties as legally tenable.
Now, to make that happen , they are trying to prove through surmises and conjectures that I have influenced the complainant (though the lady has not given any complaint against me anywhere)
Premeditated and egoistic approach of disciplinary authorities is evident and possibly the bias of obstinacy is also in play ( as per my very limited legal knowledge)
Sudhir Kumar, Advocate
(Expert) 14 November 2014
In this case I do not have the privilege of agreeing with Mr Barman.
I would request to refer to Judgement of Supreme Court in Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997 [available at http://indiankanoon.org/docfragment/1031794/?formInput=vishaka]
Govt instruction on the subject are in DOPT OM No. 11013/10/97-Estt.(A), dated 13.02.1998
R.K Nanda
(Expert) 14 November 2014
query too long to reply.
Sudhir Kumar, Advocate
(Expert) 14 November 2014
You said
“I am the Commanding Officer of an independent Air Force Unit in Assam. Being the Commanding Officer, I am also vested with Quasi-Judicial authority.”
Reality
AS PER DOPT INSTRUCTIONS [DOPT OM No. 11013/10/97-Estt.(A), dated 13.02.1998] FOLLOWING SUPREME COURT JUDGEMENT MENTIONED ABOVE SUPREME COURT JUDGEMENT THE COMPLAINT SHOULD BE INVESTIGATED BY A COMMITTEE HEADED BY (I) A LADY OFFICER (II) OF ATLEAST OF THE STATUS OF DY SECRETARY.
YOU ARE NEITHER LADY NOR STATUS EQUIVALENT TO DY SECRETARY.
FURTHER (I) THE COMMITTEE SHOULD BE 50% WOMAN COMPOSITION AND (II) MEMBER OF NGO DEALING WITH WOMEN RIGHTS TO BE ASSOCIATED.
THE REPORT OF THE COMMITTEE SHALL BE TREATED AT PAR WITH REPORT OF DEPTT INQUIRY.
AS PER ARTICLE 141 & 144 OF THE CONSTITUTION THE SUPREME COURT ORDERS HAVE THE FORCE OF LEGISLATION.
SO NO COI UNDER AIR FORCE ACT WAS REQUIRED.
Sudhir Kumar, Advocate
(Expert) 14 November 2014
You said
“the pressure / counselling for reconciliation has not been given by me.”
Reality
BUT YOU HAD TOLERATED THE INSTRUCTION OF A CIVILIAN EMPLOYEE WHO ACTED BEYOND HIS AUTHORITY AND MADE UNAUTHORIZED “ COUNSELING” TO THE LADY
YOU HAVE NOT DISCLOSE WHAT IS THE STATUS AND EXPERIENCE OF THE SAID CIVILIAN AND WHAT COUNSELING HE GAVE HER WHICH LEAD HER TO BE SUBDUED IN FAVOUR OF THE AIRMAN.
YOU HAVE FAILED TO APPRISE THE HIGHER AUTHORITY REGARDING NEED TO FORM THE COMMITTEE.
Sudhir Kumar, Advocate
(Expert) 14 November 2014
You said
- there was no mediation for reconciliation, it was the ladies own volition.
Reality
IT WAS NOT A CIVIL SUIT.
AS THE THINGS HAVE BEEN EXPLAINED BY YOU IT APPEARS THAT SHE ( A MERE DAILY WAGER COMPLAINING AGAINST A NCO) HAS BEEN SUCCESSFULLY CORNERED TO AGREE TO WITHDRAW
ONCE GIVEN A COMPLAINT SHE HAS NO POWER TO STOP THE PROCESS OF LAW. IT IS NOT HER PRIVATE OFFICE.
IN THE DISCIPLINARY CASES THE COMPLAINANT HAS NO RIGHT TO WITHDRAW THE COMPLAINT OR FORGIVE THE ACCUSED.
Sudhir Kumar, Advocate
(Expert) 14 November 2014
You said
She is harassed as: the time taken is 1 year in her complaint for even the inquiry that is till going on.
Reality
NO EFFORT HAVE BEEN (ATLEAST AS PER YOUR DESCRIPTION) THAT SHE IS NOT HARASSED AND MADE TO COME AGAIN AND AGAIN.
Sudhir Kumar, Advocate
(Expert) 14 November 2014
You said
She is harassed as: the time taken is 1 year in her complaint for even the inquiry that is till going on.
Reality
NO EFFORT HAVE BEEN (ATLEAST AS PER YOUR DESCRIPTION) THAT SHE IS NOT HARASSED AND MADE TO COME AGAIN AND AGAIN.
Sudhir Kumar, Advocate
(Expert) 14 November 2014
You said
- the correct local Complaints committee was never formed by IAF authorities.
Reality
TRUE. THE COMMITTEE HAS BEEN FORMED BY THE MIN OF DEF.
IN CASE COMMITTEE HAS NOT BEEN FORMED BY IAF THE IT GIVES NO LICENSE TO ANY AUTHORITY TO BY-PASS THE APEX COURT DIRECTIONS.
THERE IS NOTHING IN YOUR BLOG WHICH SUGGEST THAT YOU APPROACHED THE COMMAND HQ FOR FORMATION OF THE COMMITTEE.
Sudhir Kumar, Advocate
(Expert) 14 November 2014
You said
“So, I accepted the reconciliation on request of the lady as the Local Complaints Committee was non existent.”
Reality
IT IS NOT CIVIL SUIT. YOU HAVE NO AUTHORITY TO ACCEPT WITHDRAWAL OR COMPROMISE IN THIS CASE.
THE COMMITTEE HAS BEEN FORMED BY THE MIN OF DEF.
IN CASE COMMITTEE HAS NOT BEEN FORMED BY IAF THE IT GIVES NO LICENSE TO ANY AUTHORITY TO BY-PASS THE APEX COURT DIRECTIONS.
Sudhir Kumar, Advocate
(Expert) 14 November 2014
You said
- Further sir, the lady has no complaints against me , as I always supported her in her cause.
Reality
SHE HAS GIVEN A COMPLAINT AGAINST ONE NCO AND FACED SO MUCH SO SHE WILL NEVER IN HER DREAM GIVE ANY COMPLAINT AGAINST ANY MALE THAT TOO BEING COMMANDING OFFICER.
IN FACT THERE IS NO REQUIREMENT OF ANY COMPLAINT FROM HER AGAINST YOU. IT IS THE GOVT WHICH IS AGGRIEVED AGAINST YOU IN THE MANNER OF HANDLING THE CASE.
Sudhir Kumar, Advocate
(Expert) 14 November 2014
You said
The Command Judge Advocate wants to make an example of the accused airman and is not willing to accept this reconciliation b/w the parties as legally tenable.
Reality
THE RECONCILIATION HAS NO RELEVANCE IN LAW IN SUCH CASE.
IN DISCIPLINARY MATTERS IT IS THE EMPLOYER WHO IS AGGRIEVED AGAINST THE EMPLOYEE
Sudhir Kumar, Advocate
(Expert) 14 November 2014
You said
Now, to make that happen, they are trying to prove through surmises and conjectures that I have influenced the complainant (though the lady has not given any complaint against me anywhere)
Reality
YOU YOURSELF SAID THAT “She told me that she wanted to take the case back as she felt very harassed coming again and again for past one year” EVEN AT THIS JUNCTURE YOU DID JUST NOTHING TO PREVENT HARASSMENT RATHER SEIZED OPPORTUNITY TO CLOSE THE CASE.
AS PER FACTS GIVEN BY YOU IT APPEARS THAT YOU HAVE NOT INFLUENCED HER BUT JUST OVERLOOKED HER BEING BROKEN DOWN.
Sudhir Kumar, Advocate
(Expert) 14 November 2014
You said
Premeditated and egoistic approach of disciplinary authorities is evident and possibly the bias of obstinacy is also in play ( as per my very limited legal knowledge)
Reality
IN THIS CASE YOU HAVE TO TAKE CAUTION. IF YOU FELL THAT YOU HAVE REASONABLE GROUND TO SUSPECT BIAS AGAINST ANY PARTICULAR AUTHORITY YOU MUST EXPRESS THE SAME TO NEXT HIGHER AUTHORITY AT THE EARLIEST TIME (WHEN SUCH BIAS IS FIRST PERCEIVED BY YOU) SUBSEQUENT PLEA OF BIAS CANNOT BE ENTERTAINED.
Sudhir Kumar, Advocate
(Expert) 14 November 2014
You said
“I was apprised by a civil employee working in my unit that he has counselled the lady to reconcile and told me that the lady was very upset and tensed because no witness had deposed in her favour”
Reality
IN CASE HER OWN STATEMENT CAN STAND THE TEST OF CROSS-EXAMINATION IN THE COMMITTED AS ABOVE, THIS ITSELF WAS AN EVIDENCE.
SUCH CIVILIAN EMPLOYEE WHEN HIMSELF CONFESSED THAT HE IS PRESSURIZING THE COMPLAINANT WAS JUST TO BE TOLD TO GET OUT OF THE CHAMBER AND PROCESS FOR DISCIPLINARY ACTION AGAINST HIM SHOULD HAVE BEEN INITIATED. HE AS APPEARING FROM INFORMATION GIVEN BY YOU ACTING BEYOND JURISDICTION EVEN IF HE WAS A UNION LEADER.
Rajendra K Goyal
(Expert) 15 November 2014
Well advised, agree with the experts.
ajay sethi
(Expert) 15 November 2014
repeated query
Dr J C Vashista
(Expert) 16 November 2014
Repeated and too long query, which deserved to be stopped.
Even then, experts Mr. Barman and Mr. Sudhir Kumar has given detailed/eloborated befitting legal reply to vital points in the query, I fully agree with experts the author has manipulated the circumstances at number of points.
Engage a local lawyer practicing in service cases.
T. Kalaiselvan, Advocate
(Expert) 17 November 2014
First of all the author may be reminded that being a serving personnel of Defence services and also being an uniformed person subject to Air Force Act, seeking an opinion in a public forum like this outside the Air Force itself may be considered as an offence attracting disciplinary proceedings against you, hence better stop taking advises anymore from such forums, give reply to show cause notice as per the factual circumstances and try to come out of the crisis taking opinion from sources within the organisation.
Sudhir Kumar, Advocate
(Expert) 18 November 2014
I rarely have to express a view other than agreeing with Mr Kaialselvan.
i am sorry here my views are different. Being subject to AF Act one does not loose his right to seek legal advise when he is accused of misconduct.
He does not appear to have disclosed any sensitive information on net.
Dr J C Vashista
(Expert) 19 November 2014
Respectfully disagree with Mr. T. Kalaiselvan I agree with Mr. Sudhir Kumar as getting into defence service (either of the three wings i.e., Army/Air-Force or Navy), where fundamental rights of the person are suspended while being governed by the provisions of Army/Air Force or Navy Act, does not entitle him (now her as well) to defend him/herself seeking legal opinion, without disclosing secret/ confidential or restricted information(s) to unauthorised person.
@Sq Ldr Shaleen Airon,
From the aforesaid action(s) taken by you, I found nothing illegal, donot get unnecessary tensed and pressurised by Command JAG.
Although such incidents do disturb the peace of mind, especially when you are in command yet face them boldly, seeking advise from a local lawyer practising in criminal cases.
Sudhir Kumar, Advocate
(Expert) 19 November 2014
I am thankful to Dr Vashista for agreeing. However I am not so lucky (atleast on this thread) to receive similar thanks from him.
I express slightly different views.
I have already given detail analysis as to what wrong has been done by him. This forum does not know what is the SCN and what sections of Ari Force Act are likely to be imputed. Due to some reasons (which I do not want to share on open thread) I want to refrain from expressing further.
I am however not able to agree to the view that he need not worry. I know cat does not vanish if pigeon closes eyes.
However, I also express that neither local lawyer nor lawyer dealing with criminal cases can help him. He need to meet a lawyer well versed in disciplinary matter and preferably practicing in AFT.
Wing Commander Shaleen Airon
(Querist) 19 November 2014
Respected Sirs,
I somewhat agree with Expert Mr T. Kalaiselvan, Advocate, But , I am sure , I have not disclosed anything confidential / sensitive.
In any case, this site is a consortium of expert lawyers - all advice by legal experts will only further the cause of justice.
I am very thankful to all experts , Mr Sudhir, Dr vashishta , and Mr Barman and Mr kalaisevlan for their views and advice.
I have taken the services of a lawyer practicing in AFT Guwahati Bench and Guwahati High Court .
May it be known to you all , that by devoting your precious time in my query , you have helped a distressed soul , and earned my honest Best Wishes and respect.
The Honorable courts and the whole judicial system is the only succor for the common man in today's world of vendetta and Bad Times.
Many heartfelt thanks and regards.
T. Kalaiselvan, Advocate
(Expert) 20 November 2014
Sqn Ldr Mr. Shaleen Airon, my intention to post my opinion was absolutely not to hurt you or dissuade you from seeking a legal opinion and a possible way to come out of your present crisis. I am not talking about the rights of an individual to express his feelings or right to speak or write etc. It is a blanket issue that the uniformed personnel are not supposed to air their feelings in public/media especially when the matter is still subjudice within the military legal frame. It is not necessary that the matter aired in public should be concerned with the confidential matters of service, even the matters related to courts of inquiry or summary of evidence being conducted within the military campus will be a matter of confidentiality.As a matter of fact I would love to take up your case should it be around any place in down south like Chennai or Bengaluru and handle it appropriately.
To Mr. Sudhir Kumar, it is not a question of an individual's right, it is a subject matter of discipline in the disciplined force.
Dr. Vashista Sir, fundamental rights of an individual in the armed forces will be taken care of the force better than the individual himself, the rules are framed that way, since you served our mother country in the armed forces, you know that better than me. I am not writing this to contest your views, but expressing my opinion which I feel is in accordance to law.
Advocate. Arunagiri
(Expert) 20 November 2014
Seeking legal opinion and assistance will not amount to be a misconduct. The employee has every right to seek legal assistance.
Sudhir Kumar, Advocate
(Expert) 20 November 2014
I agree with the concern of Mr Kailaiselvan.
I agree that any armed forces person (rather any officer of any service)who is accused of offences relating to security of state will not be prudent to explain details on open public forum.
I do not see any sensitive information shared by him here. He has not even shown the identities of the persons and not even disclosed the name or even nature of unit. Most likely unit headed by Sqn Ldr may not be very large and logistic resources at command are bound to be limited.
But the querist here is accused of administrative wrong only (atleast appearing from facts given by him). He has violated a provision which is not adequately advertised and not even know to some female govt employees. Some people do not know that the Supreme Court Judgement quoted by me apply even to non-govt women employees.
I also agree that fundamental rights of Govt servants (more so for Armed Forces) can be abridged (rather are abridged) by "procedure established by law".
But right to seek constitutional remedies is not abridged. For constitutional remedies one has to seek legal opinion.
T. Kalaiselvan, Advocate
(Expert) 20 November 2014
I agree that expert Mr. Sudhir Kumar has given a very wonderful opinion and it has been explained very well with full justifications, however, I still consider it as his personal opinion not conforming to that of the military law. Let me not extend this thread anymore because the author (I believe) knows the gravity underlying in my opinion.
Sudhir Kumar, Advocate
(Expert) 20 November 2014
With ever present regard that I have in heart for Mr Kalaiselvan, I do agree with Mr Kalaiselvan that the Vishakha judgement and DOPT orders on the same are not taught as part of military law. But these remain law of the land.
T. Kalaiselvan, Advocate
(Expert) 21 November 2014
Sudhir Sir, I agree with your views but let my opinion be reserved for rainy days.
Dr J C Vashista
(Expert) 21 November 2014
Very well analysed and advised by the experts especially Mr. Sudhir Kumar and Mr. Arunagiri, I fully agree and appreciate their expert opinion on the subject. No room left to add.
