Allahabad High Court
Rajendra Baitha vs Appellate Authority/Director And 2 ... on 7 December, 2018
Equivalent citations: AIRONLINE 2018 ALL 5195
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved. Court no. 39. Case :- WRIT - A No. - 14983 of 2018 Petitioner :- Rajendra Baitha Respondent :- Appellate Authority/Director And 2 Others Counsel for Petitioner :- Tarun Agrawal,Saiful Islam Siddiqui,Tahira Kazmi Counsel for Respondent :- Prakash Padia Hon'ble B. Amit Sthalekar,J.
Hon'ble Jayant Banerji,J.
(Delivered by Hon'ble Jayant Banerji, J) Heard Sri Tarun Agrawal, Sri Saiful Islam Siddiqui, Tahira Kazmi, learned counsel for the petitioner and Sri V.K. Upadhyaya, learned Senior Counsel assisted by Sri Prakash Padia for the respondents.
This writ petition has been filed by the petitioner for quashing of the order dated 14.5.2018, passed by the Disciplinary Authority inflicting penalty of reduction to a lower grade i.e. from the grade 'D' to 'B' as a measure of disciplinary action against him after finding him guilty of sexual harassment, of leveling malicious or false allegations, and of commission of acts subversive of discipline or of good behaviour. Further, quashing of the order dated 3.7.2018, passed by the Appellate Authority rejecting the appeal filed by the petitioner, has also been sought.
In the writ petition, it has been alleged that the petitioner was working as Senior Manager (Terminal) in Indian Oil Corporation Ltd. and was posted at Allahabad. A complaint was filed against him by a lady employee, whom hereafter, we shall refer to as Ms. X, whereby, she levelled following allegations of harassment against the petitioner:-
(i) Ms.X accused the petitioner of asking unwarranted questions of a personal nature while they were proceeding to Amethi on 16.2.2017 for conducting a land evaluation committee survey.
(ii) Ms. X accused the petitioner of inappropriately touching her face and lips, and also holding her hand while they were returning to Allahabad on 17.2.2017 after finishing the land evaluation committee survey.
Ms. X alleged that the petitioner made inappropriate physical contact with her during the course of land evaluation committee survey conducted between 16/17.2.2017 and the petitioner also asked unwarranted question of personal nature. Acting on the aforesaid complaint, the concerned authority referred the matter to the Internal Complaints Committee1 constituted under the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 20132. The petitioner was placed under suspension with effect from 3.3.2017. The ICC submitted its report on 17.4.2017 recommending disciplinary enquiry against the petitioner. The petitioner was served with a charge sheet dated 19.4.2017 in which four articles of charge were levelled against him.
The Enquiry Officer conducted the enquiry proceeding wherein, the petitioner, complainant- Ms. X and several other witnesses participated. On 8.3.2018, the Enquiry Officer submitted his report to the Disciplinary Authority who accepted the report of the Enquiry Officer and imposed major penalty on the petitioner. The departmental appeal filed by the petitioner came to be rejected by an order dated 3.7.2018 by the Appellate Authority.
The contention of the learned counsel for the petitioner is that the enquiry report itself indicates that the Enquiry Officer found no merit in the allegation of sexual harassment leveled by the complainant. The finding of the Enquiry Officer on Article of charge nos. 1 and 2 of the charge sheet reveal that at no point of time did the Enquiry Officer deal with the allegation of inappropriate touching of face and lips of Ms. X. The allegation of inappropriately holding of hand of Ms. X has been negativated by the Enquiry Officer.
In support of his contention, learned counsel for the petitioner has taken us through the enquiry report and the observations made by the Enquiry Officer in the report. It is stated that the allegation of the incident at the Hotel room at Sultanpur was made only during the preliminary enquiry by the ICC, which was found to be not proved by the Enquiry Officer. Learned counsel for the petitioner drew our attention to the internal page no. 44 of the enquiry report to the statement of Ms. X that "If physical contacts were not made, I might not have lodged formal complaint" which clearly implied that unwarranted questions of personal nature alleged to have been asked by the petitioner did not, in the opinion of Ms. X, amount to sexual harassment. It is stated that in view of the statement made by Ms. X that she was not feeling uncomfortable at the beginning of the journey on 17.2.2017, shows that the incident alleged to have taken place on 16.2.2017 did not in any manner affect Ms. X. It is stated that it is inconceivable that Ms. X would voluntarily opt to return to a person who, she thought, had indulged in verbal conversation amounting to sexual harassment. It is stated that the aforesaid conversation and the incident that took place on 16.2.2017 did not in any manner perturb Ms. X, and she had absolutely no problem in entering the hotel room of the petitioner on 16.2.2017 and the casual conversation that took place on 16.2.2017 did not amount to sexual misconduct or else Ms. X would have avoided the petitioner. The glaring discrepancy in the date of discussion on the issue with the father of Ms. X by her and date on which the father of Ms. X first discussed the issue with Sri B.K. Soni (Senior Divisional Consumer Sales Manager, Allahabad), has been noted by the Enquiry Officer. Such discrepancy in the cases of personal nature that can only be established by circumstantial chain of events has a significant bearing which cannot be brushed aside as a mere technicality.
It is contended that the conversation of Ms. X with Sri Abhishek Meena (Operation Officer, Allahabad) immediately upon reaching Allahabad on 17.2.2017 is falsified in view of the statement of Sri Abhishek Meena before the ICC, wherein, he stated that Ms. X was talking of irrelevant matters on mobile with him during her return journey on 17.2.2017. Sri Abhishek Meena has stated before the ICC that during his constant conversation with Ms. X while she was returning to Allahabad, no such activity was communicated to him by her which shows that the complaint made by Ms. X had no substance at all. It is stated that despite finding no merit in the allegation of inappropriate physical contact by the petitioner, the Enquiry Officer held that the charges of inappropriate physical contact of touching of face and lips of Ms. X has been established, which conclusion is perverse.
It is contended that the allegation made by Ms. X with regard to sexual harassment did not meet the criteria as set out in Clause 3(13) contained in the Conduct, Discipline and Appeal Rules, 1980 framed by the Indian Oil Corporation3. It is stated that despite all these fallacies in the enquiry, the Disciplinary Authority accepted the report of the Enquiry Officer and by his order dated 14.5.2018 imposed major penalty on the petitioner to 'reduction to a lower grade i.e. from Grade 'D' to Grade ''B', on which post the petitioner had last worked more than 12 years back. It is stated that the punishment imposed on the petitioner by means of this order is shockingly disproportionate and is not commensurate with the acts as alleged by Ms. X and considered in the enquiry report. It is stated that the order of punishment dated 14.5.2018 is manifestly perverse and arbitrary. It is further contended that the departmental appeal was rejected by means of order dated 3.7.2018 and none of the grounds raised by the petitioner have been dealt with in detail by the Appellate Authority which discloses non application of independent mind of the Appellate Authority. Learned counsel for the petitioner has relied upon paragraph no. 17 of judgement rendered in Mazda Begum and others Vs. State of U.P. and others reported in Manu/UP/0222/2017, in support of his contention that each fact alleged has to be duly proved even though the technicalities of the Evidence Act are not strictly applicable.
Countering the submissions advanced by the learned counsel for the petitioner, Sri V.K. Upadhya, learned Senior Counsel appearing for the respondent Corporation submitted that Ms. X joined the Corporation on 17.10.2016 as Engineering Officer at Divisional Office, Allahabad and the incident has occurred within three month of her joining when she was 20 years and 4 months old. The petitioner is not only senior to Ms. X being Manager (Retail Sales) but has a considerable seniority in the Corporation. Further, he is the Unit Level Representative of the Officers' Association of the Corporation and is the link between employees and higher management of the Corporation. It is contended that the incidents complained by Ms. X were of 16.2.2017 and 17.2.2017 during the official tour as a member of Land Evaluation Committee4. Ms. X accompanied the petitioner who was driving his own car. On 16.2.2017 during the journey from Allahabad to Pratapgarh, they were alone and in Pratapgarh Sri Sanjay Kumar (Field Officer, Pratapgarh) joined them in the car and accompanied them to Sultanpur. During this period, while Sri Sanjay Kumar accompanied them, nothing untoward happened. They all checked in at Hotel Garden View at Sultanpur for over night halt. Again next date i.e. on 17.2.2017 in the return journey from Sultanpur to Pratapgrarh nothing untoward had happened as they were attending to LEC visits at some locations. However, on the return journey from Pratapgarh to Allahabad, the petitioner and Ms. X were alone in the car. It is contended that the instances of sexual harassment leveled against the petitioner by Ms. X pertains to the period when they were alone in the journey from Allahabad to Pratapgarh on 16.2.2017 and in the return journey from Pratapgarh to Allahabad on 17.2.2017. He contends that in the cases of sexual harassment, the perspective of the victim has to be considered.
Elaborating further, learned Senior Counsel has taken exception to the observations made by the Enquiry Officer appearing at page 89 of the writ petition with reference to Article of charge nos. 1 and 2 that "it is a case of circumstantial evidence, in which chain of circumstances needs to be complete to such an extent that there is no other possibility except the conviction of the accused person". It is stated that in the cases of sexual harassment broader probabilities have to be seen particularly from the perspective of the victim and the issues have to be dealt with great sensitivity.
Learned counsel has placed before the Court the report of ICC and the original records of the statement made by Ms. X before the ICC and has stated that the petitioner is trying to make capital out of observation made by Ms. X that the petitioner had held her hand with his right hand while driving, only to derive an undue credit of the statement that could be attributable to slip of tongue of Ms. X during her statement before the ICC. It is stated that Ms. X, during her cross- examination was asked no question with regard to physical contact by the petitioner. It is stated that the statement of Ms. X regarding touching her lips and face by the petitioner are un-controverted.
Sri Upadhyaya has drawn our attention to page 94 of the writ petition, in which the Enquiry Officer, while recording the statement of defending employee (DE) has referred to his submission that Ms. X in her statement dated 28.2.2017 had said that the petitioner while driving with left hand was touching her face and lips with his right hand which is not possible. It is contended that this submission of the D.E cannot be made capital of as it is misleading and contrary to the statement given by Ms. X. It is submitted that MX-3 is the report of ICC dated 17.4.2017 consisting of 66 pages which has been referred to by the Enquiry Officer at page 59 of the writ petition. The statement of Ms. X dated 28.2.2017 which has been produced in original has been referred to by the learned senior counsel to demonstrate that Ms. X had referred to the petitioner touching her hand with his right hand while driving and not of touching her face with his right hand.
The cross examination of Ms. X during enquiry proceedings which forms part of Annexure SCA-3 of the supplementary counter affidavit dated 29.7.2018 filed on behalf of the Corporation has been placed before us and it has been pointed out that no question was asked by the defending employee appearing for the petitioner on verbal conversations or of physical contacts which amounted to sexual harassment of Ms. X. Learned Senior Counsel has pointed out that the Enquiry Officer found the charges of Article 1 and 2 against the petitioner to be proved except for the incident at the Hotel in the petitioner's room at Sultanpur and of holding the complainant's hand while driving the vehicle. Learned Senior Counsel has stated that the Disciplinary Authority has carefully applied its mind to the fact of the instant case and records and after careful study of the report of the Enquiry Officer has imposed punishment on the petitioner which is in keeping with and commensurate with the gravity of the charges found proved against the petitioner. He has further stated that the order of the Appellate Authority is one of affirmance and it reflects application of mind of the Appellate Authority and the reason for passing the order are clearly evident from perusal of the same. In support of his contentions, learned counsel appearing for the respondent Corporation has placed reliance on the following judgements:
1. Apparel Export Promotion Council Vs. A.K. Chopra; (1991)1 SCC 759.
2. Indian Institute of Technology and others Vs. Rishabh Jha and others; 2017 (4) ADJ 715.
3. Punita K. Sodhi Vs. Union of India; MANU/ DE/2229/2010.
4. Vidya Akhave Vs. Union of India;MANU/MH/2037/2016.
5. Addl. District and Sessions Judge Vs. Registrar General High Court of M.P and others; (2015) 4 SCC 91.
While considering the issues raised in the writ petition, it would be appropriate to refer to certain material documents which can be described as peculiar to the instant case.
Ms. X had after the incident took place on 16.2.2017 and 17.2.2017, lodged a hand written complaint addressed to the Senior Divisional Consumer Sales Manager of the Divisional Office of the Corporation at Allahabad which was received in the office on 22.2.2017. The contents of which are as follows:
"On 16.2.2017 and 17.2.2017, LEC at Amethi and Pratapgarh was scheduled and committee members were Mr. Azad Verma, Shri Sanjay Kumar, Shri R. Baitha. As Shri Azad has planned his tour to Ambedkar Nagar earlier on 16.2.2017, so he suggested me to do that LEC in place of him.
I was comfortable with Shri Baitha as I felt about him as my guardian as he is my senior in the office. But as my journey began with him at 10.00 a.m on 16.02.2017, he was all the time talking to me but not related to office (irrelevant things). He was asking me type of dresses I wore, what food I liked, about my future plans related to my marriage. He was not interested in any official talks. He was asking either I had any boyfriend etc. He was also telling me the stories of her girlfriends that prior to his marriage he had.
The whole day, we did land Evaluation and we had stayed at Garden View Hotel in Sultanpur for night.
At that time, Shri Sanjay Kumar ( FO, Pratapgarh) was also with us, so Shri Baitha was behaving properly. Next day on 17.02.2017, around 10.00 a.m, I left hotel with Shri Sanjay Kumar for LEC and Shri Baitha had his another plan.
After LEC, we met Shri Baitha at one RO in Pratapgarh. Then, after completion of LEC, me and Shri Baitha left for Ald. Till Prakash Automobiles, Shri Sanjay was with us. As soon as Shri Sanjay left us, me and Shri Baitha were alone, he again started that abusive talks. I was then feeling uncomfortable with him.
He again started asking me about the dresses I wore, type of western dresses I wore etc. His intentions were not right and were intending towards advancement.
All the way, he was staring at me badly. It was very awkward situation for me. He was not concentrating on driving, consequently he hit the car to another car, so the car driver was following our car continuously. That make me not to react to situation, otherwise I could have reacted and could have get out of car.
During journey, he told me that during LEC in Amethi, he was watching me and my face was to red due to sun rays. Then I told that I had some problems with sunrays, so he told me that he would took me to beauty parlour to have facials and get my hair straightened. I refused.
Then he started touching my face at every part saying that I had some allergy at my face. He also touched my lips. I told him that I do not have any allergy, but still he touched all my face and lips also. It was so uncomfortable situation for me that I was afraid whether I could reach home safely or not. He also held my hand without asking and told me that we were friends now.
Lastly he held my hand and told me to promise him that I would not tell anybody anything otherwise people generally took it in negative sense.
I was even not in a situation to get down from the car, as some one was chasing our car and also it was totally dark and unknown route for me. He also told me that he will take me to Ooty, Banglore, Dehradun, etc. for enjoyment in dance party. Also when I talk to him regarding any issue, he talks to me but his eyes are at my private parts. This is not at all acceptable to me.
I request to take appropriate action against Shri Baitha so that re-occurrence of this type of incident or even more to me or any other female shall be avoided in future.
I also submit that if any physical /mental or emotional harm is done to me during the course of investigation and process, Shri Baitha will be held responsible for that.
It is also requested that all the proceedings may be conducted at Allahabad related to me, as I would prefer not to travel to another city with respect to this case."
Acting upon the written complaint made by Ms. X, the ICC conducted an enquiry into the complaint. The ICC met at Allahabad Divisional Office on 28.2.2017. The verbal statements of the complainant Ms. X, the petitioner, one Sri B.K. Soni, SDCSM, Allahabad DO and Administrative head, Sri Anil Kumar DM(E), Allahabad Divisional Office and Sri Narendra Kumar Meena, Engineering Officer, Allahabad DO, were recorded. The ICC also conducted the inquiry on other days and in its report dated 17.4.2017 concluded that the allegations made by Ms. X were credible and that the petitioner's behaviour amounted to sexual harassment of a young woman colleague and recommended action against the petitioner. Accordingly, a charge sheet dated 19.4.2017 was served on the petitioner and four articles of charges were framed against him. The Article of charge and statement of imputation of misconduct in support of article of charge are as follows:
"Article-1.
That Shri Rajendra Baitha on 17.2.2017 while travelling back to Allahabad from Pratapgarh on an official tour had made unwanted physical contact with his female colleague Ms. X, Engineering Officer, Allahabad DO.
Article-2.
That Shri Rajendra Baitha while travelling with his female colleague Ms. X on 16.2.2017 and 17.2.2017 on an official tour had shown undue interest on her personal matters despite no provocation from Ms. X and at times his behaviour with Ms. X tantamounted to unwelcome verbal conduct of sexual nature.
Article-3.
That Shri Rajendra Baitha in order to suppress a serious allegation of sexual harassment made against him by Ms. X attached motive behind the allegation.
Article-4. That Shri Rajendra Baitha in order to suppress a serious allegation of sexual hararssment made against him had made a false claim that the allegation made against him is the result of a conspiracy hatched against him.
In view of the above, Shri Rajendra Baitha has allegedly committed the following acts of misconduct as per clause 7(17), 7(26) and 7(30) of the Conduct, Discipline & Appeal Rules, 1980 of the Corporation:-
7(17).....Sexual harassment.
7 (26)... Leveling malacious or false allegations.
7(30)... Commission of any act subversive of discipline or of good behaviour.
Through the above mentioned acts, Sri Rajendra Baitha also failed to maintain absolute integrity and failed to do nothing which is unbecoming of a public servant as required under sub clause (a) and (c) respectively of clause no.1 of Rule 6 of Conduct, Discipline & Appeal Rules, 1980 of the Corporation.
It is alleged that Shri Rajendra Baitha , Emp. No. 66332 while working as Manager (RS) allahabad DO from May, 2016 till date had committed acts of misconduct. Sequence of events lending to each Articles of charge are narrated below:-
Article-1.
That Ms. X, Engineering Officer, Allahabad DO vide undated letter addressed to Sr. Divisional Consumer Sales Manager, Allahabad DO (received by SDCSM, Allahabad DO on 22.2.2017) and during the course of her deposition on 28.2.2017 before Internal Complaints Committee (ICC) constituted under The Sexual Harassment of Women at Workplace ( Prevention, Prohibition and Redressal) Act, 2013 had made serious allegation of sexual harassment by her colleague Shri Rajendra Baitha. Details of the allegation made by her is as under:-
"On 16.2.2017 Shri Rajendra Baitha and Ms. X left Allahabad together for Amethi and Pratapgarh for Land Evaluation Committee visit. While Shri Baitha was driving the car in which they were travelling Ms. X was sitting in the front seat by his side. After completing LEC visits in few of the locations at Amethi along with Shri Sanjay Kumar, Dy. Manager (RS), Pratapgarh, RSA, they all checked in at Hotel Garden View in Sultanpur for overnight halt.
On the next day i.e. on 17.2.2017 Ms. X proceeded for LEC visits to Pratapgarh along with Shri Sanjay Kumar. After completing LEC visits at few locations in Pratapgarh, S/Shri Rajendra Baitha and Sachin Tiwari, Asstt. Manager (RS), Sultanpur RSA joined them at RO, M/s RP Filling Station. While Ms. X travelled with Shri Sanjay Kumar in the same car, Shri Baitha travelled with Shri Sachin Tiwari in another car. On reaching the Retail Outlet, M/s Prakash Automobiles, Shri Baitha and Ms. X travelled to Allahabad in the same car, driven by Shri Baitha himself.
While travelling back to Allahabad, Shri Baitha on more than one occasion held Ms. X's hand despite her removing his hand. Thereafter, as Ms. X's face turned red due to allergy, Shri Baitha touched her face and lips on more than one occasion despite her taking evasive action.
On returning back to Allahabad on that very day i.e. on 17.2.2017, she reported the above said incident relating to Shri Baitha to her colleague Shri Abhishek Meena, Operations Officer, Allahabad BP. She had subsequently reported this incident to Shri S. Padhye, the then DGM ( Engg), UPSO-I, now DGM (Engg), GSO on 19.2.2017 and to Shri B.K. Soni, SDCSM, Allahabad DO on 20.2.2017.
Thus Ms. X in her undated letter addressed to SDCSM, Allahabad DO in her deposition before the ICC and during discussion with her colleague, S/Shri Abhisek Meena, S. Padhye and B.K. Soni had alleged that Shri Baitha had made unwanted physical contact with her by holding her hand, touching her face and lips during her official tour from 16.2.2017 to 17.2.2017, which tantamount to her sexual harassment by Shri Baitha.
Article-2.
Ms. X in her undated letter addressed to SDCSM, Allahabad DO and in her deposition before the ICC on 28.2.2017 had made the following allegations:-
1. Shri Rajendra Baitha while travelling with her in the same car on an official tour on 16.2.2017 had made several personal questions to Ms. X, Shri Baitha had asked about her likings for food, garment and even enquired about her boyfriends causing embarrassment to her.
2. In the evening of 16.2.2017 after Shri Baitha and Ms. X had checked in at Hotel Garden View in Sultanpur, Shri Baitha had asked Ms. X to order for snacks. However, when Ms. X refused to order for snacks, Shri Baitha had stated that he would like her to order snacks so that he can come to know about her liking for food.
3. While Shri Baitha and Ms. X travelled back to Allahabad on 17.2.2017 in the same car, Shri Baitha asked about her marriage plans and once again asked about her boyfriends. He even offered to mediate for her marriage in case she had any boyfriend. On Shri Baitha offering her help to identify a groom for her, Ms. X replied that her parents would be looking for the groom and she will abide by their decision.
4. Shri Baitha even talked about his own college days, particularly mentioning about the short clothes worn by the girl students.
5. On Ms. X face turning red due to an allergy, Shri Baitha had offered her to take her to a beauty parlour for facials.
6. Shri Baitha had also enquired about Ms. X's birthday and offered to buy clothes for her. On Shri Baitha's query regarding her hobby, when Ms. X had replied that she loves dancing, Shri Baitha had stated that he would take her to Dehradun for dancing, which Ms. X politely refused.
7. Shri Baitha had even offered to take Ms. X to places like Bengulure, Ooty etc. on vacation. In response, Ms. X refused by stating that she would like to utilize her leave for spending time with her family.
8. Just before dropping Ms. X at her residence, Shri Baitha held her hand and requested not to disclose what transpired between them during the tour from 16.2.2017 to 17.2.2017. In response, when Ms. X asked why, Shri Baitha replied that people would take things in a negative sense.
Shri Baitha is much senior to Ms. X age wise as well as in the hierarchy and seniority in the service. Considering this gap between them and also the fact that Shri Baitha prior to his above said tour with Ms. X did not have too much interaction with her, it is quite unnatural on his part in trying to develop so much intimacy with Ms. X through the above said conversations. Further, on some of the occasions the alleged conversations related to Shri Baitha's intention to take her to different places during vacation and maintaining secrecy about what transpired between him and Ms. X during the tour tantamounted to unwelcome verbal conduct of sexual nature on the part of Shri Baitha.
Article-3.
That Shri Rajendra Baitha while deposing before the ICC on 28.2.2017 had stated the following:-
"She has told me that she is not interested in touring jobs. She told that she was not happy with this place of posting. She also told me that her father is not interested in sending her daughter with any male members from office and she only tells her mother while going on tour. Her father might have scolded her and this complaint levelled against me might have been out of frustration so that she will not be given any touring jobs in future with male members.
Similar allegations were made by Shri Baitha in his letter dated 14.3.2017 addressed to ED, UPSO-I and during his deposition before the ICC on 17.3.2017.
However, the above statement was contradicted not only by Ms. X but also by Shri B.K. Soni, SDCSM Allahabad, DO, her Location In-Charge and Shri S. Padhye, the then DGM (Engg), UPSO-I. Ms. X while deposing before ICC on 17.3.2017 in the presence of Shri Rajendra Baitha among others had stated that her parents were aware about her tour. Further, during her deposition before ICC on 17.3.2017 she had stated that she is willing to continue at Allahabad and she never refused to go on tour as a member of LEC. Ms. X vide a separate letter dated 17.3.2017 addressed to ICC had also stated that she is willing to continue at Allahabad and does not want a transfer.
Shri B.K. Soni, SDCSM, Allahabad DO during his deposition before the ICC on 20.3.2017 had also confirmed that Ms. X is ready to go for land evaluation and does not want a transfer from Allahabad.
Shri S. Padhye, the then DGM (Engg), UPSO-I while deposing before the ICC on 21.3.2017 had stated that Ms. X was ready to be a member of LEC.
Considering that Shri Baitha's statement that Ms. X had lodged the complaint against him out of frustration so that she is not given touring jobs in future, was countered by Ms. X herself as well as by SDCSM, Allahabad DO, who is also her Location In-charge and by Shri S. Padhye, the then DGM ( Engg), UPSO-II, it is alleged that Shri Baitha in order to suppress the allegation of sexual harassment made against him had attached motive to her allegation.
Article-4.
Shri Rajendra Baitha during his deposition before the ICC on 28.2.2017 had stated that Shri B.K. Soni, SDCSM, Allahabad DO had a personal grudge against him and had put up Ms. X to lodge a complaint of sexual harassment against him.
During his deposition before the ICC on 17.3.2017, Shri Rajendra Baitha had stated that people are conspiring against him and Ms. X had not made the complaint on her own but at the instigation of some other person(s).
However, Ms. X during her deposition before the ICC on 28.2.2017 had narrated the incident of her sexual harassment by Shri Baitha in detail and nowhere was there any indication that she had been influenced by anybody to lodge a complaint against Shri Baitha.
Shri B.K. Soni during his deposition before the ICC on 28.2.2017 had stated that he enjoys a very cordial relationship with Shri Baitha. On being asked by the ICC on 20.3.2017 about Shri Baitha's contention that he (Shri Soni) has a grudge against him and he had egged Ms. X to file a complaint, Shri Soni had replied that Shri Baitha might have thought so since on hearing the alleged incident of sexual harassment he (Shri Soni) was the one who supported Ms. X to file a complaint and had he not supported Ms. X to lodge the complaint, Shri Baitha would have got away with the above said alleged incident of sexual harassment.
Considering the detail account of the incident narrated by Ms. X before ICC on 28.2.2017 and Shri Soni's statement that on hearing the incident of sexual harassment he was the one who supported Ms. X to file a complaint, it is alleged that Shri Rajendra Baitha in order to suppress a serious allegation of sexual harassment made against him had made a false claim that the allegation made against him is the result of a conspiracy hatched against him".
Along with the charge sheet dated 19.4.2017, a list of documents/ witnesses were enclosed:
List of document by which the Articles of charge are proposed to be sustained against Shri Rajendra Baitha, Emp. No. 66332, Manager (RS), Allahabad DO.
1. Ms. X's undated letter addressed to SDCSM, Allahabad DO, received by SDCSM on 22.2.2017.
2. Ms. X's deposition before ICC on 28.2.2017 and 17.3.2017.
3. Ms. X's dated 17.3.2017 addressed to ICC.
4. Shri Rajendra Baitha's deposition before ICC on 28.2.2017 and on 17.3.2017.
5. Shri Rajendra Baitha's letter dated 14.3.2017 addressed to ED, UPSO-I.
6. Shri B.K. Soni's deposition before ICC on 28.2.2017 and 20.3.2017.
7. Shri S. Padhye's deposition before ICC on 21.3.2017.
8. Any other document(s) considered necessary during the course of departmental inquiry proceedings.
List of witnesses by whom the Articles of Charge are proposed to be sustained against Shri Rajendra Baitha, Emp. No. 66332, Manager (RS), Allahabad DO.
1. Ms. X, Engineering Officer, Allahabad DO.
2. Shri B.K. Soni Emp. No. 44099, Sr. Divisional Consumer Sales Manager, Allahabad DO.
3. Shri Abhishek Meena, Emp. No. 509178, Operations Officer, Allahabad, BP.
4. Shri S. Padhye, Emp. No. 10517, DGM (Engineering), Gujarat State Office.
5. Ms. Chitrita Bose, Emp. No. 21283, Chief Manager (CC), Northern Region Office.
6. Any other witness (es) considered necessary during the course of departmental inquiry proceedings."
Thereafter, the enquiry proceedings commenced before Sri Vipin Arora, who was appointed as Enquiry Officer. Ms. Sangeeta Gangopadhyaya was appointed as Presenting Officer and the petitioner was represented by a defending employee (DE). The enquiry proceedings were held on 14 different dates from 14.6.2017 till 2.2.2018. Six witnesses which included Ms. X were examined on behalf of the Corporation while 11 witnesses (including the petitioner himself) were examined on behalf of the petitioner. The documents submitted that were marked as Exhibits during enquiry were as follows:-
By Presenting Officer (PO).
Document No. Description.
No. of pages.
MX-1 Copy of the charge sheet along with the statement of Articles, List of documents and list of witnesses.9
MX-2 Reply dated 26.4.2017 from Sh. Rajendra Baitha.1
MX-3 Internal Complaints Committee Report dated 17.4.2017 66 By Defending Employee (DE).
Document No. Description.
No. of pages.
DX-1 Copy of mails exchange between SDRSM & SDCSM on non inclusion of one semi skilled manpower for Retail and copy of OIM dated 17.12.2016 from SDRSM to SDCSM on haulage contract.4
DX-2 Copy of mails exchanged between CEC, UPSO I & Allahabad DO on co-option of ULR at Allahabad along with signed form from IOOA members for unanimously nomination of Sh. Rajendra Baitha as ULR from Allahabad DO.4
The Enquiry Officer submitted his report on 8.3.2018. Since defence presentation revolved around a conspiracy theory, hence the Enquiry Officer discussed the charges in reverse order. With regard to Article of charge no. 4, after exhaustively dealing with the submissions and records submitted, the Enquiry Officer found the charges proved and with regard to Article of charge no.3, it was also found proved. Thereafter, the Enquiry Officer discussed the Article of charge nos. 1 and 2 which were with regard to allegation of sexual harassment allegedly meted out by the petitioner on Ms. X. With regard to the incident while driving back to Allahabad, the Enquiry Officer, noting the contentions of the DE observed that the petitioner paid less attention to driving the Car on 17.2.2017 and the fact that a vehicle followed them for more than 2 km., as mentioned by the petitioner himself, can be due to less attentiveness of the petitioner to driving.
Concerted efforts have been made by the petitioner to point out the discrepancies and inaccuracies in the statement of Ms. X referred to in the enquiry report particularly with regard to failure of Ms. X to establish the allegation of inappropriate physical contacts. The reference of holding of hand of Ms. X by the right hand of the petitioner while driving has been repeatedly emphasized in an attempt to demonstrate that in view of the statement of Ms. X herself, such a physical contact was impossible. Moreover, it was sought to be demonstrated on behalf of the petitioner that in view of the statement of Ms. X that if physical contacts were not made, she might not have lodged a formal complaint, reflected that the so called unwarranted questions of personal nature were not considered by Ms. X as amounting to sexual harassment. It was further sought to be demonstrated that even on 17.2.2017 Ms. X was not uncomfortable at the beginning of the journey, this is why she did not opt for getting down at two Retail Outlets where the petitioner had stopped his car for making inspection.
In the statement made by Ms. X before the ICC, which has been produced before us in original, though it is evident that there appears to be a discordance in the statement made by Ms. X with regard to holding of her hand by the petitioner with his right hand while driving which may have been not possible, however, this in no way has any bearing on the statement made by Ms. X that the petitioner had touched her face and lips inappropriately which caused her serious discomfiture. Moreover, the attempt of the petitioner to extract advantage from the statement made by Ms. X to the effect that had the physical contact not been made, she would not have filed complaint can only be described as a futile attempt to extract millage from the distress and vulnerability by Ms. X. Ms. X was a little over 20 years of age and freshly employed in the Corporation and, we have reason to believe that she was looking with hope and aspiration towards her future career. We are inclined to agree with the contention of learned counsel for the respondent Corporation that the perspective of the victim in the cases of sexual harassment is very important.
At this stage, it would be apt to refer to the statement made by Ms. X before the ICC which, was admittedly part of record before the Enquiry Officer. Ms. X stated that this was her first LEC visit independently. She left with the petitioner on 16.2.2017 at around 10.00 hours in the morning for inspecting LEC at Amethi and Pratapgarh. On the way, the petitioner started speaking about her tastes in clothes, food, boyfriends etc. which made her feel uncomfortable. They were joined by Sri Sanjay Kumar, Dy. Manager (RS), Pratapgarh and they left together in his vehicle, where Sanjay Kumar was driving and the petitioner was sitting next to him with Ms. X on the rear seat. The three of them then proceeded for LEC for Retail Outlets in Amethi. In the evening, they went to Garden View Hotel in Sultanpur, where they reached at around 2030 hours of 16.2.2017. The dinner was arranged in the room of the petitioner who called Ms. X to the room for dinner where the petitioner was alone. Ms. X sat on the sofa and the petitioner asked her to sit on the bed which she did after insistence of the petitioner. The petitioner asked her to order snacks so that he could get to know her tastes in food. Then Sanjay Kumar came into the room and they had snacks. Thereafter, Sanjay Kumar and Ms. X left the room. Next day i.e. on 17.2.2017 at 1000 hours Ms. X had breakfast with Sanjay Kumar, the petitioner and Sri Sachin Tiwari, Assistant Manager (RS), Sultanpur. After breakfast, the petitioner and Sachin Tiwari left for inspection of Retail Outlets. Ms. X proceeded with Sanjay Kumar for LEC at Pratapgarh at around 1130 hours. It was only when the petitioner was alone with Ms. X that while speaking to her, he never looked at her face but his gaze wandered to the upper part of her body which made her very uncomfortable.
From Prakash Automobiles Ms. X traveled back with the petitioner at around 1700 hours and en-route the petitioner started asking her questions about her marriage plans and if she had any boyfriends. He also offered to become a mediator for her marriage in case she had a boyfriend. He also offered to find Ms. X a husband to which she said that her parents would look for the boy and that she would abide by their decision. Whilst the petitioner was questioning her, he kept holding her hand but Ms. X did not react as she was a little confused about his behavior and motive. However, she removed her hand. Initially she thought that he was treating her like his daughter, however, his later activities proved her wrong. The petitioner spoke to Ms. X about his past which included his time at college in Siliguri and his girlfriends. He also spoke about his college mates who were girls and who used to wear short clothes and joined them in games like kabaddi etc. implying that they were very open minded about such things, thereafter she stated as below:
"On 16.2.2017 during the LEC with Sri Rajendra Baitha and Sri Sanjay Kumar my face had turned red as I am slightly allergic to the sun. During the drive back to Allahabad on 17.2.2017 Sri Rajendra Baitha said that he had seen my face had turned red, however, he did not comment since there were others present. He touched my face and lips and said that he would take me to a parlour for facials. I did not like it and I removed his hand, despite which he again started touching my face. I felt very uncomfortable and said I was fine. I was terrified and called my friend Sri Abhishek Meena, Ops Officer who works in Allahabad BP. However, he didn't take the call. Later he called back but since I was with Sri Rajendra Baitha in the car I did not say exactly what had happened but carried on a conversation so that it appeared that there was someone who was there for me. Once I reached home I called Sri Abhishek Meena and narrated the entire incident to him. I was so disturbed that I could not sleep the whole night.
Sri Rajendra Baitha was continuously staring at me while driving instead of looking ahead, as a result of which he banged into a car in front. I was petrified. I wanted to get out of the car, however, it was dark, the other car was chasing us and I was new to the place so I continued sitting in the car. Sri Rajendra Baitha speeded up, rolled down the window and asked the driver of the other car to meet him at an RO ahead.
We reached the RO within the next 10 minutes and stopped. We stopped there for approx 20-25 minutes. The driver chasing us did not come to the RO. I was waiting outside while Sri Rajendra Baitha went inside to the Sales Room. He called me inside, but I was feeling uncomfortable and did not join him. However, on his insistence I went in. There were RO attendants present in the room. Sri Rajendra Baitha checked the DSR and then we left again.
En route once more Sri Rajendra Baitha began his queries into my personal life and insisted that I should go with him to buy clothes immediately. He said, 'hamein bhi pata chaley tumhe kya pasand hai.' He asked me when my birthday was and offered to buy me clothes on my birthday to which I said OK, just to get him off my back for the present. I did not want to create a scene since he is considerably senior. He held my hand again. He was steering with his left hand whilst he held on to my right hand with his right hand saying that we were now friends.
Sri Rajendra Baitha then asked me what my hobbies were to which I said I loved dancing and he said that he would take me with him to Dehradun where he had friends and family gatherings and that I should perform there. I said 'Main aise nahi Karti'.
He then offered to take me with him to Bengalore, Ooty and other places for personal vacation. He asked me to take Casual leaves for the holidays to which I told him I had saved the leaves to spend with my family. He said that he would arrange for me to get leave.
Just before he dropped me off at my residence he held my hands and asked me to promise him I would not mention all that had happened to anyone. I asked him why and he said that it would be taken negatively by the people here.
Prior to this incident I never had any direct interaction with Sri Rajendra Baitha since he was in a different team, however, there was one instance when I was uploading a tender in the room of Sri Anil Kumar, Dy Manager (E). I was alone in the room. Sri Rajendra Baitha came there and inquired why I was looking harassed. He said I could always go to him in case of any problem. He further said I should sit in Sri Anil Kumar's room when he was not present.
On 18.2.2017 I met Sri Pushkar Kumar, CM (E), UPSO-I who was visiting Allahabad and congratulated him on his promotion. Later I came to office and finished my work. Later in the evening I spoke to my senior colleague, Sri Narendra Meena, Engineering Officer, Allahabad DO regarding my horrifying experience with Sri Rajendra Baitha on 16/17.2.2017. I also spoke to Sri Sachin Kumar, Asst. Manager (RS), Robertsganj who suggested that I should warn Sri Ranjendra Baitha so that this kind of incident does not recur.
On 19.2.2017 I spoke to my senior colleague Ms Shilpi Verma, Engineering Officer, Varanasi DO who suggested that I speak to DGM (E), UPSO-I who would give me the right guidance. I first tried to speak to Sri B.K. Soni, SDCSM, Allahabad DO, however, he did not take the call. I then spoke to Sri Sanjay Padhye, DGM(E), UPSO-I and narrated the incident to him. He asked me to go to UPSO-I and meet him personally. Sri Soni later called me at about 2130-2200 hours on 19.2.2017. I said that would speak to him in the morning. I called Sri Soni in the morning of 20.2.2017 and narrated the incident to him. I told him that I was going to Lucknow. He offered me the office car as he was out of town. I left for UPSO-I on 20.2.2017 at about 1100 hours.
I met Sri Sanjay Padhye, DGM(E), UPSO-I at approx 1530 hours on 20.2.2017 and narrated the incident to him. He offered me three alternatives.
1. To ignore and seek a transfer.
2. To complain and seek a transfer.
3. To complain and face the consequences.
Subsequently, on 21.2.2017 I met ED, UPSO-I who had been briefed by Sri Sanjay Padhye about the incident. ED UPSO-I said that such incidents should not go unpunished and advised me to lodge a written complaint.
On the advice of DGM(E) and ED, UPSO-I, I spoke on the phone to Ms. Devyani Singh, Manager (HR), UPSO-I who was out of town. On the return journey Sri Anil Kumar, DM(E), Allahabad DO rang me up and asked me why I had stayed back in Lucknow to which I told him that I had a problem and that I would be filing a complaint against Sri Rajendra Baitha. He said that everyone was with me and that I should go ahead with the complaint.
On 21.2.2017 after returning from Lucknow I spoke to my father narrating the entire episode. He was very supportive and insisted that I should give a written complaint. On 22.2.2017 I came to office and filed a written complaint with Sri B.K. Soni, SDCSM, Allahabad DO.
On the night of 25.2.2017 I received a call from Sri Deepak Kumar, Asst. Manager (RS), Mirzapur SA. He said that he has spoken to Mrs. Baitha who was crying and very upset and that I should withdraw the complaint for the sake of Mr. Baitha's family. He said Mr. Baitha would get punished in any case as his conscience would be pricking him. (a recording of the entire conversation is available with me.) It was further suggested that I be withdrawn from LEC, however, it is my belief that LEC is not the point, the point was that such an incident can take place anywhere any time with anyone."
The Enquiry Officer after considering the entire records and the submissions made by the defending employee of the petitioner found the charges under Articles 1 and 2 to be proved except for the incident at the Hotel in the room of the petitioner and also of holding the complainant's hand while driving the vehicle.
Thus, as per the enquiry report, it was proved that the petitioner had made unwarranted physical contacts with his female colleague Ms. X which was of touching her face and lips on 17.2.2017 while traveling back to Allahabad from Pratapgarh on an official tour. It was further proved that the petitioner while traveling with his female colleague Ms. X on 16.2.2017 and 17.2.2017 had shown undue interest on her personal matters despite no provocation from Ms. X and at times his behavior with Ms. X tantamounted to unwelcome verbal conduct of sexual nature.
The Disciplinary Authority considering the enquiry report as well as written representation of the petitioner against the finding of the Enquiry Officer observed that discussion with Ms. X and the petitioner were varied and very personal in nature both on 16.2.2017 and 17.2.2017. The Disciplinary Authority observed that it appears to be a case of one sided intrusive interaction on the part of the petitioner as he was trying to intrude into the personal space of Ms. X. The Disciplinary Authority further observed that it was not just the unusual behavior of Ms. X on 16/17.2.2017 which bears testimony to the fact that some untoward incident had happened. He observed that the enquiry revealed the even more direct evidence of the above said incident of the petitioner having touched the face and lips of Ms. X. Shri Abhishek Meena, (Operations Officer) (MW-5) had stated that Ms. X had called him on 17.2.2017 while she was on tour, which was very unusual on her part and he had observed that Ms. X appeared to be frightened while speaking to him. Further, Shri Meena had stated that Ms. X on her return to Allahabad on 17.2.2017 had again called him at around 8:00 PM and narrated the alleged incident. The Disciplinary Authority relying upon the deposition of MW-5 and Ms. X (MW-6), which were not countered by the defence either during cross-examination, sum-up report or written representation of the petitioner, coupled with the finding of the Enquiry Officer, had found it conclusively established that the petitioner had indulged in unwanted physical contact with Ms. X by touching her face and lips. With regard to article of charge No. 3 and 4, the Disciplinary Authority observed that with reference to petitioner's claim of a conspiracy being hatched by MW-2 Shri B.K. Soni, this issue was not brought out by defence while cross examining Shri Soni.
With regard to Article of charge no. 3, the Disciplinary Authority observed that the petitioner had attached motive behind the allegation of sexual harassment made against him by Ms. X and the charge was proved. The charge No.4, that in order to suppress a serious allegation of sexual harassment, the petitioner had made a false claim that the allegations made against him was the result of a conspiracy hatched against him, was found proved. Therefore, the Disciplinary Authority found the petitioner guilty of acts of misconduct as per the Conduct, Discipline and Appeal Rules, 1980 of the Corporation and taking into consideration the gravity of the acts of misconduct committed by the petitioner, the Disciplinary Authority inflicted upon him the penalty of "Reduction to a lower grade" i.e. from Grade ''D' to ''B'. Further, that the petitioner's date in Grade in the reduced Grade-B would be reckoned from the date of original seniority i.e. 31.3.2006.
The petitioner preferred an appeal on 21.5.2018 before the Appellate Authority. The petitioner also filed a chronology of the case on 22.6.2018. The Appellate Authority, by means of his order dated 3.7.2018, referred, to the contentions made by the petitioner on each of the Articles of charge.
It is evident from the appellate order that the Appellate Authority had considered the contentions raised by the petitioner. The Appellate Authority also dispelled the contention of the petitioner that the penalty order was not passed by the competent authority. It observed that at the time of passing the final order, the petitioner was posted as Senior Manager (Terminal), Allahabad Terminal and the Disciplinary Authority who passed the aforesaid order was the concerned functional head of the Department and was not below the rank of CGM in Head Office and had acted as a competent Disciplinary Authority. With regard to the petitioner's contention that the penalty order had been mechanically passed without considering certain allegations which were not proved, the Appellate Authority observed that the penalty order had been passed on the basis of allegations found to be proved by the Enquiry Officer that the petitioner had touched the face and lips of Ms. X and same was passed after careful consideration of the facts and circumstances of the case as brought out on record and after the competent Disciplinary Authority had applied its mind. With regard to the contention of the petitioner that Ms. X was flipping the DSR book and deposition of defence witness DW-3 Shri Triveni Nath Tiwari, Customer Attendant, M/s. Shivgarh Filling Station were not enough to reach to the conclusion that he touched the face and lips of Ms. X and that he had questioned veracity of deposition of MW-5 Abhishek Meena, the Appellate Authority observed that the change in the behavior of Ms. X was pointed out by individuals other than the complainant herself which is a clear indication of her state of mind at that point of time. The enquiry revealed even more direct evidence of the petitioner having touched the face and lips of Ms. X which had already been stated in the order passed by the competent Disciplinary Authority. With regard to petitioner's ground of appeal that the complaint was the result of a conspiracy hatched against the petitioner by his colleague Shri B.K. Soni, the Appellate Authority referred to the order passed by the competent Disciplinary Authority and observed that he was in agreement with the observations made by the competent Disciplinary Authority. Moreover, with regard to petitioner's contention that Ms. X had indulged in personal conversations with him out of her own accord and showed no resistance when he was talking about personal matters, the Appellate Authority observed that this contention was also proved by the competent Disciplinary Authority in the final order issued by him and he agreed with the observation made by the competent Disciplinary Authority. Accordingly, the appeal of the petitioner was rejected on 13.7.2018.
It is pertinent to mention here that the challenge has been made by the petitioner to the order of the Disciplinary Authority and the Appellate Authority arising out of charge-sheet dated 19.4.2017, but in the writ petition, the petitioner has chosen to confine his challenge to only Article of charge nos. 1and 2 which pertains to the allegation of sexual harassment leveled by Ms. X against the petitioner and not to the other two Articles of charge nos. 3 and 4 which also were found duly proved by the Enquiry Officer and so ratified and acted upon by the Disciplinary Authority and affirmed by the Appellate Authority.
The Supreme Court in the case of Apparel Export Promotion Council (supra) has observed as under.
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"2. 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.
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23. 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 Ms. 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. Ms. 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 Ms. X, though the statement of management witness Suba Singh shows that the respondent had put his hand on the hand of Ms. 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 Ms. 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 Ms. 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 Ms. 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 Ms. 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 Ms. X state before the Enquiry Officer that the 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 Ms. X and asked her the reason for being upset, Ms. 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 Ms. 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 Ms. X, taking advantage of his superior position in the Council.
24. 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: (SCC p. 252, para 17).
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."
25.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.
26. 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. [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].
27. 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.
28. The observations made by the High Court to the effect that since the respondent did not actually molest Ms. 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, Ms. 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 Ms. 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."
The Delhi High Court in the case of Punita K. Sodhi (supra) referring to a judgment in Ellison Vs. Brady, U.S. Court of Appeals formulated the ''reasonable woman' standard and observed as under:-
"76. Ellison Vs. Brady U.S. Court of Appeals, Ninth Circuit 924 F. 2d 872 (1991), the Court of Appeals formulated the ''reasonable woman' standard and observed:-
We believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. Courts "should consider the victim's perspective and not stereotyped notions of acceptable behavior." If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy.
We therefore prefer to analyze harassment from the victim's perspective. A complete understanding of the victim's view requires, among other things, an analysis of the different perspective of men and women conduct that many men consider unobjectionable may offend many women. A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a ''great figure' or ''nice legs'. The female subordinate, however, may find such comments offensive. Men tend to view some forms of sexual harassment as "harmless social interactions to which only overly-sensitive women would object. The characteristically male view depicts sexual harassment as comparatively harmless amusement.
We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share. For example, because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.
In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper-sensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when the alleges conduct which a reasonable women would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment."
Referring to the flawed approach of the Committee constituted to enquire into the allegations of sexual harassment, the Delhi High Court went on to observe as follows.
79. The above decisions help in appreciating that a complaint of sexual harassment and sex based discrimination required the body entrusted with the investigation of such complaint to undertake its task with the correct approach and sensitivity. If the entire complaint of the petitioner is examined in the light of the above discussion, it is clear that the inquiry cannot be limited to the complaint of the petitioner that Dr Malik attempted to touch her at wrong places, while in the operation theatre in 2001. Incidents of sexual harassment ought not to be viewed in isolation. The other parts of the complaint are as relevant in determining whether there was any persistent conduct of the perpetrator which could be termed as sex based discrimination or harassment over a prolonged period. The humiliation faced by a victim of sexual harassment could remain with the victim. It is revisited and compounded when the victim and perpetrator have to continue to work in the same establishment. The imbalance in the power equation between the perpetrator and the victim could exacerbate the problem. The impact of such incidents on the continuing working relationship of the perpetrator and the victim will also have to be considered in examining whether the complaint made of sexual harassment, even if belated, is justified. In a complaint of sexual harassment of sex based harassment or discrimination, which persists over a length of time, the defence of limitation or laches may not find relevance.
80. The committee also appears to have overlooked the numerous other instances cited by the petitioner in hr complaint which partake of sex based harassment and discrimination. While sexual harassment would be specie of sex based discrimination, the latter could encompass a whole range of commissions and omissions, not restricted to acts that partake of express unacceptable sexual acts or innuendoes. CEDAW too recognizes that harassment can be ''sex based' and take various forms. The use of abusive and abrasive language and a certain imputation of the competence of a person only because such person of a certain gender are matters that would be covered under the expression ''sex based' discrimination. For instance, the specific case of the petitioner is that the language used by Dr. Malik in the memos and letters issued by him, questioning the integrity and competence of the petitioner is plainly abusive. This has not been considered at all by the committee. To borrow the articulation of the Supreme Court of Canada in Janzen, "discrimination on the basis of sex may be defined as practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic related to gender. It is important for committees dealing with complaints of sexual harassment to understand the above dimensions of sex based discrimination at the work place and not narrowly focus only on certain acts that may have been the trigger for a series of acts constituting sex based harassment or discrimination. Also, as pointed out in Ellison V. Brady, the committee was required to "focus on the perspective of the victim". The injunction to courts that they "should consider the victim's perspective and not stereotyped notions of acceptable behavior" equally applies to Committees that enquire into allegations of sexual harassment and sex based discrimination."
The aforesaid judgment of Delhi High Court was also followed by the Bombay High Court in the matter of Vidya Akhave (supra). The Bombay Court observed as follows:-
15. Having observed the settled position of law regarding the scope of the High Court in interfering with the punishment that is imposed by the Disciplinary Authority, next question which falls for our consideration is whether the inquiry was held in a fair and proper manner. We have perused the report submitted by the Internal Complaints Committee and we find that full opportunity was given to both the parties to lead evidence and the Respondent No. 2 was also given a fair opportunity of defending himself. It is not necessary to deal with each and every allegation which has been made by the petitioner in the complaint since we have to examine whether the findings recorded by the committee can be interfered with by this Court. It is equally well settled that if a domestic enquiry is held, after giving an adequate opportunity to the parties and the Enquiry Committee comes to a particular conclusion then merely because two views are possible, the High Court while exercising its writ jurisdiction is not expected to re-appreciate the evidence and come to the different conclusion than the one which is arrived at by the Committee. We are, therefore, of the view that the committee has dispassionately considered all the allegations and have discarded certain allegations which were made after lapse of one year and at the same time held the petitioner guilty of instances of sexual harassments which had taken place from July, 2011 to 22nd February, 2013. The Committee had also requested the Disciplinary Authority to take action under Rule 9 of the said Rules.
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17. So far as the order passed by the Disciplinary Authority is concerned, it is not in dispute that the punishment imposed on the Respondent No. 2, is a major punishment of reduction in rank to a lower stage by two stages with cumulative effect. It has been urged that this punishment is disproportionate and the Respondent No. 2 ought to have been reduced in rank. It is submitted that taking into consideration the statements of witnesses and more particularly, the statements of the women employees, who had in their statements talked about the unbecoming of a person and conduct of Respondent No. 2, ought to have been considered as a circumstance for the purpose of establishing the case of the petitioner. We are of the view that it is not possible to accept this submission of the learned counsel for the petitioner. The Disciplinary Authority in no uncertain terms has condemned the conduct of the Respondent No. 2 and has observed that this part of the behavior of the Respondent official in the said organization. It must also be noted that even though the Enquiry Committee did not take into consideration the allegations made in para No. 1 to 13 of the complaint on the ground of limitation, but it still recommended that the departmental enquiry will have to be made on these allegations but not under the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
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20. From the above observations it is apparent that very often women share common concerns which men do not necessarily share or the concern expressed by women have not been necessarily understood by men in the proper perspective. There is no manner of doubt that women are socially and physically vulnerable and are faced with sense of constant insecurity while working in any organization and it is the duty of every employer to ensure that the appropriate safeguards are provided by the men in the organization to protect the women from sexual harassment and other types of harassments. The employer should ensure that the duties which are cast upon them by the said Act are complied in neat."
This Court in the case of Indian Institute of Technology (supra) while setting aside the judgment of a learned Judge of this Court observed as follows:-
39. The Supreme Court in the case of Apparel Export Promotion Council Vs. A.K. Chopra, 1999 (1) S.C.T. 642 : 1999 (1) SCC 759 has observed that the Courts are required to examine the broader probabilities of the case and not get swayed by insignificant discrepancies or narrow technicalities. The statement of the victim has to be appreciated in the background of the entire case, and when the evidence of the victim inspires confidence, the Courts are obliged to rely on its. Such cases are required to be dealt with great sensitivity and sympathy to the accused is wholly misplaced and mercy has not relevance.
43. In paragraphs 34 and 35 of the impugned judgment the Hon'ble Single Judge has observed that the complainant should have lodged a formal police complaint. In the matter as the allegations when found proved by the committee would amount to commission of offence, which was required to have been dealt with in accordance with law and that the complainant may not have consented to lodging of FIR and on the basis of which the certain inferences have been drawn by the Hon'ble Single Judge which are totally uncalled for. Moreover, certain observations made by the Hon'ble Single Judge that the complainant has been "too kind to the petitioner" and the advances of the respondent petitioner "ought to have been objected at the threshold" and immediately after the first incident occurred in February. 2014, a protest ought to have been raised are manifestly erroneous.
In rejoinder, reliance placed by learned counsel for the petitioner on the case of Mazda Begum (supra) is in support of his contention that the statement of Ms. X that was recorded during the enquiry conducted by the ICC could not have been referred to by the Enquiry Officer. This contention is misplaced inasmuch as the list of documents enclosed with the charge-sheet dated 19.4.2017 clearly mentioned and included the deposition of Ms. X before the ICC on 28.2.2017 and 17.3.2017. Moreover, before the Enquiry Officer, the report of ICC dated 17.4.2017 consisting of 66 pages was exhibited as MX-3 which, as contended by the learned senior counsel appearing for the respondent Corporation, included all the statements made by the witnesses before the ICC during the enquiry conducted.
In this writ petition, the petitioner has not been able to point out any defect in the procedure of the enquiry conducted by the ICC or in the departmental enquiry conducted by the Enquiry Officer. Before the ICC the petitioner was present in person and his statement was duly recorded by the ICC. The statement of other witnesses including that of Ms. X was also recorded by ICC and from perusal of its report, it appears that ICC had comprehensively considered the allegation made by Ms. X against the petitioner before submitting its report and during the proceedings of ICC, Ms. X and the petitioner had confronted each other.
During the disciplinary enquiry, oral enquiry had been duly conducted and several witnesses both on behalf of management as well as defence were examined. The petitioner was duly represented by the defending employee (DE) and was also present in person. Adequate opportunity was also afforded to the parties to produce evidence, examine and cross examine the witnesses and after thorough analysis of records, the Enquiry Officer recorded his findings. It is not the contention of the petitioner that any objection raised by him in his written representation dated 14.4.2018 before the Disciplinary Authority were not considered by him.
The petitioner has not cared to file or produce the representation dated 14.4.2018 submitted by him before the Disciplinary Authority. Since all the charges were found proved against the petitioner by the Enquiry Officer except the incident in the Hotel room on the night of 16.2.2017 and the allegation of holding of hand of Ms. X by the petitioner, we observe that the quantum of punishment inflicted on the petitioner is commensurate with the charges as proved against the petitioner. The order of the Appellate Authority has also considered the appeal of the petitioner and has recorded its reasons in affirming the order of Disciplinary Authority.
The Supreme Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney; (2009) 4 SCC 240 has held that the Appellate Authority even when affirming the order of the Disciplinary Authority is required to give reasons, at least in brief, so that one can know whether the Appellate Authority has applied its mind while affirming the order of the Disciplinary Authority. In our opinion, the Appellate Authority has applied its mind and recorded reasons in the instant case.
For the reasons aforesaid, we find no illegality or infirmity in the proceedings taken against the petitioner by the Enquiry Officer, Disciplinary Authority and the Appellate Authority of the respondent Corporation and, therefore, see no reason to interfere in the matter in exercise of writ jurisdiction under Article 226 of the Constitution of India.
This writ petition is, accordingly, dismissed.
Since the matter pertains to sexual harassment and it is a sensitive issue, we direct that the name of the lady aggrieved would not feature in any record of this Court and be expunged from the same.
Date: 07.12.2018 sfa/