1999 Supreme(SC) 48

1999(1) Supreme 110
Supreme Court of India
(From Delhi High Court)
Dr. A.S. Anand, CJI., V.N. Khare, J.
Apparel Export Promotion Council -Appellant
versus
A.K. Chopra -Respondent
Civil Appeal Nos. 226-227 of 1999
(Arising out of SLP (Civil) Nos. 15099-15100 of 1997)
Decided on 20-1-1999
Counsel for the Parties :
For the Appellant : P.P. Rao, Sr. Advocate, A.P. Dhamija, Sushil Kumar Jain and A. Mishra, Advocates.
For the Respondent : K.T.S. Tulsi and V.C. Mahajan, Sr. Advocates, D.K. Garg, Vikas Pahwa, and R.C. Kaushik, Advocates.

Important Points
1. 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.
2. 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.
3. 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.
4. 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 guaranteed by the Constitution of India.

Headnote:(i) Service Law - Disciplinary pro­­ceedings-Dismissal from ser­vice-Charge that delinquent tried to molest subordinate woman employee at place of work-Enquiry officer found that charge proved-Disciplinary authority imposed punishment of dismissal from ser­vice-Appellate authority confirmed punishment on reappreciation of case-High Court not doubt­ed correctness of occurrence-Reappre­cia­ted evidence and drew inference that delinquent had tried to molest but not actually molested com­plainant and therefore punishment of removal from service not warrant­ed - Not sustainable - High Court while exercising power of judicial review cannot substitute its own conclusion with regard to guilt of delinquent-High Court cannot normally impose some other punishment or penalty-Acts of delinquent unbecoming of good conduct and behaviour expected from superior officer-Undoubtedly amounted to sexual harass­ment-Punishment of removal from service commensurate with gravity of objectionable behaviour.

       Held : 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 complainant’s 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 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. (Para 21)

       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 and 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”. (Para 22)

       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. (Para 22)

       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 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. (Para 27)

       (ii) Service Law-Disciplinary proceedings-Judicial review of-Scope of power of Court.

       Held : 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 or 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. (Para 16)

       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 well squarely within the sphere of jurisdiction of that authority. (Para 17)

       (iii) Service Law-Sexual harassment at work place-Amounts to violation of fundamental right to Gender Equality-What constitutes sexual harass­ment.

       Held : 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 Vishaka’s 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 victim’s 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 of 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. (Paras 23 & 24)

       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 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. (Para 25)