Full Judgment Text
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IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of Decision: 09 July, 2019
+ W.P.(C) 5114/2015
ANITA SURESH ..... Petitioner
Through: Mr.Ashwani Verma, Ms.Sheetal
Mishra, Advocates
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr.Anil Dabas, Advocate for UOI.
Mr.Yakesh Anand, Advocate for
ESIC.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
J U D G M E N T
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1. The petitioner has challenged the order dated 20 January, 2012 of the
Internal Complaints Committee (ICC). The petitioner is seeking a direction
to respondent No.2 to withhold the retirement benefits of respondent No.3;
to initiate independent departmental enquiry against respondent No.3 and to
also prosecute respondent No.3.
2. The petitioner was working as an Assistant Director with ESI
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Corporation in Manesar, Gurgaon in July, 2011. On 08 July, 2011, the
petitioner made a written complaint to the Director General of ESI
Corporation alleging sexual harassment by respondent No.3. According to
the petitioner, respondent No.3 misbehaved and made attempts of sexual
W.P.(C) 5114/2015 Page 1 of 8
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advances. The petitioner reported following two incidents dated 07 July,
2011 in the complaint:-
(i) “ Yesterday when I was seated with my colleagues on the
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1 floor of the building, Sh. Verma came and
commented indicating sexual advances. I cannot for the
reasons of modesty bring on papers the filthy language
he uses for me.”
(ii) “Yesterday in the presence of my staff and other
members he asked me to come alone to check the
shortcomings of the male toilet when nobody is there
and I will follow you soon.”
3. Respondent No.1 constituted an Internal Complaints Committee to
examine the complaint of the petitioner. Respondent No.3 appeared before
the Committee and denied all the allegations made by the petitioner.
According to respondent No.3, the petitioner made the complaint because of
the grudge against him due to certain official work disposed by him in her
absence.
4. The Committee examined the petitioner as well as respondent No.3.
The Committee examined eight witnesses namely Rashmi Kapoor (O.S.),
Lakhan (Supervisor Housekeeping), Rajender Yadav (SSO), Prasanna (Staff
Nurse), Hema (Staff Nurse) Pradeep Kataria (Nursing Orderly), Jai
Bhagwan (Nursing Orderly) and Kalpana (Dietician).
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5. The Committee submitted its report on 20 January, 2012, in which it
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observed that the exact content of communication of the incident dated 07
July, 2011 could not be established. The Committee gave benefit of doubt to
respondent No.3 and recommended relocating both the petitioner and
respondent No.3 from their present posting.
W.P.(C) 5114/2015 Page 2 of 8
6. Learned counsel for the petitioner urged at the time of the hearing that
the findings of the Committee are erroneous and unjustified. It is submitted
that the petitioner had proved by sufficient evidence that respondent No.3
misbehaved and made attempts of sexual advances against the petitioner on
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07 July, 2011 mentioned in the written complaint on 08 July, 2011.
Respondent No.3 pressurized the petitioner to withdraw her complaint
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whereupon a warning was issued to him on 04 November, 2011. The
transfer of both the parties to different places was not a justified penalty to
the respondent No.3.
7. Learned counsel for the respondent No.1 urged at the time of the
hearing that respondent No.1 transferred both the petitioner and the
respondent No.3 from their posting. It was further submitted that respondent
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No.3 superannuated on 28 February, 2015.
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8. Vide order dated 28 March, 2019, this Court directed the employer,
ESI Corporation to produce the original relevant records which were
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produced on 09 April, 2019 and have been examined by this Court.
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9. The petitioner made the complaint dated 08 July, 2011 against the
respondent no.3 which is reproduced hereunder:-
“To,
The Director General,
ESI Corporation
Hqrs. Office, CIG Mrag.
New Delhi – 02
Sub: Sexual harassment by Sh. O.P. Verma, Dy Director, ESI
Hospital, Manesar, Haryana.
Sir,
I am posted as Assistant Director in the office of ESI
Hospital, Manesar. In the same office another officer Sh.
O.P.Verma, Dy. Director is seated in the adjoining room where
W.P.(C) 5114/2015 Page 3 of 8
I work. For some time passed Sh. O.P.Verma has been
misbehaving with me and makes attempts of sexual advances. It
was only yesterday when I was seated with my colleagues on
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the 1 floor of the building, Sh. Verma came and commented
indicating sexual advances.
I cannot for the reasons of modesty bring on papers the
filthy language he uses for me. Yesterday in the presence of my
staff and other members he asked me to come alone to check
the shortcomings of the male toilet when nobody is there and I
will follow you soon.
I am to request you to safeguard my honour and take
necessary action against him. I will explain the earlier
instances of harassment as and when the matter will be
investigated.
This matter has also been brought to the notice of the
Medical Superintendent in earlier and in the afternoon of
07.07.2011 also.
Yours faithfully
Signed/-
(Anita Suresh)
Assiatant Director
ESI Hospital, Manesar”
(Emphasis Supplied)
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10. As per the complaint dated 08 July, 2011 of the petitioner, the
respondent no.3 made comments indicating sexual advances against the
petitioner who was sitting with her colleagues on the first floor of the
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building on 7 July, 2011. The second incident mentioned in the complaint
is that the respondent told the petitioner to come alone in the male toilet to
check the shortcomings in the presence of the staff and other members.
11. The Committee examined the petitioner who could not recollect the
names of any of the persons present at the time of the aforesaid incidents.
The petitioner was shown the relevant papers relating to the staff members
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present on that day but still she could not recollect the names. The petitioner
stated that she confided the incidents to Rashmi Kapoor (O.S.) on the same
day after the incident. The Committee examined Rashmi Kapoor who stated
that she was not present at the time of incident. However, she stated that the
petitioner told her that the attitude of respondent No.3 towards the petitioner
was not good. She further stated that the petitioner told her that respondent
No.3 made two inappropriate comments against her. However, these two
comments were not stated by the petitioner in her statement to the
Committee.
12. The Committee examined Lakhan (Supervisor Housekeeping) who
stated that the petitioner was matching the goods with the list and he did not
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witness any incident on 07 July, 2011 as alleged by the petitioner.
13. The Committee examined Rajender Yadav (SSO) who was present at
the time of incident and he stated that there was no altercation between the
petitioner and respondent No.3.
14. The Committee examined Prasanna (Staff Nurse) who stated that the
petitioner had normal relations with respondent No.3 who never commented
on her in her presence.
15. The Committee examined Staff Nurses Hema (Nursing Orderly),
Pradeep Kataria (Nursing Orderly), Jai Bhagwan (Nursing Orderly) and
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Kalpana (Dietician) who did not witness any incident on 07 July, 2011.
16. The Committee examined respondent No.3 who denied all the
allegations of sexual harassment made by the petitioner. He stated that he
brought the absence of soap in the male toilet to the notice of the petitioner.
He further stated that his remarks were misinterpreted and taken totally out
of context. He further stated that the petitioner made complaint against him
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due to a grudge which was the result of certain official work disposed by
him in petitioner’s absence.
17. On careful consideration of the record of the inquiry proceedings, this
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Court is of the view that the complaint dated 08 July, 2011 of the petitioner
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appears to be false. The complaint dated 08 July, 2011 contains two
incidents out of which the first incident was in the presence of the
petitioner’s colleagues whereas the second incident was in the presence of
the staff and other members. During the inquiry proceedings, the petitioner
could not give the name of any person present at the time of the incidents.
The petitioner was shown the record of the staff persons present on duty on
the date of the incident but still she could not recollect the names of any
colleague/staff member. It is not believable that the petitioner would not
remember the names of any colleague/staff member. The Committee
examined all the persons who were on duty on that day but no persons
supported the allegations of the petitioner. The petitioner has not mentioned
the alleged comments of respondent No.3 in the complaint on the ground of
modesty. The petitioner did not even disclose the alleged comments before
the Committee. No reason or justification was been given by the petitioner
for not disclosing the same before the Committee. The entire complaint of
the petitioner appears to be false and has been filed with some ulterior
motive.
18. The record produced by the respondent No.5 contains the service
record of the petitioner. The petitioner joined ESI Corporation as an
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Insurance Inspector on 24 September, 1997. On 15 February, 1998, the
petitioner was issued a charge sheet for major penalty proceeding for
negligently surveying two firms ignoring vital information and suppressing
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material information while submitting the survey reports. Vide order dated
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23 October, 2001, the Insurance Commissioner took the view that the
petitioner had only put one year of service in the Corporation and no
malafide intention was proved and therefore, a lenient view was taken and
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the penalty of ‘ Censure’ was imposed upon her. On 03 March, 2006, the
petitioner was issued a charge sheet for major penalty proceeding by
Regional Office, Delhi on the allegations that during her posting in Legal
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Branch as an Insurance Inspector for the period from 22 March, 2004 to
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12 July, 2004, the petitioner had exhibited gross misconduct as she failed to
follow the reasonable order of her superiors and exhibited lack of devotion
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towards duty. Vide order dated 22 September, 2009, the Insurance
Commissioner observed that the conduct of the petitioner was unbecoming
of a Corporation employee and imposed the penalty of reduction pay by one
stage for one year. The petitioner filed an appeal which was rejected by the
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Appellate Authority vide order dated 27 October, 2010 and thereafter, she
preferred a revision petition which was also rejected. This rejection order
was further challenged by the petitioner before this Court in W.P. (C)
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8529/2011 which was dismissed by this Court vide order dated 24
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November, 2011. On 13 July, 2011, the Medical Superintendent of ESIC,
Hospital, Manesar, Haryana, Dr. Archana Rani gave a written memorandum
to the petitioner who was posted in the hospital as an Assistant Director to
show cause as to why the action should not be taken against her for
insubordination and gross misconduct. The above mentioned incidents show
that the petitioner did not have a clean service record.
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19. There is no merit in this writ petition which is dismissed with cost of
Rs.50,000/- to be deposited by the petitioner with the Delhi High Court
Advocates Welfare Trust within four weeks.
20. Respondent No.2 is at liberty to initiate appropriate action against the
petitioner for filing false compliant against the respondent no.3 in
accordance with law.
21. Copy of this judgement be sent to the respondents.
22. List for reporting compliance with respect to the payment of the cost
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before the Joint Registrar on 9 August, 2019.
J.R. MIDHA, J.
JULY 09, 2019
ds
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