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

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.

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.   

8. On  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 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.”

9. On  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 terminated forthwith.

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 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.

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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

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.

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

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 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

13th 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

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 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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