D.S Grewal v. Vimmi Joshi And Others

S.B Sinha, J.— Leave granted.

2. These three appeals arise out of a common judgment and order dated 3-5-2006 passed by a Division Bench of the High Court of Uttaranchal at Nainital in Writ Petition No. 398 (SB) 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. The 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 Colonel Hitendra Bahadur, the 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. The 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 a 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.

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. Nowhere 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 whenever you need me. It will be a great pleasure.

With lots of love.

Your

sd/-

‘H’ ”

7. Allegedly Hitendra Bahadur used to make advances towards Respondent 1. She reported the matter to Grewal. Her father also met him. Allegedly he was abused by Grewal.

8. On or about 12-10-2004 Grewal addressed a letter to Respondent 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 27-9-2004, 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 9-10-2004, your father came to my office to meet me. He also made an allegation against the Deputy Commander. You were then asked by Major Pankaj Bhola, the BM of 69 Mountain Brigade to meet me in my office. The matter was discussed and I directed you to forward the allegation in writing to me by 9-10-2004.

4. Till date, the allegation has not been received by me. Hence, I will not take cognizance of the matter.”

9. On or about 25-10-2004 two anonymous complaints were received by the Managing Committee from the Headquarters as against Respondent 1. By a memorandum dated 25-10-2004 she was asked to give her comments on the said allegations. She made her comments by her letter dated 27-10-2004. However, her services were terminated by an order dated 4-12-2004 stating:

“1. Refer to this Headquarters Letter No. 620401/1.APS/Sigs-4 dated 30-9-2004 and Article 186(f) of AWES Rules and Regulations, Vol. I, for Army Schools/Army Public School (October 2003 Edn.).

2. SMC regrets to inform you that your services are no more required, hence your services are terminated forthwith.

3. A cheque bearing Machine No. 176096 dated 4-12-2004 for Rs 14,200.00 (rupees fourteen thousand two hundred only) towards one month's 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 (Seniormost PGT) of Gen. B.C Joshi APS, Pithoragarh.

sd/-

(D.S Grewal)

Brigadier

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 1 allegedly participated therein. By a report dated 20-1-2005 it was found to be not a case of sexual harassment. Hitendra Bahadur was directed to be counselled.

12. Before the High Court the appellants filed their counter-affidavits inter alia contending:

(i) That the order of termination has nothing to do with the alleged sexual harassment.

(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 workplace 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 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 Vishaka v. State of Rajasthan (1997) 6 SCC 241.

8. The progress of the disciplinary action so taken in such a serious matter which may even warrant the court-martial proceedings of these two 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 Court which was also dismissed by order dated 18-5-2006. The said order of the High Court refusing to review its earlier order dated 3-5-2006 is not in question in these appeals.

15. We may furthermore place on record that a first information report was also lodged against Respondent 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 13-2-2006.

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 Colonel Hitendra Bahadur had caused sexual harassment to Respondent 1, so as to pass a final judgment on the subject despite directing initiation of a disciplinary proceeding against them.

(2) As the 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 22-7-2004 of Colonel 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 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 1, Vimmi Joshi who was his subordinate;

(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 1's services was mala fide and/or otherwise bad in law.

18. Indisputably the writ petition was filed by Respondent 1 which is still pending. In our opinion, it would, thus, be not proper for us to enter into merits of the matter.

19. However, indisputably, in terms of the judgment of this Court in Vishaka (1997) 6 SCC 241 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:

“5. Disciplinary action

Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action 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 organisation 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: (Vishaka case (1997) 6 SCC 241)

“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.”

The legislature too has keeping in mind the abovenoted guidelines from Vishaka (1997) 6 SCC 241 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 Parliament. We cite the Bill only to show that the lawmakers too have accepted the directions and guidelines which had been laid down by this Court.

20. Respondent 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. Vishaka (1997) 6 SCC 241 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 the delinquent. It has been stated before us that the job of Colonel Hitendra Bahadur was merely to function as the Chairman in the absence of the regular Chairman.

23. It is not in dispute that no Complaints 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 organisation 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 Complaints Committee as per Vishaka (1997) 6 SCC 241 was constituted for the other teachers and the staff but evidently no Complaints 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.

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 para 13 noticed (supra).

26. We, in modification, of the order passed by the High Court direct that as no Complaints Committee has been constituted, which was imperative in character, the High Court may appoint a three-member 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 Vishaka (1997) 6 SCC 241, we direct the management to pay and bear all the costs of the first respondent. Counsel's fee is assessed at Rs 50,000.