Full Judgment Text
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PETITIONER:
APPAREL EXPORT PROMOTION COUNCIL
Vs.
RESPONDENT:
A.K. CHOPRA
DATE OF JUDGMENT: 20/01/1999
BENCH:
V.N.Khare
JUDGMENT:
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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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.