D.S. Grewal Vs. Vimi
Joshi & Ors.  INSC 2196 (17 December 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELALTE JURISDICTION CIVIL APPEAL NO. 7355 2008 (Arising out
of SLP (C) No. 10044 of 2006 D.S. Grewal ... Appellant Versus Vimmi Joshi and
others ... Respondents WITH
CIVIL APPEAL NO. 7356 OF 2008 (Arising out of SLP (C) No. 10046 of 2006
Chairman School Managing Committee and others ... Appellants Versus Vimi Joshi
and others ... Respondents AND CIVIL APPEAL NO. 7357 OF 2008 (Arising out of
SLP (C) No. 10143 of 2006 Hitendra Bahadur ... Appellant Versus Vimi Joshi and
others ... Respondents
S.B. SINHA, J.
three appeals arise out of a common judgment and order dated 3rd May, 2006
passed by a Division Bench of the High Court of Uttaranchal at Nainital in Writ
Petition No. 398 (S/B) of 2004.
Pithoragarh where an army unit is situated, an Army Public School known as Gen.
B.C. Joshi Army Public School is being run by a society known as Army Welfare
(Brig. D.S. Grewal, hereinafter referred to as `Grewal') in Civil appeal
arising out of SLP (C) No.10044 of 2006 is the Chairman of the School Managing
Committee while Col. Hitendra Bahadur appellant in Civil Appeal arising out of.
SLP (C) No.10143 of 2006 is the Vice Chairman thereof. Chairman, School
Managing Committee and others are the appellants in Civil Appeal arising out of
SLP (C) No.10046 of 2006.
respondent Vimmi Joshi applied for and was appointed as a Trained Graduate Teacher
in Gen. B.C. Joshi Army Public School. She was later on appointed as Post
Graduate Teacher (Mathematics). She was confirmed in the said post. She worked
as an officiating Principal from 10.2.2003 to 10.8.2003. She was appointed as
the Principal of the school from 10.2.2004.
Hitendra Bahadur was a Deputy Commander, 69 Mountain Brigade. He, at the
relevant time, was posted at Pithoragarh. While he was stationed at Sonamarg in
connection with providing security cover to pilgrims of `Amarnath Yatra', he
wrote a letter to the first respondent, the contents whereof read as under :-
"My dearest Vimmi, Allow me to confess to you that I have fallen in love
with you. What a man needs in a woman ? Love, trust and faith, when I look deep
into your eyes I find there in abundance. No where in my life I have ever come
across a woman where intelligence, appearance, maturity and beauty is so well
awarded in one single person as in you. You are no doubt, a very charming and
gorgeous woman, beautiful and attractive. You are very magnetic. Always
elegantly drew-up, you look very stylist and fashionable with slim and slender
body. You appear absolutely fit, intelligent, witty, confident, compassionate
and very much in control, you are truly a role model for all young people at
you place and most darling friend to me. I adore you from the core of my heart
and always value our friendship. You are precious and priceless. May I extend
my hands towards you and hold your hands tightly and ask you to lean on my
shoulder when ever you need me. It will be a great pleasure.
3 With lots of love.
Hitendra Bahadur used to make advances towards respondent No.1. She reported
the matter to Grewal. Her father also met him. Allegedly he was abused by Grewal.
or about 12th October, 2004 Grewal addressed a letter to respondent No.1 with
respect to her allegations against Hitendra Bahadur.
She was allegedly
asked to give her complaint in writing stating :- "1. I am writing to you
regarding the allegation made by you against Colonel Hitendra Bahadur, SM, the
Deputy Commander of 69 Mountain Brigade.
2. On 27th Sep 04,
during the interaction with me in my office at your request, you apprised me
that the Deputy Commander has written a letter to you. The letter was shown to
me and I observed that the portion at the bottom was torn and there was no name
or signature. I asked you as to why the portion was torn but no answer was
3. On 09 Oct 04, your
father came to my office to meet me. He also made an allegation against the
Deputy Commander. You were then asked by Maj Pankaj Bhola, the BM of 69,
Mountain Brigade to meet me in my office. The matter was 4 discussed and I
directed you to forward the allegation in writing to me by 09 Oct. 04.
4. Till date, the
allegation has not been received by me. Hence, I will not take cognizance of
or about 25th October, 2004 two anonymous complaints were received by the
Managing Committee from the Head Quarters as against respondent No.1. By a
memorandum dated 25th October, 2004 she was asked to give her comments on the
said allegations. She made her comments by her letter dated 27th October, 2004.
However, her services were terminated by an order dated 4th December, 2004
stating :- "1. Refer to this Headquarters letter number
620401/1/APS/Sigs-4 dated 30th Sep 2004 and Article 186 (f) of AWES Rules and
Regulations Vol.-I, for Army Schools/Army Public School (Oct 2003 Edition).
2. SMC regrets to
inform you that your services are no more required, hence your services are
3. A cheque bearing
machine number 176096 dated 04th Dec 04 for Rs.14,200.00 (Rupees fourteen
thousand two hundred only) towards one month salary is enclosed as per the
over all documents and other important correspondence held on your charge will
be carried out with Mr. Kunwar Pratap Singh (Senior most PCT) of Gen BC Joshi
5 Sd/- ( D.S. Grewal
writ petition was filed by her questioning the legality of the said order of
termination alleging sexual harassment by Hitendra Bahadur as one of the
grounds, wherein an interim order was passed on 3.5.2006. The said interim
order is impugned in these appeals.
the meanwhile a purported enquiry was conducted. Respondent No.1 allegedly
participated therein. By a report dated 20th January, 2005 it was found to be
not a case of sexual harassment. Hitendra Bahadur was directed to be counseled.
the High Court appellants filed their counter-affidavits inter alia contending
:- (i) That the order of termination has nothing to do with the alleged sexual
6 (ii) Writing a
letter was merely appreciable in nature and by reason thereof no sexual
harassment was caused by Hitendra Bahadur.
Bahadur has nothing to do with the Management of the School and that the letter
having been sent from Sonamarg cannot be said to have any sexual harassment at
the work place of the first respondent.
reason of the impugned order, however, the Division Bench found that it was a
clear cut case of sexual harassment of the writ petitioner- respondent No.1
herein. It was, therefore, directed :- "Therefore, the Secretary, Ministry
of Defence, Government of India and the Chief of the Army Staff are directed to
take disciplinary action against these two officers, as the case of sexual
harassment is evident from the contents of the letter and the admission by both
the officers followed by the termination of the petitioner.
7. We are passing
this order in view of the law laid down by the Hon'ble Apex Court in the case
of "Vishakha & others vs. State of Rajasthan reported in (1997) 6 SCC
8. The progress of
the disciplinary action so taken in such a serious manner which may even
warrant the court martial proceedings of these two 7 officers shall be
submitted before this Court within a period of two months from the date of
production of the certified copy of this order."
however, we embark upon the respective contentions of the parties we may notice
that a review application was filed before the High Court which was also
dismissed by order dated 18th May, 2006. The said order of the High Court
refusing to review its earlier order dated 3rd May, 2006 is not in question in
may furthermore place on record that a first information report was also lodged
against respondent No.1 by the school management alleging financial
irregularities. After investigation carried out in this behalf a final report
was submitted exonerating her and the report has been accepted by the Chief
Judicial Magistrate, Pithoragarh by an order dated 13th February, 2006.
K.K. Rai and Mr. Chetan Sharma, learned senior counsel appearing on behalf of
the appellants would submit :- (1) That the High Court should not have arrived
at its finding that Col Hitendra Bahadur had caused sexual harassment to
respondent 8 No.1, so as to pass a final judgment on the subject despite
directing initiation of a disciplinary proceeding against them.
(2) As first
respondent was appointed only on probation for one year and during the
probation period her services could be terminated by giving one month's notice
or salary in lieu thereof without assigning any reason by the appointing
authority, no case has been made out to pass an interim order of the nature as
has been done by the High Court.
(3) As despite
opportunities given she did not make any complaint in writing, cognizance of
the said letter dated 22nd July, 2004 of Col Hitendra Bahadur was rightly not
taken by Grewal.
(4) As Hitendra
Bahadur had already undergone an enquiry, a direction for second enquiry was
S. Janani, learned counsel appearing on behalf of the writ
petitioner-respondent No.1 on the other hand would contend :- (1) That
admittedly the letter was written by the Vice Chairman of the School Managing
Committee to respondent No.1, Vimi Joshi who was his subordinate ;
9 (2) As the Vice
Chairman of the Managing Committee of the School, he was in a commanding
(3) As the matter was
brought to the notice of the Chairman of the School Managing Committee, no
further complaint in writing was required to be made.
(4) The circumstances
attending to the case clearly show that the termination of respondent No.1's
services was mala fide and/or otherwise bad in law.
the writ petition was filed by respondent No.1 which is still pending. In our
opinion, it would, thus, be not proper for us to enter into merit of the matter.
indisputably, in terms of the judgment of this Court in Vishakha and others
(supra) certain guidelines have been laid down by this Court till an
appropriate legislation is made in this behalf, some of them being, -
disciplinary action, complaint mechanism and complaints committee. These are as
under :- "6. Disciplinary action:
Where such conduct
amounts to misconduct in employment as defined by the relevant service rules,
appropriate disciplinary action 10 should be initiated by the employer in
accordance with those rules.
Whether or not such
conduct constitutes an offence under law or a breach of the service rules, an
appropriate complaint mechanism should be created in the employer's
organization for redress of the complaint made by the victim. Such complaint
mechanism should ensure time-bound treatment of complaints.
mechanism, referred to in (6) above, should be adequate to provide, where
necessary, a Complaints Committee, a special counsellor or other support
service, including the maintenance of confidentiality.
Committee should be headed by a woman and not less than half of its members
should be women. Further, to prevent the possibility of any undue pressure or
influence from senior levels, such Complaints Committee should involve a third
party, either NGO or other body who is familiar with the issue of sexual
Committee must make an annual report to the Government Department concerned of
the complaints and action taken by them.
The employers and
person-in-charge will also report on the compliance with the aforesaid
guidelines including on the reports of the Complaints Committee to the
The Court furthermore
defined `sexual harassment' to include :- 11 "For this purpose, sexual
harassment includes such unwelcome sexually determined behaviour (whether
directly or by implication) as:
(a) physical contact
(b) a demand or
request for sexual favours;
(e) any other
unwelcome physical, verbal or non-verbal conduct of sexual nature.
The Legislature too
have keeping in mind the abovenoted guidelines from Vishakha (supra) recently
drafted the Protection of Women against Sexual Harassment at Workplace Bill,
2007. The Bill is to provide `for the prevention and redressal of sexual
harassment of women at workplace and for matters connected therewith or
incidental thereto'. The draft law provides for consideration of a mandatory
committee to hear complaints of sexual harassment. It also stipulates the
procedures for setting up of these committees. If the complaint is found to be
true, the draft law provides for monetary compensation. It also stipulates a
time period for completing the enquiry and for employers to take action against
the accused. We are aware that the Bill has not till yet been enacted by the
Parliament. We cite the Bill only to show that the law makers too have accepted
the directions and guidelines which had been laid down by this Court.
No.1 was a working lady. She was working as the Principal of the School. She
was drawing a salary. It is a public enterprise.
She felt humiliated
not only by reason of the said letter; according to her, Hitendra Bahadur also
made advances towards her. She had, therefore, a reasonable ground to believe
that her objection, thus, would cause disadvantage to her in connection with
her employment or work including her recruitment or promotion or creating a
hostile working environment.
According to her,
adverse consequences visited as her services have been terminated.
(supra) has been followed in Apparel Export Promotion Council v. A.K. Chopra, [
(1999) 1 SCC 759 ] wherein a Division Bench of this Court inter alia held that
in a case involving violation of human rights, the Courts must forever 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.
however, a disciplinary proceeding is initiated in a case of this nature, a
prima facie finding has to be arrived at as regards the role of the delinquent.
It has been stated before us that the job of Col Hitendra Bahadur was merely to
function as the Chairman in the absence of the regular Chairman.
is not in dispute that no Complaint Committee has been constituted;
no mechanism has been
put in place for redressal of the complaint made by the victim. For one reason
or the other Grewal failed and/or neglected to take appropriate action.
is a matter of great regret that the army which is a disciplined organization
failed to provide a complaint mechanism and ignored the decision of this Court
which was bound to be given effect to in terms of Article 144 of the
Constitution of India. A complaint committee as per `Vishakha' was constituted
for the other teachers and the staff but evidently no complaint committee was
constituted for entertaining a complaint of this nature. Even the purported
disciplinary action initiated by the appellants does not provide a complete
picture. A report was submitted but whether any further action has been taken
or not is not known.
High Court, in our opinion, without getting the matter enquired into could not
have opined that it was a clear cut case of sexual harassment of the writ
petitioner and on that basis directed initiation of a disciplinary action in
the manner as has been done in paragraph 8 noticed (supra).
in modification, of the order passed by the High Court direct that as no
complaint committee has been constituted, which was imperative in character,
the High Court may appoint a Three Members Committee headed by a Lady and in
the event it is found that the writ petitioner was subjected to sexual
harassment, the report thereof may be sent to the army authorities for
initiation of a disciplinary action against the appellants herein on the basis
thereof. All the expenditures which may be incurred in this behalf may be borne
by the Army Authorities. .
would request the High Court also to consider the desirability of disposing of
the writ petition as expeditiously as possible.
appeals are disposed of accordingly. As the Management of the school is guilty
of violating the guidelines issued by this Court in Vishakha and others
(supra), we direct that the Management to pay and bear all the cost of the
first respondent. Counsel fee is assessed at Rs.50,000/-.
[ S.B, Sinha ]
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