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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.