Apparel
Export Promotion Council Vs. A.K. Chopra [1999] INSC 7 (20 January 1999)
V.N.Khare
DR. ANAND, CJI :
Special
Leave granted. Does an action of the superior against a female employee which
is against moral sanctions and does not withstand test of decency and modesty
not amount to sexual harassment? Is physical contact with the female employee
an essential ingredient of such a charge? Does the allegation that the superior
tried to molest a female employee at the place of work, not constitute an act unbecoming
of good conduct and behaviour expected from the superior? These are some of the
questions besides the nature of approach expected from the law courts to cases
involving sexual harassment which come to the forefront and require our
consideration. Reference to the facts giving rise to the filing of the present
Appeal by Special Leave at this stage is appropriate : The respondent was
working as a Private Secretary to the Chairman of the Apparel Export Promotion
Council, the appellant herein. It was alleged that on 12.8.1988, he tried to
molest a woman employee of the Council, Miss X (name withheld by us) who was at
the relevant time working as a Clerk-cum-Typist. She was not competent or
trained to take dictations. The respondent, however, insisted that she go with
him to the Business Centre at Taj Palace Hotel for taking dictation from the
Chairman and type out the matter. Under the pressure of the respondent, she
went to take the dictation from the Chairman. While Miss X was waiting for the
Director in the room, the respondent tried to sit too close to her and despite
her objection did not give up his objectionable behaviour. She later on took
dictation from the Director.
The
respondent told her to type it at the Business Centre of the Taj Palace Hotel,
which is located in the Basement of the Hotel. He offered to help her so that
her typing was not found fault with by the Director. He volunteered to show her
the Business Centre for getting the matter typed and taking advantage of the
isolated place, again tried to sit close to her and touch her despite her
objections. The draft typed matter was corrected by Director (Finance) who
asked Miss X to retype the same. The respondent again went with her to the
Business Centre and repeated his overtures.
Miss X
told the respondent that she would leave the place if he continued to behave
like that. The respondent did not stop. Though he went out from the Business
Centre for a while, he again came back and resumed his objectionable acts.
According to Miss X, the respondent had tried to molest her physically in the
lift also while coming to the basement but she saved herself by pressing the
emergency button, which made the door of the lift to open. On the next day,
that is on 16th August,
1988 Miss X was unable
to meet the Director (Personnel) for lodging her complaint against the
respondent as he was busy. She succeeded in meeting him only on 17th August, 1988 and apart from narrating the whole
incident to him orally submitted a written complaint also. The respondent was
placed under suspension vide an order dated 18th August, 1988. A charge-sheet was served on him to which he gave a reply
denying the allegations and asserting that the allegations were imaginary and
motivated. Shri J.D. Giri, a Director of the Council, was appointed as an
Enquiry Officer to enquire into the charges framed against the respondent. On
behalf of the management with a view to prove the charges as many as six
witnesses were examined including Miss X. The respondent also examined seven
witnesses. The Enquiry Officer after considering the documentary and oral
evidence and the circumstances of the case arrived at the conclusion that the
respondent had acted against moral sanctions and that his acts against Miss X
did not withstand the test of decency and modesty. He, therefore, held the
charges levelled against the respondent as proved. The Enquiry Officer in his
report recorded the following, amongst other, findings : 8.1. Intentions of Shri
A.K. Chopra were ostensibly manifested in his actions and behaviour; Despite
reprimands from Miss X he continued to act against moral sanctions; 8.2.
Dictation and subsequent typing of the matter provided Shri A.K. Chopra
necessary opportunity to take Miss X to the Business Centre a secluded place.
Privacy
in the Business Centre room made his ulterior motive explicit and clear; 8.3.
Any other conclusion on technical niceties which Shri A.K. Chopra tried to
purport did not withstand the test of decency and modesty.
The
Enquiry Officer concluded that Miss X was molested by the respondent at Taj
Palace Hotel on 12th
August, 1988 and that
the respondent had tried to touch her person in the Business Centre with
ulterior motives despite reprimands by her. The Disciplinary Authority agreeing
with the report of the Enquiry Officer, imposed the penalty of removing him
from service with immediate effect on 28th June, 1989.
Aggrieved,
by an order of removal from service, the respondent filed a departmental appeal
before the Staff Committee of the appellant. It appears that there was some
difference of opinion between the Members of the Staff Committee and the
Chairman of the Staff Committee during the hearing, but before any decision
could be arrived at by the Staff Committee, the respondent, on the basis of
some unconfirmed minutes of the Staff Committee meeting, filed a Writ Petition
in the High Court inter alia challenging his removal from service. On January 30, 1992, the Writ Petition was allowed and
respondent Nos. 1 and 3, therein, were directed to act upon the decision of the
Staff Committee, assuming as if the decision, as alleged, had been taken at the
34th Meeting of the Staff Committee on 25th July, 1990. The appellant challenged the
judgment and order of the High Court dated 30th January, 1992, through Special Leave Petition
(Civil) No.3204 of 1992 in this Court. While setting aside the judgment and
order of the High Court dated 30th January, 1992, a Division Bench of this Court opined :
We
have been taken through the proceedings of the meeting starting from 33rd meeting
upto 38th meeting by both the learned Counsel appearing for the respective
parties.
Considering
the same it appears to us that the alleged decision taken on the said Agenda
No.5 in the 33rd and 34th meeting is in dispute and final decision on the same
has not yet been taken and the alleged resolution on the said Item No.5 still
awaits ratification. In that view of the matter, the High Court was wrong in
deciding the disputed question of fact in favour of Respondent No.1. We,
therefore set aside the impugned order of the Delhi High Court as according to
us the final decision on the resolution taken on the said Agenda No.5 has not
yet been finally ratified.
We are
not inclined to consider the other questions sought to be raised in this appeal
and the said questions are kept open. In view of the pendency of the matter for
a long time, we direct the appellantcompany to convene the meeting of Staff
Committee as early as practicable but not exceeding two months from today so
that the question of ratification of the resolution on the said Agenda No.5
taken in the meeting of the Staff Committee is finally decided.
Pursuant
to the above directions, the Staff Committee met again and considered the
entire issue and came to the conclusion that the order passed by the Director
General terminating the services of the respondent on 28th June, 1989 was legal, proper and valid. The
appeal was dismissed and the removal of the respondent for causing sexual
harassment to Miss X was upheld. The respondent, thereupon, filed Writ Petition
No.352 of 1995 in the High Court, challenging his removal from service as well
as the decision of the Staff Committee dismissing his departmental appeal. The
learned Single Judge allowing the Writ Petition opined that ... the petitioner
tried to molest and not that the petitioner had in fact molested the
complainant.
The
learned Single Judge, therefore, disposed of the Writ Petition with a direction
that the respondent be reinstated in service but that he would not be entitled
to receive any back wages. The appellant was directed to consider the period
between the date of removal of the respondent from service and the date of
reinstatement as the period spent on duty and to give him consequential
promotion and all other benefits. It was, however, directed that the respondent
be posted in any other office outside Delhi, at least for a period of two years. The appellant being aggrieved by
the order of reinstatement filed Letters Patent Appeal No.27 of 1997 before the
Division Bench of the High Court. The respondent also filed Letters Patent
Appeal No.79 of 1997 claiming back wages and appropriate posting. Some of the
lady employees of the appellant on coming to know about the judgment of the
learned Single Judge, directing the reinstatement of the respondent, felt
agitated and filed an application seeking intervention in the pending L.P.A.
The Division Bench vide judgment and order dated 15th July, 1997, dismissed the L.P.A. filed by the appellant against the
reinstatement of the respondent. The Division Bench agreed with the findings
recorded by the learned Single Judge that the respondent had tried to molest
and that he had not actually molested Miss X and that he had not managed to
make the slightest physical contact with the lady and went on to hold that such
an act of the respondent was not a sufficient ground for his dismissal from
service.
Commenting
upon the evidence, the Division Bench observed :
We
have been taken in detail through the evidence/deposition of Miss X. No part of
that evidence discloses that A.K. Chopra even managed to make the slightest
physical contact with the lady. The entire deposition relates that A.K. Chopra
tried to touch her. As we have said that no attempts made, allegedly by A.K.
Chopra,
succeeded in making physical contact with Miss X, even in the narrow confines
of a Hotel lift. To our mind, on such evidence as that was produced before the
Enquiry Officer, it is not even possible to come to a conclusion that there is
an attempt to molest as there have been no physical contact. There being no
physical contact between A.K. Chopra and Miss X, there cannot be any attempt to
tried to molest on the part of A.K. Chopra. (Emphasis ours) Aggrieved by the
judgment of the Division Bench, the employer- appellant has filed this appeal
by special leave.
We
have heard learned counsel for the parties and perused the record. The Enquiry
Officer has found the charges established against the respondent. He has
concluded that the respondent was guilty of molestation and had tried to physically
assault Miss X. The findings recorded by the Enquiry Officer and the
Disciplinary Authority had been confirmed by the Appellate Authority (the Staff
Committee) which admittedly had co-extensive powers to re-appreciate the
evidence as regards the guilt as well as about the nature of punishment to be
imposed on the respondent. The Staff Committee while dealing with the question
of punishment has observed : Shri Chopra has also mentioned in his appeal that
the penalty on him was harsh and disproportionate to the charge levelled
against him. On this, the Staff Committee observed that no lenient view would
be justified in a case of molestation of a woman employee when the charge was
fully proved. Any lenient action in such a case would have a demoralizing effect
on the working women. The Staff Committee, therefore, did not accept the plea
of Shri Chopra that a lenient view be taken in his case.
The
learned Single Judge, did not doubt the correctness of the occurrence. He did
not disbelieve the complainant. On a re- appreciation of the evidence on the
record, the learned Single Judge, however, drew his own inference and found
that the respondent had tried to molest but since he had not actually molested
the complainant, therefore, the action of the respondent did not warrant
removal from service. The learned Single Judge while directing the
reinstatement of the respondent observed : 15. In the totality of facts and
circumstances, ends of justice would meet if the petitioner is reinstated in
service but he would not be entitled to any back wages. The Council shall
consider this period as on duty and would give him consequential promotion to
the petitioner. He shall be entitled to all benefits except back wages. The
petitioner shall be posted in any other office outside Delhi, at least for a period of two
years." (Emphasis ours) The Division Bench of the High Court also while
dismissing the L.P.A. filed by the appellant did not doubt the correctness of
the occurrence. It also concluded that since the respondent had not actually
molested Miss X and had only tried to assault her and had not managed to make
any physical contact with her, a case of his removal from service was not made
out. Both the learned Single Judge and the Division Bench did not doubt the
correctness of the following facts : 1. That Miss X was a subordinate employee
while the respondent was the superior officer in the organization; 2. That Miss
X was not qualified to take any dictation and had so told the respondent; 3.
That the respondent pressurized her to come with him to Taj Palace Hotel to
take dictation despite her protestation, with an ulterior design; 4. That the
respondent taking advantage of his position, tried to molest Miss X and in
spite of her protestation, continued with his activities which were against the
moral sanctions and did not withstand the test of decency and modesty; 5. That
the respondent tried to sit too close to Miss X with ulterior motives and all
along Miss X kept reprimanding him but to no avail; 6. That the respondent was
repeating his implicit unwelcome sexual advances and Miss X told him that if he
continued to behave in that fashion, she would leave that place; 7. That the
respondent acted in a manner which demonstrated unwelcome sexual advances, both
directly and by implication; 8. That action of the respondent created an
intimidated and hostile working environment in so far as Miss X is concerned.
The
above facts are borne out from the evidence on the record and on the basis of
these facts, the departmental authorities keeping in view the fact that the
actions of the respondent were considered to be subversive of good discipline
and not conducive to proper working in the appellant Organization where there
were a number of female employees, took action against the respondent and
removed him from service. The High Court appears to have over-looked the
settled position that in departmental proceedings, the Disciplinary Authority
is the sole Judge of facts and in case an appeal is presented to the Appellate
Authority, the Appellate Authority has also the power/and jurisdiction to
re-appreciate the evidence and come to its own conclusion, on facts, being the
sole fact finding authorities. Once findings of fact, based on appreciation of
evidence are recorded, the High Court in Writ Jurisdiction may not normally
interfere with those factual findings unless it finds that the recorded
findings were based either on no evidence or that the findings were wholly
perverse and/or legally untenable. The adequacy or inadequacy of the evidence
is not permitted to be canvassed before the High Court. Since, the High Court
does not sit as an Appellate Authority, over the factual findings recorded
during departmental proceedings, while exercising the power of judicial review,
the High Court cannot normally speaking substitute its own conclusion, with
regard to the guilt of the delinquent, for that of the departmental
authorities. Even insofar as imposition of penalty or punishment is concerned,
unless the punishment or penalty imposed by the Disciplinary or the
Departmental Appellate Authority, is either impermissible or such that it
shocks the conscience of the High Court, it should not normally substitute its
own opinion and impose some other punishment or penalty. Both the learned
Single Judge and the Division Bench of the High Court, it appears, ignored the
well-settled principle that even though Judicial Review of administrative
action must remain flexible and its dimension not closed, yet the Court in
exercise of the power of judicial review is not concerned with the correctness
of the findings of fact on the basis of which the orders are made so long as
those findings are reasonably supported by evidence and have been arrived at
through proceedings which cannot be faulted with for procedural illegalities or
irregularities which vitiate the process by which the decision was arrived at.
Judicial Review, it must be remembered, is directed not against the decision,
but is confined to the examination of the decision-making process.
Lord
Haltom in Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER
141, observed : The purpose of judicial review is to ensure that the individual
receives fair treatment, and not to ensure that the authority, after according
fair treatment, reaches, on a matter which it is authorized by law to decide
for itself, a conclusion which is correct in the eyes of the court.
Judicial
Review, not being an appeal from a decision, but a review of the manner in
which the decision was arrived at, the Court while exercising the power of
Judicial Review must remain conscious of the fact that if the decision has been
arrived at by the Administrative Authority after following the principles
established by law and the rules of natural justice and the individual has received
a fair treatment to meet the case against him, the Court cannot substitute its
judgment for that of the Administrative Authority on a matter which fell
squarely within the sphere of jurisdiction of that authority. It is useful to
note the following observations of this Court in Union of India v.
Sardar
Bahadur, (1972) 4 SCC 618 : Where there are some relevant materials which the
authority has accepted and which materials may reasonably support the
conclusion that the officer is guilty, it is not the function of the High Court
exercising its jurisdiction under Article 226 to review the materials and to
arrive at an independent finding on the materials. If the enquiry has been
properly held the question of adequacy or reliability of the evidence cannot be
canvassed before the High Court.
After
a detailed review of the law on the subject, this Court while dealing with the
jurisdiction of the High Court or Tribunal to interfere with the disciplinary
matters and punishment in Union of India v. Parma Nanda, (1989) 2 SCC 177, opined
: We must unequivocally state that the jurisdiction of the Tribunal to
interfere with the disciplinary matters or punishment cannot be equated with an
appellate jurisdiction. The Tribunal cannot interfere with the findings of the
Enquiry Officer or Competent Authority where they are not arbitrary or utterly
perverse. It is appropriate to remember that the power to impose penalty on a
delinquent officer is conferred on the competent authority either by an Act of
Legislature or Rules made under the proviso to Article 309 of the Constitution.
If there has been an enquiry consistent with the rules and in accordance with
principles of natural justice what punishment would meet the ends of justice is
a matter of exclusively within the jurisdiction of the competent authority. If
the penalty can lawfully be imposed and is imposed on the proved misconduct,
the Tribunal has no power to substitute its own discretion for that of the
authority.
In
B.C. Chaturvedi v. Union of India, (1995 ) 6 SCC 749, this Court opined : The
disciplinary authority is the sole judge of facts. Where appeal is presented,
the appellate authority has coextensive power to reappreciate them evidence or
the nature of punishment. In a Disciplinary Enquiry, the strict proof of legal
evidence and findings on that evidence are not relevant. Adequacy of evidence
or reliability of evidence cannot be permitted to be canvassed before the
Court/Tribunal.
Further
it was held :
A
review of the above legal position would establish that the disciplinary
authority, and on appeal the appellate authority, being fact-finding
authorities have exclusive power to consider the evidence with a view to
maintain discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or gravity of the
misconduct. The High Court/Tribunal, while exercising the power of judicial
review, cannot normally substitute its own conclusion on penalty and impose
some other penalty. If the punishment imposed by the disciplinary authority or
the appellate authority shocks the conscience of the High Court/Tribunal, it
would appropriately mould the relief, either directing the
disciplinary/appellate authority to reconsider the penalty imposed, or to
shorten the litigation, it may itself, in exceptional and rare cases, impose
appropriate punishment with cogent reasons in support thereof.
(
Emphasis supplied) Again in Government of Tamil Nadu and another v. A. Rajapandian,
1995(1) SCC 216, this Court opined : It has been authoritatively settled by
string of authorities of this Court that the Administrative Tribunal cannot sit
as a court of appeal over a decision based on the findings of the inquiring
authority in disciplinary proceedings. Where there is some relevant material
which the disciplinary authority has accepted and which material reasonably
supports the conclusion reached by the disciplinary authority, it is not the
function of the Administrative Tribunal to review the same and reach different
finding than that of the disciplinary authority. The Administrative Tribunal,
in this case, has found no fault with the proceedings held by the inquiring
authority. It has quashed the dismissal order by re-appreciating the evidence
and reaching a finding different than that of the inquiring authority.
(Emphasis ours) In the established facts and circumstances of this case, we
have no hesitation to hold, at the outset, that both the learned Single Judge
and the Division Bench of the High Court fell into patent error in interfering
with findings of fact recorded by the departmental authorities and interfering
with the quantum of punishment, as if the High Court was sitting in appellate
jurisdiction. From the judgments of the learned Single Judge as well as the
Division Bench, it is quite obvious that the findings with regard to an
unbecoming act committed by the respondent, as found by the Departmental
Authorities, were not found fault with even on re-appreciation of evidence. The
High Court did not find that the occurrence as alleged by the complainant had
not taken place. Neither the learned Single Judge nor the Division Bench found
that findings recorded by the Enquiry Officer or the Departmental Appellate
Authority were either arbitrary or even perverse. As a matter of fact, the High
Court found no fault whatsoever with the conduct of Enquiry.
The
direction of the learned Single Judge to the effect that the respondent was not
entitled to back wages and was to be posted outside the city for at least two
years, which was upheld by the Division Bench, itself demonstrates that the
High Court believed the complainants case fully for otherwise neither the
withholding of back wages nor a direction to post the respondent outside the
city for at least two years was necessary. The High Court in our opinion fell
in error in interfering with the punishment, which could be lawfully imposed by
the departmental authorities on the respondent for his proven misconduct. To
hold that since the respondent had not actually molested Miss X and that he had
only tried to molest her and had not managed to make physical contact with her,
the punishment of removal from service was not justified was erroneous. The
High Court should not have substituted its own discretion for that of the
authority. What punishment was required to be imposed, in the facts and
circumstances of the case, was a matter which fell exclusively within the
jurisdiction of the competent authority and did not warrant any interference by
the High Court. The entire approach of the High Court has been faulty. The
impugned order of the High Court cannot be sustained on this ground alone. But
there is another aspect of the case which is fundamental and goes to the root
of the case and concerns the approach of the Court while dealing with cases of
sexual harassment at the place of work of female employees. The High Court was
examining disciplinary proceedings against the respondent and was not dealing
with criminal trial of the respondent.
The
High Court did not find that there was no evidence at all of any kind of
molestation or assault on the person of Miss X. It appears that the High Court
re-appreciated the evidence while exercising power of judicial review and gave
meaning to the expression molestation as if it was dealing with a finding in a
criminal trial. Miss X had used the expression molestation in her complaint in
a general sense and during her evidence she has explained what she meant.
Assuming for the sake of argument that the respondent did not manage to
establish any physical contact with Miss X, though the statement of management
witness Suba Singh shows that the respondent had put his hand on the hand of
Miss X when he surprised them in the Business Centre, it did not mean that the
respondent had not made any objectionable overtures with sexual overtones.
From
the entire tenor of the cross-examination to which Miss X was subjected to by
the respondent, running into about 17 typed pages and containing more than one
hundred & forty questions and answers in cross-examinations, it appears
that the effort of respondent was only to play with the use of the expressions
molestation and physical assault by her and confuse her. It was not the
dictionary meaning of the word molestation or physical assault which was
relevant.
The
statement of Miss X before the Enquiry Officer as well as in her complaint
unambiguously conveyed in no uncertain terms as to what her complaint was. The
entire episode reveals that the respondent had harassed, pestered and subjected
Miss X, by a conduct which is against moral sanctions and which did not
withstand the test of decency and modesty and which projected unwelcome sexual
advances.
Such
an action on the part of the respondent would be squarely covered by the term
sexual harassment. The following statement made by Miss X at the enquiry : When
I was there in the Chairmans room I told Mr. Chopra that this was wrong and he
should not do such things. He tried to persuade me by talking.
......................... I tried to type the material but there were so many
mistakes.
He
helped me in typing. There he tried to blackmail me.
.................
He tried to sit with me. In between he tried to touch
me............................ Mr. Chopra again took me to the Business Centre.
Thereafter again he tried. I told him I will go out if he does like this. Then
he went out. Again he came back. In between he tried.
(Emphasis
supplied) unmistakably shows that the conduct of the respondent constituted an
act unbecoming of good behaviour, expected from the superior officer.
Repeatedly, did Miss X state before the Enquiry Officer that the respondent
tried to sit close to her and touch her and that she reprimanded him by asking
that he should not do these things. The statement of Miss Rama Kanwar, the
management witness to the effect that when on 16th August she saw Miss X and
asked her the reason for being upset, Miss X kept on weeping and told her she
could not tell being unmarried, she could not explain what had happened to her.
The material on the record, thus, clearly establishes an unwelcome sexually
determined behaviour on the part of the respondent against Miss X which was
also an attempt to outrage her modesty. Any action or gesture, whether directly
or by implication, aims at or has the tendency to outrage the modesty of a
female employee, must fall under the general concept of the definition of
sexual harassment.
The
evidence on the record clearly establishes that the respondent caused sexual
harassment to Miss X, taking advantage of his superior position in the Council.
Against the growing social menace of sexual harassment of women at the work
place, a three Judge Bench of this Court by a rather innovative judicial law
making process issued certain guidelines in Vishaka v. State of Rajasthan,
(1997) 6 SCC 241, after taking note of the fact that the present civil and
penal laws in the country do not adequately provide for specific protection of
woman from sexual harassment at places of work and that enactment of such a
legislation would take a considerable time. In Vishakas case (supra), a definition
of sexual harassment was suggested. Verma, J., (as the former Chief Justice
then was), speaking for the three-Judge Bench opined : 2. Definition : For this
purpose, sexual harassment includes such unwelcome sexually determined behaviour
(whether directly or by implication) as : (a) physical contact and advances;
(b) a demand or request for sexual favours; (c) sexually-coloured remarks;
(d) showing
pornography; (e) any other unwelcome physical, verbal or non- verbal conduct of
sexual nature.
Where any
of these acts is committed in circumstances whereunder the victim of such
conduct has a reasonable apprehension that in relation to the victims
employment or work whether she is drawing salary, or honorarium or voluntary,
whether in government, public or private enterprise such conduct can be
humiliating and may constitute a health and safety problem. It is
discriminatory for instance when the woman has reasonable grounds to believe
that her objection would disadvantage her in connection with her employment or
work including recruiting or promotion or when it creates a hostile work
environment. Adverse consequences might be visited if the victim does not
consent to the conduct in question or raises any objection thereto.
An
analysis of the above definition, shows that sexual harassment is a form of sex
discrimination projected through unwelcome sexual advances, request for sexual favours
and other verbal or physical conduct with sexual overtones, whether directly or
by implication, particularly when submission to or rejection of such a conduct
by the female employee was capable of being used for effecting the employment
of the female employee and unreasonably interfering with her work performance
and had the effect of creating an intimidating or hostile working environment
for her. There is no gainsaying that each incident of sexual harassment, at the
place of work, results in violation of the Fundamental Right to Gender Equality
and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed
by the Constitution of India. As early as in 1993 at the ILO Seminar held at
Manila, it was recognized that sexual harassment of woman at the work place was
a form of gender discrimination against woman. In our opinion, the contents of
the fundamental rights guaranteed in our Constitution are of sufficient
amplitude to encompass all facets of gender equality, including prevention of
sexual harassment and abuse and the courts are under a constitutional
obligation to protect and preserve those fundamental rights. That sexual
harassment of a female at the place of work is incompatible with the dignity
and honour of a female and needs to be eliminated and that there can be no
compromise with such violations, admits of no debate. The message of international
instruments such as the Convention on the Elimination of All Forms of
Discrimination Against Women, 1979 (CEDAW) and the Beijing Declaration which
directs all State parties to take appropriate measures to prevent
discrimination of all forms against women besides taking steps to protect the honour
and dignity of women is loud and clear. The International Covenant on Economic,
Social and Cultural Rights contains several provisions particularly important
for women.
Article
7 recognises her right to fair conditions of work and reflects that women shall
not be subjected to sexual harassment at the place of work which may vitiate
working environment. These international instruments cast an obligation on the Indian State to gender sensitise its laws and the Courts are under an
obligation to see that the message of the international instruments is not
allowed to be drowned. This Court has in numerous cases emphasised that while
discussing constitutional requirements, court and counsel must never forget the
core principle embodied in the International Conventions and Instruments and as
far as possible give effect to the principles contained in those international
instruments. The Courts are under an obligation to give due regard to
International Conventions and Norms for construing domestic laws more so when
there is no inconsistency between them and there is a void in domestic law.
[See with advantage Prem Sankar v. Delhi Administration, AIR 1980 SC 1535; Mackninnon
Mackenzie and Co. v. Audrey D Costa, (1987) 2 SCC 469 JT 1987 (2) SC 34; Sheela
Barse v. Secretary, Childrens Aid Society, (1987) 3 SCC 50 at p.54; Vishaka
& others v. State of Rajasthan & Ors., JT 1997 (7) SC 392; Peoples
Union for Civil Liberties v. Union of India & Anr., JT 1997 (2) SC 311 and
D.K. Basu & Anr. v. State of West Bengal & Anr., (1997) 1 SCC 416 at
p.438]. In cases involving violation of human rights, the Courts must for ever
remain alive to the international instruments and conventions and apply the
same to a given case when there is no inconsistency between the international
norms and the domestic law occupying the field. In the instant case, the High
Court appears to have totally ignored the intent and content of the
International Conventions and Norms while dealing with the case. The observations
made by the High Court to the effect that since the respondent did not actually
molest Miss X but only tried to molest her and, therefore, his removal from
service was not warranted rebel against realism and lose their sanctity and
credibility. In the instant case, the behaviour of respondent did not cease to
be outrageous for want of an actual assault or touch by the superior officer.
In a
case involving charge of sexual harassment or attempt to sexually molest, the
courts are required to examine the broader probabilities of a case and not get
swayed by insignificant discrepancies or narrow technicalities or dictionary
meaning of the expression molestation. They must examine the entire material to
determine the genuineness of the complaint. The statement of the victim must be
appreciated in the background of the entire case.
Where
the evidence of the victim inspires confidence, as is the position in the
instant case, the courts are obliged to rely on it. Such cases are required to
be dealt with great sensitivity. Sympathy in such cases in favour of the
superior officer is wholly misplaced and mercy has no relevance. The High Court
overlooked the ground realities and ignored the fact that the conduct of the
respondent against his junior female employee, Miss X, was wholly against moral
sanctions, decency and was offensive to her modesty. Reduction of punishment in
a case like this is bound to have demoralizing effect on the women employees
and is a retrograde step. There was no justification for the High Court to
interfere with the punishment imposed by the departmental authorities. The act
of the respondent was unbecoming of good conduct and behaviour expected from a
superior officer and undoubtedly amounted to sexual harassment of Miss X and
the punishment imposed by the appellant, was, thus, commensurate with the
gravity of his objectionable behaviour and did not warrant any interference by
the High Court in exercise of its power of judicial review. At the conclusion
of the hearing, learned counsel for the respondent submitted that the
respondent was repentant of his actions and that he tenders an unqualified
apology and that he was willing to also go and to apologize to Miss X. We are afraid,
it is too late in the day to show any sympathy to the respondent in such a
case. Any lenient action in such a case is bound to have demoralizing effect on
working women. Sympathy in such cases is uncalled for and mercy is misplaced.
Thus, for what we have said above the impugned order of the High Court is set aside
and the punishment as imposed by the Disciplinary Authority and upheld by the
Departmental Appellate Authority of removal of the respondent from service is
upheld and restored. The, appeals, thus succeed and are allowed. We, however,
make no order as to costs.
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