Full Judgment Text
REPORTABLE
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
J U D G M E N T
S.B. SINHA, J.
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1. Leave granted.
2. These three appeals arise out of a common judgment and order dated
rd
3 May, 2006 passed by a Division Bench of the High Court of Uttaranchal
at Nainital in Writ Petition No. 398 (S/B) of 2004.
3. In 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 Education Society.
4. Appellant (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.
5. First 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
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10.2.2003 to 10.8.2003. She was appointed as the Principal of the school
from 10.2.2004.
6. Appellant 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.
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With lots of love.
Your
Sd/-
“H”
7. Allegedly 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.
th
8. On or about 12 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.
th
2. On 27 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 given.
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
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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 the matter.”
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9. On or about 25 October, 2004 two anonymous complaints were
received by the Managing Committee from the Head Quarters as against
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respondent No.1. By a memorandum dated 25 October, 2004 she was
asked to give her comments on the said allegations. She made her
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comments by her letter dated 27 October, 2004. However, her services
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were terminated by an order dated 4 December, 2004 stating :-
“1. Refer to this Headquarters letter number
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620401/1/APS/Sigs-4 dated 30 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 terminated forthwith.
3. A cheque bearing machine number 176096
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dated 04 Dec 04 for Rs.14,200.00 (Rupees
fourteen thousand two hundred only) towards one
month salary is enclosed as per the agreement.
4. Handing/Taking 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 APS,
Pithoragarh.
5
Sd/-
( D.S. Grewal )
Brig.
Chairman ”
10. A 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.
11. In the meanwhile a purported enquiry was conducted. Respondent
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No.1 allegedly participated therein. By a report dated 20 January, 2005 it
was found to be not a case of sexual harassment. Hitendra Bahadur was
directed to be counseled.
12. Before 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 harassment.
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(ii) Writing a letter was merely appreciable in nature and by
reason thereof no sexual harassment was caused by
Hitendra Bahadur.
(iii) Hitendra 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.
13. By 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 241”.
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
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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.”
14. Before, however, we embark upon the respective contentions of the
parties we may notice that a review application was filed before the High
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Court which was also dismissed by order dated 18 May, 2006. The said
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order of the High Court refusing to review its earlier order dated 3 May,
2006 is not in question in these appeals.
15. We 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
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13 February, 2006.
16. Mr. 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
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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
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writing, cognizance of the said letter dated 22 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 wholly misconceived.
17. Ms. 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 ;
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(2) As the Vice Chairman of the Managing Committee of the
School, he was in a commanding position ;
(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.
18. Indisputably 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.
19. However, 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
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should be initiated by the employer in
accordance with those rules.
6. Complaint mechanism :
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.
7. Complaints Committee :
The complaint 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.
The Complaints 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 harassment.
The Complaints 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 Government
Department.”
The Court furthermore defined ‘sexual harassment’ to include :-
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“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.
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.
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20. Respondent 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.
21. Vishakha (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.
22. Before, 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
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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.
23. It 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.
24. It 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.
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25. The 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).
26. We, 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. .
27. We would request the High Court also to consider the desirability of
disposing of the writ petition as expeditiously as possible.
28. The 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/-.
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………………………J.
[ S.B, Sinha ]
………………………J.
[ Cyriac Joseph ]
New Delhi
December 17, 2008
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