KKT/Case No.

– 1155/13/16/2022/255
Name of the Complainant : Shahnaz Bano Ehsann Ali Shah
Kamla Raman Nagar, Dumping Road
Near Farkaniya Chowk, Baiganwadi
Govandi, Mumbai – 400 043
V/s.
Name of Respondent : The Dy. Commissioner of Police
Zone – VI, Mumbai

Date : 10th January 2023

Coram : Justice K.K. Tated, Chairperson

ORDER
Today complainant appeared along with her sister Sabrunisa
Tadvi.
Mr. Arjun Rajane, Senior Police Inspector and Mr. Vikram
Maske, Police Inspector, Shivaji Nagar Police Station is present.
1. Complainant filed the present complaint on the ground that
Police Authority failed and neglected to take action under Section
376 of Indian Penal Code against Anwar Bartan, Rizwan Gattu,
Afzal and Shah Nawaz. Her case is that these four persons sexually
assaulted her time and again. Not only that they prepared video of
rape also. The relevant portion of the complaint to that effect is as
under :
“
 ”

2. Complainant submits that time and again she approached the

Police Officer but they failed and neglected to take any action and
or registered F.I.R. When they contacted higher authority that time
Police Authority registered F.I.R. No. 0642 dated 10.06.2022 under
Section 376, 376(2) (h) (n) 376(d), 506, and 34 of Indian Penal
Code. She submits that in F.I.R. It is specifically stated that the date
of occurrence of offence is from 01.11.2021 to 31.12.2021 and the
F.I.R. registered on 10.06.2022 i.e. after more than six months and
that also when higher authority directed L.T. Marg Police Station.
3. Complainant’s case is that initially Shivaji Nagar Police
Station refused to take her complaint. Thereafter, she contacted
higher authority, then only Rekha Dighe Lady Police Officer Shivaji
Nagar Police Station, Govandi recorded her statement on
10.06.2022. She submits that though she made specific statement
before Police Authority about sexual harassment, investigating
officer failed and neglected to arrest those culprits. The relevant
portion of her statement dated 10.06.2022 read thus:
“
 ”

4. Complainant submits that those culprits approached to the

Session Court for anticipatory bail. The same was rejected on
23.08.2022. Thereafter, those culprits preferred anticipatory bail
application No. 2717 of 2022 in the High Court of Judicature at
Bombay, Criminal Appellate Jurisdiction. Complainant submits that
High Court also rejected their bail application. These facts are not
denying by the concerned Police officer.
5. Complainant submits that though the High Court also
rejected bail application till today Police Authority failed and
neglected to take appropriate steps. Today complainant filed
additional say dated 10.01.2023. Same is taken on record and
marked as Exhibit – ‘C’. Copy of the same is provided to the Police
Authority in advance.
6. Complainant submits that Police Authority with malafide
intention supporting the culprits and doing injustice against her and
therefore, they may be directed to take appropriate action against
the culprit and also pay compensation to her.
7. Mr. Arjun Rajane, Senior Police Inspector submits that they
already filed their report dated 09.07.2022 (Ex. A) and report dated
15.11.2022 (Ex.B). He submits that they visited the spot where
complainant is residing. He submits that it is impossible for
anybody to enter the complainant’s premises through the window.
In support of this contention Police Authority relies on para.15 of
their report dated 15.11.2022 which reads thus:
“15.
 ”

8. Sr. Police Inspector Mr. Rajane submits that after doing

investigation and spot inspection they are of the opinion that
complainant is making false allegations and therefore, it remained
on their part to arrest the culprits. He also made a submission
before this Commission that, investigation is going on and
therefore, complaint is required to be closed.
9. I heard both the parties at length. It is very surprising that
inspite of making specific allegations about sexual harassment in
writing, Police Authority failed and neglected to take appropriate
action immediately. It is to be noted that complainant in her
statement described in detail the way in which four culprits as stated
herein above entered her premises and committed rape on her.
Today she placed on record pen drive to that effect. Same is taken
on record. The pen drive clearly shows that third person can enter
complainant’s room through window also. It is very difficult to
understand why police officer are behaving biased in the present
matter, though the Session Court and High Court rejected bail
applications. They failed and neglected to take such action against
the culprit immediately.
10. Apart from that there was delay on the part of Police Authority
to register even F.I.R. in the present matter.
11. Considering all these facts I am of the opinion that it is a fit
case to advice Additional Chief Secretary, Home
Department and Dy. Commissioner of Police, Zone – VI, Mumbai
to hold independent inquiry and take action against the concerned
police officer, who failed to take appropriate steps in the present
matter. Not only that in view of the above mentioned facts I am of
the opinion that Government should pay as a token compensation
of Rs. 2,00,000/- (Rupees Two Lacs only) to the complainant within
two months from the date of receipt of the order.
12. In view of the above mentioned facts, the following
recommendation is made by invoking powers u/s. 18 of
The Protection of Human Rights Act, 1993 :
a) The Additional Chief Secretary, State of Maharashtra,
Home Department, Mantralaya, Mumbai and Dy.
Commissioner of Police, Zone – VI, Mumbai is advised to
hold inquiry and take appropriate steps against the
police officers who failed and neglected to register the
F.I.R. under Section 376 of Indian Penal Code and also
pay a compensation of Rs. 2,00,000/- (Rupees Two Lacs
only) to the complainant within two months from date of
receipt of order.
 b) It is made clear that if compensation is not paid within
two months from the date of receipt of order,
complainant is entitled interest on entire amount @ 8%
p.a. from the date of complaint till realization of the
amount.
c) Office is directed to provide the copy of this order to the
complainant as well as Police Authority free of charge.
d) Compliance of the above noted recommendations, be
made in accordance with the procedure u/s. 18 (e) of The
Protection of Human Rights Act, 1993 r/w. Regulation 22
to 24 of the Maharashtra State Human Rights
Commission, (Procedure), Regulations, 2011.
e) Office of the Ld. Secretary attached with this
Commission to take follow up action.
f) Complaint stands disposed of with this above mentioned
recommendation.

sd/-
(Justice K. K. Tated)
Chairperson

/
 KKT/Appeal No.–1/2022
Name of the Appellant : Vijay Jadhav
Clerk
Maharashtra State Human Rights
Commission
Mumbai
V/s.
Name of Respondent : The Secretary
Maharashtra State Human Rights
Commission
Mumbai

Date : 5th January 2023

Coram : Justice K.K. Tated, Chairperson

ORDER
Advocate Mr. Naik along with Appellant was present on
23.08.2022.
Today no one appeared on behalf of the complainant when
the matter called out.
2. The present appeal preferred by Appellant challenging the
order passed by the Respondent dated 24.09.2021 demoting the
Appellant from the post of Assistant to the post of Clerk with a
payscale of Rs. 19,900 – 63,300. The said order reads thus :

“
 “

3. It is the case of the Appellant that at the time of passing the

order the Respondent failed and neglected to follow the due
process of law. He submitted that imposing of harsh punishment
from post of Assistant with the pay scale of Rs. 38,600 – 1,22,800
to the post of Clerk in the pay scale of Rs. 19000 – 63,200 not as
per law and rules. This punishment has resulted in financial loss
to the tune of Rs. 42,458/- per month and mental agony.
Appellant submitted that while imposing harsh punishment which
is disproportionate to the charges framed against the Appellant,
the Respondent failed to state exactly the period for which
penalty i.e. demotion imposed on the Appellant. He submitted
that as per Sub Rule (2) Rule 5 of the Maharashtra Civil Services
(Discipline and Appeal) Rules, 1979, it is mandatory on the part
of Respondents to disclose the exact period of demotion.
Appellant further submits that even at the time of imposing
penalty, Respondent failed to consider Rule 9 (3) of the
Maharashtra Civil Services (Discipline and Appeal) Rules, 1979
(hereinafter referred Rules 1979).
4. Appellant submitted that while conducting the
Departmental Inquiry, Respondent failed to follow the process of
law. In support of this contention Advocate appearing for
Appellant relies on judgment of the Apex Court in the matter of
State Government Vs. Chandrabhan reported in AIR 1983
Supreme Court Pg. 803. It is stated in the said case that a civil
servant under suspension is entitled to the normal subsistence
allowance even after his conviction by the trial Court pending
consideration of his appeal filed against his conviction until the
appeal is disposed of finally one way or the other, whether he is
on bail or lodged in prison on conviction by the trial Court.
Para.20 of this authority reads thus:
“20. The learned Judges of the Division Bench have found
in the judgment under appeal that the object and purpose
of the main Rule 151 is to provide for subsistence
allowance pending suspension of the civil servant and that
the subsistence allowance mentioned in the main Rule and
the second proviso means a bare minimum which can
reasonably be provided for a civil servant who is kept under
suspension and without work and therefore not entitled to
full wages. If the civil servant under suspension, pending a
departmental enquiry or a criminal trial started against him,
is entitled to subsistence allowance at the normal rate
which is a bare minimum required for the maintenance of
the civil servant and his family, he should undoubtedly get
it even pending his appeal filed against his conviction by
the trial Court, and his right to get the normal subsistence
allowance pending consideration of his appeal against his
conviction should not depend upon the chance of his being
released on bail and not being lodged in prison on
conviction by the trial Court Whether he is lodged in prison
 or released on bail on his conviction pending consideration
of his appeal, his family requires the bare minimum by way
of subsistence allowance. Subsistence allowance provided
for in the second proviso at the nominal rate of Re. I per
month is illusory and meaningless. The contention of the
appellant that even the nominal sum of Re. I per month is
subsistence allowance for a civil servant under suspension
is as unreasonable as the contention of the appellant that
what should be the subsistence allowance for a civil
servant under suspension is for the authority empowered
to frame rules under Article 309 of the Constitution to
consider and that the civil servant who has entered service
is bound by the second proviso. The sum of Re. 1 per
month can never sustain a civil servant for even a day
much less for a month.”
5. Advocate for Appellant submits that in case in hand,
Respondent failed to pay even suspension allowance to the
Appellant without any reason. He submits that this can be one
of the ground for setting aside the impugned order passed by the
Respondent.
6. Advocate for Appellant submits that the Apex Court in the
matter of the Union of India and other Vs. Ashok Kumar
Aggarwal reported in 2013 (16) SSC 147 held that suspension
order should passed only where there is a strong prima facie
case against the delinquent, and if the charge stand proved,
would ordinarily warrant imposition of major punishment i.e.
removal or dismissal from service or reduction in rank etc. There
should be clarity in passing order. He relied on para 9 and 10 of
this judgment which reads thus:

“9. The power of suspension should not be exercised in an arbitrary

manner and without any reasonable ground or as vindictive misuse
of power. Suspension should be made only in a case where there is
a strong prima facie case against the delinquent employee and the
allegations involving moral turpitude, grave misconduct or
indiscipline or refusal to carry out the orders of superior authority are
there, or there is a strong prima facie case against him, if proved,
would ordinarily result in reduction in rank, removal or dismissal from
service. The authority should also take into account all the available
material as to whether in a given case, it is advisable to allow the
delinquent to continue to perform his duties in the office or his
retention in office is likely to hamper or frustrate the inquiry.”

“10. In view of the above, the law on the issue can be summarised to
the effect that suspension order can be passed by the competent
authority considering the gravity of the alleged misconduct i.e.
serious act of omission or commission and the nature of evidence
available. It cannot be actuated by mala fide, arbitrariness, or for
ulterior purpose. Effect on public interest due to the employee's
continuation in office is also a relevant and determining factor. The
facts of each case have to be taken into consideration as no formula
of universal application can be laid down in this regard. However,
suspension order should be passed only where there is a strong
prima facie case against the delinquent, and if the charges stand
proved, would ordinarily warrant imposition of major punishment i.e.
removal or dismissal from service, or reduction in rank etc.”
7. Advocate for Appellant submits that admittedly the
Respondent at the time of passing impugned order, demoting to
the Appellant from higher post to lower post failed and neglected
to clarify why the suspension is to be for whole period. He
submits that if specifically the period is not stated in the order,
then the order is required to be set aside. He submits that in a
case in hand, the Respondent neither paid suspension allowance
to the Appellant nor clarified in the impugned order that the
demotion is for which period and / or why for the whole period.
Therefore, the said order is required to be set aside with costs.
8. Advocate for Appellant submits that bare reading of the
impugned order passed by the Respondent clearly shows that
without applying the mind and Rules and Regulations same is
passed. During the course of argument Advocate for Appellant
mainly relied on following grounds raised in Appeal to show that
the impugned order is passed without following due process of
law. Those grounds are as under:

“V) The Respondent herein while imposing harsh punishment which are
disproportionate to the charges framed against the Appellant has also erred
in not expressly stating the period for which the penalty of reduction imposed
on the Appellant is to be made effective in consonance with sub-rule (2) of
Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules,
1979 which specifically mentions that Quote Rule 5 ( 2) Where a penalty
mentioned in item (v) or (vi) in Sub-rule (1) of Rule 5 is imposed on a
Government Servant, the authority imposing the penalty shall expressly
state in the order imposing the penalty that the period for which the reduction
is to be effective will be exclusive of any interval spent on leave before the
period is completed" Unquote.

VI) The Respondent herein while imposing harsh punishment which are
disproportionate to the charges framed against the Appellant has also erred
in not consulting the Commission for its advice before imposing any such
penalties on the Appellant, in consonance with Rule 9 (3) of the
Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which
specifically mentions that Quote Rule 9 (3) If the disciplinary authority
having regard to its findings on all or any of the articles of charge is of the
opinion that any of the minor penalties should be imposed on the
Government Servant, it shall, notwithstanding anything contained in Rule 10
of these rules on the basis of the evidence adduced during the enquiry held
under Rule 8 determine what penalty, if any, should be imposed on the
Government Servant and make an order imposing such penalty:

Provided that in every case where it is necessary to consult the

Commission, the record of the inquiry shall be forwarded by the disciplinary
authority to the Commission for its advice, and such advice shall be taken
into consideration before making any order Imposing any penalty on the
Government Servant" Unquote

VII) The Respondent herein has also erred in wrongly coming to the
conclusion that subsistence allowance cannot be paid to the Appellant for
the period of suspension, without having proved that the Appellant had not
remained present in the HEAD QUARTERS i.e. the office of the State
Human Rights Commission in the absence of any specific orders to remain
present and sign the Register kept in the office of the State Human Rights
Commission as falsely alleged in the Enquiry Report.

VIII) The Respondent herein completely failed and neglected to

consider/appreciate the factual aspect that there was no financial loss
caused to the State Human Rights Commission despite the alleged
pendency of files/matters mentioned in the articles of Show Cause Notice
and Enquiry Report, which was only due to the unavoidable circumstances
beyond the control of the Appellant as explained in details in his every
detailed replies.

IX) The Respondent herein completely failed and neglected to consider

and/or appreciate the fact that if at all it is to assumed without admitting that
there was any pendency/delay in clearing the files by the Appellant, then it
is not the Appellant alone who is responsible but also the superiors whose
duty was to supervise and keep tab on clearing of the files are too
responsible for the said pendency.

X) The Respondent herein also completely failed and neglected to consider

and/or appreciate the fact that the pendency if any, was only due to the
justifiable reasons mentioned by the Appellant in his every detailed replies
and not intentional or deliberate as sought to be projected by the presenting
officer and the findings given by the Enquiry Officer.
XI) The Respondent herein without considering and appreciating that the
suspension order ordinarily should be passed when there is strong prima
facie case against the delinquent and if the charges are proved it would
warrant an imposition of major penalty, had issued the order of Suspension
without paying his Subsistence allowance on flimsy and vague ground of
not being present in the Head Quarters during his suspension in the
absence of any clear cut orders. This position has been made clear in the
decision rendered by the Apex Court in the case of Union of India & anr. v/s
Ashok Kumar Aggarwal, reported in 2014 (1) SCJ 115.”

9. On the basis of the this submission the Ld. Advocate for

Appellant submits that in the interest of justice be pleased to
allow the present appeal and set aside the impugned order.
10. Though the Respondent was duly served, no one appeared
on behalf of him when the matter was called out. Respondent
filed their submission dated 19.07.2022 stating that the Appeal
filed by the Appellant is not maintainable on merits. It is also
stated in the said say that, at the time of passing the impugned
order he conducted fair inquiry as per disciplinary Rules and
followed the due process of law. Para. 1 and 2 of the said say
reads thus:

“1. The Respondent respectfully states that the Appeal filed by the appellant
is devoid of any merit. At the outset it is pointed out that as per Regulation
12(f) of the Maharashtra State Human Rights Commission (Procedure)
Regulations, 2011, the appeal is not maintainable as it relates to service
matter. It is submitted that the Maharashtra State Human Rights
Commission has no jurisdiction to entertain the Appeal in service matters.

2. The Respondent further states that the action against the appellant has
been taken as per the conduct and disciplinary rules by following due
process of law. Due enquiry was conducted against the appellant and the
Enquiry report found out- that the charges against the appellant have been
found correct and proved. The respondent has been given the opportunities
to put forward his side and decisions have been taken following the due
process of law and as per the applicable rules.”
11. On the basis of submissions, pleading of both the parties
following points emerge for my consideration:
a) At the time of issuing show cause notice whether the
Respondent being a Secretary of the Commission taken
permission from the Chairperson?...... No.
b) Whether the impugned order is passed without following
due process of law and is on merits? …… No.
12. Not a single document placed on record to show that
Secretary of the Commission taken permission from the
Chairperson before issuing show cause notice. Hence, answer
to the point No.1 is “No”.
13. Appellant in reply to the charges framed by the Respondent
by letter dated 19.07.2021 denied all the charges. Appellant
submitted that not a single Government servant as witness is
examined to prove all the charges. He submitted that for want of
sufficient staff, department directed him to do the work of several
other tables. Not only that he was holding the charge of several
departments. These facts are not disputed by the Respondent.
It is the case of the Appellant that because of over burden of
several departments, there was delay in some of the matters to
take steps. But that was not intentionally. His case is that same
happened because of overburden. Appellant submitted that in
this Commission for last 4-5 years more than 50% posts are
vacant and because of that the Respondent directed the
Appellant to work in several departments. He submitted that, for
want of sufficient infrastructure, some time it remained on his part
to complete the work in time. He submitted that he never went on
an unauthorized leave. He submitted that he has always made
an application for leave. There is no documentary proof on
record to show that Appellant had gone on leave without any
application and / or permission.
14. It is the case of the Appellant that because of Corona
period and he suffered from Corona and as there was burden on
him to do the work of more than one table, same time work was
postponed. For that purpose Para.22 of Appellant’s reply dated
19.07.2021 is relevant which reads thus:

“
“

15. Bare reading of Para 22 also shows that because of corona

it remained on the part of Appellant to complete his work within
time. It is also stated by the Appellant that he always obeyed the
direction issued by the higher authority. It is the case of the
Appellant that Respondent failed to keep on record any
documentary proof to show that Appellant failed to obey the
directions given by the Respondent. Therefore, it is difficult to
hold that charges No. 1 and 2 is proved against Appellant.
16. By impugned order dated 24.09.2021, Appellant demoted
to the post of Clerk. Not only that the Respondent failed to point
out the period for which he was demoted. It is to be noted that
as mentioned above the Apex Court specifically held that
administrative authority, who passed the order should clarify for
which period the employee is demoted. It is to be noted that as
mentioned above the Apex Court held that period of demotion
from higher post to lower post should be for specific period. Apart
from that in the present case for lack of staffs, it remained on the
part of the Appellant to complete his work some times within time.
For want of sufficient staff Appellant was directed to hold more
than two / three table work. Because of which it remained on his
part to complete the work within time. Same was not considered
by the Respondents.
17. In view of the above mentioned facts and the law declared
by the Apex Court, I am of the opinion that impugned order dated
24.09.2021 is required to be set aside.
18. Hence, following order is passed:
a) Appeal allowed and impugned order dated 24.09.2021
passed by the Respondent bearing No.
is set aside.

b) No order to cost.

Sd/-
(Justice K. K. Tated)
Chairperson