Madras High Court
Mr.Bader Sayeed vs )The Southern India Education Trust on 3 August, 2012
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.08.2012 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.480 of 2010 and M.P.Nos. 1 to 7 of 2010 Mr.Bader Sayeed ... Petitioner Vs... 1)The Southern India Education Trust, Administering JBAS College for Women (Aided Institutions) & JBAS MMHS Boys School and FBMHS for Girls and Deslexia Centre, Registered under the Societies Registration Act, and having its office at No.54, K.B.Dasan Road Teynampet, Chennai-600 018. represented by its Secretary. 2)Mr.Moosa Raza, Chairman of the SIET, No.54, K.B.Dasan Road, Teynampet, Chennai-600 018. 3)Dr.M.S.Mehkari Correspondent FBMHS School for Girls and Dyslexia Centre, Teynampet, Chennai-600 018. 4)Mr.Faizur Rahman Sayeed 5)University of Madras, Rep. by its Registrar, Chepauk, Chennai-600 005. 6)The Director of School Education, College Road, Chennai-600 006. 7) The Director of Collegiate Education, College Road, Chennai. ... Respondents Prayer : Writ Petition is filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, calling for the records relating to the communication of the 1st respondent dated 01.01.2010 in SIET Ref.No.6473/10/2010, and quash the same and direct the 1st respondent to constitute a Committee as per Vishaka's judgment of the Hon'ble Supreme Court to enquire into the allegations made against the respondents 3rd and 4th under the circumstances stated above. For petitioner : Mr.G.Rajagopalan, S.C for M/s.S.Thiruvenkatasamy. For Respondents : Mr.C.Mani Shankar (for R1) Mr.Vijay Narayanan, S.C., (for R3) for Mr.R.Krishnamoorty Mr.A.L.Somayaji, for Mr.S.Arun Prasad (for R4) O R D E R
A practising Advocate and Joint Secretary of SIET, Chennai, has challenged the communication of the 1st Respondent dated 01.01.2010 in SIET Ref. No. 6473/10/2010 and sought for a direction to the first respondent to constitute a Committee as per Vishaka's Judgment of the Hon'ble Supreme Court to enquire into the allegations made against the Respondents 3 and 4.
2. On the basis of the pleadings and the material on record, in the form of Typed Set of papers filed by the contesting parties, Learned Senior Counsel appearing for the parties advanced arguments. Decisions were also cited.
3. Mr.G.Rajagopalan, learned Senior Counsel appearing for the petitioner submitted that the petitioner is a practicing lawyer and hails from a reputed family and held various positions. She was also an Additional Advocate General, during the years 2004-2006 for the State of Tamilnadu; Chair-Person of the State Minorities Commission between 1991-1996; Chair-Person of the Tamilnadu Wakf Board between 2002-2006; Correspondent of the Justice Basheer Ahmed Syed College for Women from the year 1991 to 1998 and Member of the 1st Respondent Trust/Society; and social activist fighting for the cause of women and children.
4. According to the Learned Senior Counsel, the present Writ Petition has been filed in the interest of the girl students and the staff, including teaching staff, studying and working in the Institutions administered by the 1st Respondent Trust. The 2nd Respondent herein is the Chairman of the Trust and the 3rd Respondent, who is the brother of the 2nd Respondent is the Correspondent of the Fathima Basheer Matriculation Higher Secondary School for Girls and Dyslexia Centre. The 4th Respondent is the son of one of the founders of the Trust and now the Correspondent of Justice Basheer Ahamed Sayeed College for Women and Justice Basheer Ahamed Sayeed Boys School and said to be practicing as an advocate.
5. Learned Senior Counsel for the petitioner further submitted that a series of letters were received by the petitioner as well as by the other Members of the Trust, making serious allegations against respondents 3 and 4, including allegation of sexual harassment against the staff members of the college and school. According to him, mere reading of the complaints would show that the allegations against respondents 3 and 4 are serious in nature. Some of the petitions are signed and some of them are anonymous.
6. Learned Senior Counsel for the petitioner submitted that if the allegations made in the petitions are true then serious consequences follows. In the circumstances, on 12th October, 2009, the petitioner wrote a letter to the Chairman of the Trust, the 2nd respondent stating that the allegations levelled against the members of the Executive Council, amounts to serious breach of conduct by them and that the charges must be thoroughly investigated and therefore, it is mandatory to constitute a Committee to deal with sexual harassment in the working place, as per the guidelines of the Supreme Court in Vishaka v. State of Rajasthan reported in AIR 1997 SC 3911.
7. Learned Senior Counsel further submitted that the second respondent herein has sent a reply, dated 27.10.2009, stating that two of the said letters forwarded by the petitioner were anonymous and the other two bear some signatures and that he is making his own enquiries to ascertain the authenticity of those letters and that he would proceed further in the matter, after such enquiries. Thereafter, on 05.12.2009, the petitioner sent a letter to the 2nd Respondent, stating that his personal enquiries in the matter would not satisfy the legal requirements and that a Committee is required to be constituted, keeping in line with the guidelines framed by the Supreme Court of India. Even thereafter, no enquiry Committee was constituted and in fact, the 1st Respondent-Executive Council proceeded to re-appoint the 4th Respondent as the Correspondent of the Women's College and that the petitioner noted her dissent in the meeting for reappointing him. He also submitted that the petitioner has taken a categorical stand that since the 3rd Respondent is the brother of 2nd Respondent, and therefore any enquiry by the 2nd Respondent will not meet ends of justice and that therefore, she has insisted that an independent Enquiry Committee should be constituted to go into the allegations made against the respondents 3 and 4.
8. According to the Learned Senior Counsel, the petitioner was under the impression that the 1st Respondent would comply with the orders of the Supreme Court. She was shocked to receive a communication dated 01.01.2010 from the 1st Respondent, stating that out of four letters, two were to be treated as anonymous and in respect of other two letters were sent through registered post to confirm the authenticity and that the registered letters were returned by the postal authorities with an endorsement that "There were no such persons" and hence these letters were pseudonymous.
9. Learned Senior Counsel for the petitioner further submitted that the approach of the Second Respondent as Chairman of the 1st Respondent-Trust is wholly inappropriate and that the 1st Respondent ought to have constituted a Committee to enquire into the allegations made against respondents 3 and 4. According to him, SIET Education Institutions are for women and thousands of girl students are studying and hundreds of women staff are working and in such circumstances, an enquiry into the allegations are necessary in the interest of the students and staff and it is the duty of the 1st Respondent Trust, in public interest, to find out whether the allegations are true or not.
10. It is the further case of the petitioner that despite severe allegations made against respondents 3 and 4, they are still continuing to hold responsible positions in the Trust, as well as in the Educational Institutions. In the circumstances, as a member of the Executive Council and in the capacity of the Joint-Secretary of the Society, the petitioner has filed the writ petition, to set aside the letter of the 1st Respondent dated 1.1.2010 and sought for a direction to the 1st Respondent, to constitute a Committee, as per Vishaka's Judgment, to enquire into the allegations made against the Respondents 3 and 4.
11. Learned Senior Counsel for the petitioner further submitted that at the work place, if there is any allegation relating to sexual harassment, it is imperative that a duly constituted committee, has to enquire into the matter. He further submitted that in view of the Vishaka's Judgment, and considering the nature of allegations, it is mandatory for any educational agency to appoint a committee to enquire into the allegations and that therefore, the second respondent, being the brother of respondent 3, has no jurisdiction to conduct any discreet enquiry. He further submitted that the discreet enquiry conducted by the 2nd respondent is biased and that the same is not in conformity with the judgment of the Apex Court, stated supra.
12. The Chairman of The Southern India Educational Trust, first respondent herein, has filed a detailed counter affidavit. Reiterating the same, Mr.Vijayanarayan, Learned Senior Counsel for the first respondent submitted that the Southern India Education Trust (S.I.E.T.), is a minority institution, registered under the Societies Registration Act XXI of 1860 in the year 1955, by late Justice Basheer Ahmed Sayeed Sahib, who was a judge of this Court. He was a champion of women's rights and established a College for Women, for the educational advancement of women in general and the weaker sections among them, in particular. Lateron, S.I.E.T. established two schools, one for the boys and the other for the girls, both of them, are unaided. S.I.E.T also has a Centre for Dyslexic Children, a Vocational Training Centre, a Centre for Differently Abled Children, and a Women's Study Centre.
13. Learned Senior Counsel further submitted that the first respondent has been a member of the Indian Administrative Service for 35 years and served the Government of Gujarat, as Additional Chief Secretary and Principal Secretary to the Hon'ble Chief Minster. He has also served as Chief Secretary of Jammu and Kashmir Government and as Secretary to the Government of India. He has also served as an Adviser to the Governor of Uttar Pradesh, in the wake of the demolition of the Babri Masjid. Since retirement, he has served in several committees of the Government of India and Jammu and Kashmir and also a member of Pota Review Committee for Gujarat and Jammu and Kashmir, the Committee constituted to review the judicial reports on communal riots. He was a member of the National Integration Council. On the date of filing of this writ petition, the first respondent has been serving as a member Aligarh Muslim University, as a nominee of the President of India. In the Republic Day Honours of 2010, His Excellecy the President of India has been kind enough to award him, with a Padma Bhushan Award for his distinguished service.
14. According to the Learned Senior Counsel for the first respondent the third respondent is a leading Doctor in the City of Chennai and also a social worker. He is retired Senior Civil Surgeon from Tamil Nadu Government Medical service, and he is running a clinic in the middle class area of Chennai and serving the middle class and weaker sections. As far as the fourth respondent is concerned, he is the son of late Justice Basheer Ahmed Sayeed Sahib, who was the Founder of the College and the Society. After taking over as the Correspondent of the College, 4th respondent, has worked tirelessly and improved the functioning of the college. He is also a Barrister having passed out from Alberta University, Canada. He is also practicing as Lawyer in various Courts and a respectable member of the community.
15. Learned Senior Counsel for the first respondent submitted that the S.I.E.T. is a declared Minority institution not receiving any aid from the Government and hence, does not fall within the definition of State. He further submitted that merely by adding the Director of Collegiate Education, Chennai, the Petitioner cannot seek to maintain a Writ Petition, especially when no case is made out nor any relief is claimed against respondents 5 to 7. He has also submitted that the disputed questions of fact have been raised in the writ petition and hence, it is not maintainable.
16. Learned Senior Counsel for the first respondent further submitted that it is due to the hard work put in by the Executive Council and the Correspondents of the College and Schools respectively, the educational institutions have progressed and earned a high reputation. According to him, the prayer in this writ petition, to quash a letter issued on behalf of the 1st respondent, is wholly misconceived and hence, the writ petition is not maintainable.
17. Learned Senior Counsel for the first respondent further submitted that the schools are run only by the Trust with its own funds and that they would not fall within the purview of the Director of School Education, Chennai. Neither the two schools nor the Dyslexia Centre receive any grant in aid from the Government. He therefore submitted that the Trust cannot be construed as an authority/State under Article 12 of the Constitution of India, as contended by the petitioner.
18. Learned Senior Counsel for the 1st respondent submitted that the first respondent has received four letters from the Petitioner under a covering letter, dated 12.10.2009. Two of these letters were anonymous and the other two contained names and they appeared to be pseudonymous. However, since the two letters contained names typed, with the address, affixing some scribbled signatures, as a measure of abundant caution, the Chairman of the Executive Council decided to ascertain the authenticity of these purported complainants before proceeding further. Registered Letters with Acknowledgments Due, were therefore sent to the addressees mentioned in the letters and that the same were returned by the postal authorities with an endorsement "No such person". Since the contents of the letter were couched in such extremely scurrilous language, casting highly defamatory allegations, throwing mud on some of the respectable members of the institutions, it was therefore construed as an attempt to tarnish the image of the College, Schools and the Trust. The allegations made against the 4th Respondent were not confined to him alone, but his innocent wife engaged in a respectable profession of teaching was also sought to be defamed. Learned Senior counsel submitted that it was obvious that the motive of the writers of these anonymous and pseudonymous letters was solely to defame the Correspondents and destroy the image of the institutions and bring down its esteem in the eyes of the students, staff and members of the public with oblique motive.
19. Learned Senior Counsel further submitted that in none of these letters there was any serious allegation of "sexual harassment" except libelous allegations. He also submitted that there are no complainants or victims mentioned in the letters who could come forward to give evidence. Therefore the enquiry which the petitioner demands would only be a witch hunt and a fishing expedition, giving rise to rumours, gossip and further tarnishing the image of the institutions. According to him, anyone can make such serious/frivolous allegations anonymously/pseudonymously against any respectable person in the society and in the instant case, against an esteemed institution and such anonymous and pseudonymous complaints do not provide sufficient reason for holding a general enquiry, without the existence of the affected parties/complainants. He submitted that constitution of a committee for the purpose of making an enquiry, cannot be simply be ordered for mere asking.
20. Learned Senior Counsel further submitted that the Petitioner herself has not made any efforts to ascertain the authenticity of the anonymous/ pseudonymous letters. When registered letters were sent to the persons named in the complaint, they were returned by the postal authorities, with an endorsement "No such person" in the address mentioned by them. According to the Learned Senior Counsel, those who had made allegations against respectable persons, should come forward to prove his/her allegation and anyone, who supports such anonymous/pseudonymous letters has to ascertain the authenticity, before making any averments.
21. According to the Learned Senior Counsel, when the petitioner herself admits that if the allegations made in the anonymous/pseudonymous letters are proved, then serious consequences would follow, then this presupposes that the alleged aggrieved persons should have come forward and aver that the complaint was made by him or her, as an affected party. Learned Senior Counsel further submitted that in the four letters which were forwarded by the Petitioner, there was no such person existing, nor was there a claim made that the complainant in the said letter, that he/she was the aggrieved party. Nor there was any claim in the letters that an offence amounting to "sexual harassment" has been committed.
22. Denying the contention of the petitioner that the anonymous/pseudonymous letters, include allegations of "sexual harassment" of the staff members of the College and Schools, Learned Senior Counsel for the first respondent submitted that a careful study of the four letters sent by the petitioner to the first respondent do not make out any "sexual harassment". The allegations are defamatory and the letters contain libelous statements, vulgar, vague averments, fictitious, false and highly motivated insinuation against the character of the respectable Correspondents and against the innocent and respectable wife of the 4th respondent. According to him, allegations are motivated, obviously with a mala fide desire to tarnish the image of the individuals and institutions.
23. Pointing out that the petitioner has forwarded only four letters to the Chairman of the Executive Council of SIET first respondent herein, Learned Senior Counsel submitted that before this Court seven letters have been produced, out of which, additional three letters are against a retired lady Principal of the College, who demitted the office, after rendering 38 years of devoted service to the institution. He further submitted that even without verifying their authenticity, the said letters have been produced before this Court.
24. Learned Senior Counsel for the first respondent took this Court through the contents of the letters and submitted that those who have written the said letters, have called the Principal as "a dog which runs away if it sees strong men" "a pig that runs to consume human excreta" etc. This anonymous/pseudonymous letter also accuses the Principal for having given posts to Non-Muslims, and quoting Prophetic traditions, threatened the Principal with hell. According to the Learned Senior Counsel, such a letter reflects the perverted mindset of the anonymous/pseudonymous writer of the letter and his/her extremely biased and communal orientation.
25. Learned Senior Counsel for the first respondent further submitted that there are no credible materials, warranting holding of any enquiry. He further submitted in the absence of any aggrieved party, the enquiry would be a useless formality and even the petitioner is not able to substantiate the allegations or whether complainants exist or not. According to the Learned Senior Counsel, to start a general enquiry without the existence of any aggrieved person or real complainant, merely, on the basis of some anonymous/pseudonymous letters, is absolutely unwarranted. In this context, he drew the attention of this Court, to the directions issued by the Central Vigilance Commission, dated 29.06.1999, regarding anonymous/pseudonymous complaints.
26. Learned Senior Counsel for the first respondent submitted that the members of the Society, viz., the Chairman, Members, Correspondents are all voluntary social workers and are working for the educational upliftment of the weaker sections of society. Any enquiry to be started on the basis of malafide, malicious, and motivated allegations, where no victim or aggrieved party exists, would be futile exercise and when such a non-existent complainant cannot be summoned to provide evidence, the enquiry which the petitioner demands, would only result in total and utter demoralization of the voluntary workers, who come forward to work selflessly, for the cause of education and advancement of weaker sections of the society.
27. Taking this Court through the judgment in Vishka's case, Learned Senior Counsel for the first respondent submitted that the guidelines of the Supreme Court in Vishaka Case, clearly presupposes the presence of the ingredients mentioned in the "definition" as also the existence of a complainant, an aggrieved person, or a victim and witnesses. According to him, in the case on hand, in the absence of any complainant, victim or witnesses, no roving enquiry can be conducted. He further submitted that the question of constituting an enquiry committee does not arise at all, when there is neither an aggrieved party nor a complainant in existence.
28. Learned Senior Counsel further submitted that even if a Committee is constituted, such a committee is not supposed to do a roving enquiry, when there are no complainants and not even a prima facie case is of "sexual harassment" is made out. He further submitted that the Executive Council of S.I.E.T. has re-appointed the fourth respondent as the Correspondent of the Women's College and that the Petitioner's dissent was also noted. He further submitted that the enquiry conducted by the second respondent is fair and reasonable, and the averments made in the writ petition casts aspersions on the moral integrity of the second respondent. The appointment of the 4th respondent was necessitated for releasing the salaries of the teachers and if the appointment had been delayed, the teachers would have suffered and hence, there was a sense of urgency and therefore, a meeting was called for and that the fourth respondent was re-appointed as Correspondent. He further submitted that the appointment of the 4th respondent as Correspondent owing to the situation prevalent at that time is the collective decision of the Executive Council and therefore, the allegations of bias are totally baseless.
29. Learned Senior Counsel submitted that the College enjoys a high reputation in the city, both for its secular nature and its composition of mixed communities. It is therefore necessary to protect not only the reputation of the institutions, but of the girls and teachers against such scurrilous, libelous and defamatory allegations. The Chairman of the Executive Council has regretted that it was very unfortunate that an institution which has remained free from such allegations in the past is being made to face the challenge of such vulgar and defamatory allegations. He further submitted that the petitioner has chosen to lend support to such allegations without making even preliminary enquiries.
30. Denying the allegations that the second respondent wanted to make the third respondent as the Secretary of the Trust, Learned Senior Counsel for the first respondent submitted that it was a collective decision of the Executive Council, made, after following the procedure laid down under the rules of the Trust and that the Executive Council has elected Mr.T.Rafeeq Ahmed, as the Secretary of the Society who is not related to the Chairman.
31. Learned Senior Counsel for the first respondent submitted that the enquiry conducted by the second respondent cannot be said to be biased or vitiated, even if the third respondent happens to his brother. To ascertain the authenticity of the letters through the postal department, an agency of the Government of India, over which, the Chairman of the Executive Council has no control or authority. Registered letters have been sent, and it was ascertained that there was "no such person". According to the Learned Senior Counsel, it is the duty of the Chairman to find out the authenticity and existence of the real complainants, before appointing a committee. He also submitted that the internal affairs of the College and Schools have no relevance to this case.
32. On the basis of the counter affidavit filed by the third respondent, Mr.R.Krishnamoorthy, Learned Senior Counsel submitted that the third respondent belongs to a respectable and well-known Muslim family of Tamil Nadu, which has produced civil servants, lawyers and Judges to serve the society. The 3rd respondent is a qualified registered Medical Practitioner with degrees of M.B.B.S., M.D., and D.M.R.D. He has served as a Senior Civil Surgeon specialist in Radiology and as Head of the Department of Radiology in E.S.I. Hospital, Ayanavaram, Madras and has been practicing medicine for a long time as a General Medical Practitioner and a Family Physician, and running a clinic in Royapettah, Chennai treating poor and middle class patients for general ailments. He is also an Honorary Member of the Committee constituted by the Tamil Nadu Wakf Board.
33. Learned Senior Counsel for the third respondent further submitted that the 3rd respondent has been a General Body Member of the 1st respondent, The Southern India Education Trust, for about 10 years and Honorary Correspondent of the S.I.E.T. Dyslexia Centre. According to him, none of the institutions are getting any kind of aid from the Government and that they are administered by the 1st Respondent- Charitable trust, which is also not getting any kind of aid from the Government.
34. Learned Senior Counsel for the third respondent further submitted that copies of some four anonymous and pseudonymous letters written by some unscrupulous persons to tarnish the reputation and image of the 3rd respondent, containing vulgar abuse, wild and defamatory statements of character assassination, false imputations in the most scurrilous language were forwarded by the Petitioner to the Chairman of the 1st Respondent Trust, with a covering letter dated 12.10.2009, in which she has demanded that an "enquiry committee" should be set up, on the basis of these anonymous and pseudonymous letters forwarded by her.
35. According to the learned counsel, the Chairman of the 1st Respondent-Trust took immediate steps to ascertain the authenticity of the four letters forwarded by the Petitioner. As far as the two anonymous letters forwarded by her were concerned, no ascertainment could be made as no name or address was given in the letter. But in respect of the other two letters, which appeared to have contained some names, typed at their end, some purported address and one illegible scribbled signature, the Chairman has sent letters through registered posts with Acknowledgement Due, through Postal Department to the purported writers of these letters, at the purported address, given by them in those letters, in order to ascertain their authenticity.
36. He submitted that the Postal Department returned all the registered post (R.P.A.D.) letters sent by the 2nd Respondent with an endorsement "No such person" on each cover. He also pointed out that one of the pseudonymous letters contained the name of a purported writer, one "Mrs. Hafeeza Begum", who claimed to be an "advocate". He submitted that the return of these letters has clearly and conclusively prove that the said letters are absolutely pseudonymous.
37. Learned Senior Counsel for the third respondent further submitted that when the Petitioner is a practicing Advocate of this Court for so many years, she has not even bothered to find out the existence and the whereabouts of the purported advocate "Mrs. Hafeeza Begum". "Mrs.Hafeeza Begum". The purported writer of the pseudonymous letter dated 6.10.2009 has not yet come forward, either before the authorities of the Trust or this Court, for redressal of any grievance. According to him, it was incumbent on the part of the Petitioner to approach this Court, with clean hands, by bringing the so-called "Mrs. Hafeeza Begum" before this Court. Instead, the Petitioner has rushed to this Court, on the basis of those fictitious anonymous and pseudonymous letters. According to the third respondent, the petitioner's single-point agenda is to become the Secretary of the Trust and take control of the Trust.
38. Referring to the letters enclosed in the typed set of papers, Learned Senior Counsel for the third respondent submitted that Mr.Hameed Ahmed Sayeed, a member of the Executive Council, who is also the younger brother of the Petitioner, on receiving the notice of the Executive Council Meeting to be held on 11.01.2010, for the purpose of appointing a Secretary to the 1st Respondent Trust, immediately wrote a letter, dated 5.1.2010, to the 2nd Respondent and requested him to have "an informal get-together" of the Executive Council Members, to discuss amongst themselves, regarding who should be appointed as Secretary. As Mr.Hameed Ahmed Sayeed is the brother of the Petitioner, the motive behind this request was quite obvious. In response, the 2nd Respondent, by his letter. dated 6.1.2010 replied, stating that such "informal consultations" and lobbying on the eve of an appointment to the post of Secretary, as suggested by the Petitioner's brother, is against the bye-laws of the 1st Respondent-Trust and that appointment to the post of Secretary must be done in a truly democratic manner. According to him, the sequence of events clearly shows that the Petitioner wanted to become the Secretary of the 1st Respondent Trust.
39. Learned Senior Counsel for the third respondent submitted that the petitioner's motive is also evident from the fact that after the extension of the interim orders on 6.7.2010 in M.P.No.3 of 2010, the Petitioner's brother Mr.Hameed Ahmed Sayeed proposed her candidature in the election held subsequently, for the post of "Secretary" of 1st Respondent Trust in the Executive Committee meeting on the same day, in the evening. However, she could not get her name seconded by any of the other members present. The present new "Secretary" Mr.T.Rafeeq Ahmed, has been elected as the "Secretary" of the 1st Respondent Trust. Thus, it could be inferred that the Petitioner's acts were all motivated by her own desire to become the Secretary. He also submitted that after the interim injunction was granted by this Court, there was no anonymous and pseudonymous letters against any respondents and this only strengthens the inference that the anonymous/pseudonymous letters were written only with a specific motive and objective to scandalise others from becoming Secretary to the Trust and that she could achieve her objective and thereafter, the evil campaign ceased. According to the Learned Senior Counsel, the allegations made in her affidavit are based purely on surmises and conjectures.
40. Learned Senior Counsel submitted that the 2nd Respondent has bonafidely taken steps to ascertain the authenticity of the letters through Postal Department and subsequently informed the Petitioner also in writing, by his letter dated 1.1.2010, about the result of his verification and the Postal Department's endorsement stating that "No such person" resides in the address given in the complaint. He therefore submitted that the Petitioner cannot claim that the enquiry or ascertainment made by the 2nd Respondent through the Postal Department is also vitiated. Maintainability of the writ petition is also questioned on the same lines, as made by the second respondent.
41. According to the Learned Senior Counsel, first of all, there is no complainant in the eye of law, against the third respondent. Further the Supreme Court's guidelines in Vishaka V. State of Rajasthan (AIR 1997 SC 3011) are in respect of sexual harassment of working women. Referring to Paragraphs 6 and 7 of the guidelines of the Supreme Court in Vishaka case, he submitted that a complaint by a victim is a must for proceeding further and in the instant case, when there was no complainant at all, and no prima facie case of sexual harassment has even been alleged or made out, the question of sexual harassment does not arise. He therefore submitted that the guidelines made in Vishaka's case do not apply to the facts of this case.
42. Learned counsel for the third respondent further submitted that though the Petitioner has claimed to have "deeply interested in the welfare of the students and staff of the institutions", the letter of petitioner's brother, dated 05.01.2010 and the subsequent conduct of the Petitioner and her brother on 6.7.2010 would clearly disclose her motive.
43. Learned Senior Counsel for the third respondent has denied the allegation of bias and submitted that the second respondent has ascertained the genuineness of the letters by sending registered letters through a Government agency, Postal Department, to all the so-called writers of the pseudonymous letters. These registered letters were returned by the Postal Department with the endorsement "No such person". Even one of the letters dated 6.10.2009 purported to have been written by an alleged lady "advocate", "Mrs Hafeeza Begum" was also fake. He further added that when there are neither proper complaints nor complainants in existence and when no case of sexual harassment has been made out from the anonymous and pseudonymous letters, no purpose would be served by constituting any "enquiry committee" on the basis of such anonymous and pseudonymous letters.
44. Reiterating the averments made in the counter affidavit filed by the fourth respondent, Mr.A.L.Somayaji, Learned Senior Counsel submitted that the Writ Petition, which seeks to quash a private communication, i.e. one from the Chairman of the 1st Respondent Trust which is a private body, to the Petitioner, who is a member thereof, is not all maintainable and therefore liable to be dismissed on this ground alone. He submitted that by mere impleading Respondents 5 to 7, without claiming any reliefs against them, itself shows they have been impleaded to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, to settle a personal dispute.
45. Learned Senior Counsel for the fourth respondent submitted that the writ petition has been filed against the fourth respondent by the Petitioner, purely out of personal enmity, hatred and animosity and not, "in the interest of the girl students and the staff, including teaching staff studying and working in the institution administered by the 1st Respondent Trust". According to him, the fourth respondent belongs to a very well-reputed and highly respected Muslim family. He is the youngest son of the late Hon'ble Mr.Justice Basheer Ahmed Sayeed, a former Judge of this Court, the sole Founder of The Southern India Education Trust (S.I.E.T.) and its Women's College, established in 1955, and named after him, and now known as the "Justice Basheer Ahmed Sayeed College for Women" in his memory and honour. He submitted that the fourth respondent is a Barrister.
46. Learned Senior Counsel for the fourth respondent further submitted that the 4th respondent has been a Member of the Executive Council of the Southern India Education Trust, founded by his late father, for the last 20 years, ever since 1990. He has been an Executive Committee Member of the Baitulmal Tamil Nadu, a charitable organisation dedicated to helping the poor, needy and destitute. A member of "INDIA", an Association for the promotion of Communal amity and secularism" whose Patron is the Governor of Tamil Nadu and from 2006 onwards, he is the Correspondent of the Justice Basheer Ahmed Sayeed College for Women. He is also the Correspondent of the Justice Basheer Ahmed Sayeed Memorial Matriculation Higher Secondary Boys School ever since March 2003.
47. Learned Senior Counsel for the fourth respondent submitted that inspite of her being the Joint Secretary, an Office-bearer of the 1st Respondent Trust, she has cared to attend only two out of twenty-five Executive Council meetings held over the past four and a half (4=) years from 01.01.2006 and that fact would itself show, that she has no concern for the "interest of the girl students and the staff, including teaching staff, studying and working in the institutions administered by the 1st Respondent Trust, as claimed in this writ petition.
48. Learned Senior Counsel for the fourth respondent further submitted that one of the anonymous and pseudonymous letters filed by the Petitioner in this writ petition makes a suggestion that "a lady Correspondent should be appointed". And out of these two Executive Council meetings which the Petitioner attended, one was a special meeting held on 5.12.2009, in relation to the appointment of Correspondent for the College and the other meeting held on 6.7.2010, was in relation to the appointment of the Secretary of the 1st Respondent S.I.E.T. Trust. In both these items, she had personal interest. According to the 4th respondent, the Petitioner's main agenda was to become either the Secretary of the 1st Respondent S.I.E.Trust or the Correspondent of the College and gain control over the same and that is why, the Petitioner has filed this Writ Petition, using anonymous and pseudonymous letters to achieve her object.
49. According to Learned Senior Counsel, out of her personal animosity, hatred and ill-will towards the fourth respondent and with a view to force him to quit the post of Correspondent, the petitioner has been frequently trying to find fault in the running and administration of the College, at every stage. The anonymous and pseudonymous letters, containing false, wild and defamatory allegations appear to have been orchestrated by vested interests. There are absolutely no bonafides in the above Writ Petition and it is tainted with malafides.
50. Learned Senior Counsel further submitted that the petitioner has filed this writ petition on the basis of some anonymous and pseudonymous letters, casting aspersions, indulging in character assassination and making vulgar remarks in bad taste against the fourth respondent and his wife, who is a school-teacher and against the 3rd Respondent, without any evidence. The anonymous and pseudonymous letters relied on by the Petitioner would themselves disclose that the scandalous allegations made therein, would not amount to any "sexual harassment". The very first of the anonymous letters filed, is a very vulgar one, against the then Principal of the Women's College, who has since retired from service and has no relevance to this writ petition.
51. Placing reliance on Divine Retreat Centre v. State of Kerala, in particular, Paragraphs 54 to 57, he submitted that even in a case, where an anonymous petition is sent directly in the name of a learned Judge of a High Court in categorical terms the Supreme Court held that the High Court ought not to have entertained such a petition, for taking the same on file, under Sec. 482 of the Criminal Procedure Code.
52. Arguments were also advanced by the Learned Senior Counsel that the guidelines issued by the Supreme Court in Vishaka's case are applicable only to Government or establishments owned and controlled by the Government or private establishments, who come within the purview of Industrial Employment Standing Orders Act, 1946, and private educational institutions, would not come under the purview of the abovesaid judgment. It is also submitted that the judgment in Vishaka's case does not mandate setting up of a permanent committee, in every educational institution, and depending upon the facts and circumstances of each case, the management of an educational institution can enquire into any complaint either through the concerned school or college committee or if the allegations relate to a member of the committee itself, a decision can be taken either to appoint a separate committee to enquire into such complaint or not. According to the Learned Senior Counsel, the complaint mechanism available in the educational institutions of SIET is adequate and that there is no need to constitute a permanent committee, which is a requirement in government or other establishment as stated supra. According to him, constitution of a committee is not even contemplated under the under the provisions of the Tamilnadu Prohibition of Harassment of Women Act, 1998.
53. By way of reply, Mr.G.Rajagopalan, Learned Senior Counsel for the petitioner submitted that the S.I.E.T. Women's College is an aided college and in any event the High Court under Article 226 of the Constitution of India, can issue directions to any person and that he need be an authority under Article 12 of the Constitution of India and so long as the 1st Respondent is a place of work and when there are certain allegations, relating to sexual harassment, that is more than enough for this Court to invoke the Judgement of the Supreme Court and issue suitable directions, by setting aside the impuged communication.
54. Learned Senior Counsel for the petitioner submitted that the affairs of the trust and internal politics, if any therein, have no relevance to the facts of this Writ Petition and the mere fact that there are cases between the petitioner and respondents is not the sole ground to decline the relief. He further submitted that the observation of the Supreme Court in Bajanlal's case [AIR 1992 SC 604 Para 114] is directly applicable to the facts of the case.
55. He denied the contention that the petitioner, with the view to take over the management of the 1st Respondent, trust has invoked the jurisdiction of this Court. According to him, the allegation made by the 4th Respondent that anonymous letters have been instigated, have no basis and specifically denied.
Heard the Learned Senior Counsel for the parties and perused the materials available on record.
56. Before adverting to the rival contentions made in this writ petition, let me first consider the landmark judgment made in Vishaka v. State of Rajasthan reported in 1997 (6) SCC 241, wherein the Supreme Court, considering the rights of the working women, against sexual harassment in work places, their protection and enforcement of Fundamental and Human rights and after taking note of the International Convention and Norms, at Paragraph 16 of the judgment, held as follows:
In view of the above, and the absence of enacted law to provide fro the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution. The Supreme Court in the above reported judgment, has framed guidelines and set out the duties of the employer and other persons, working in the work place and the preventive steps to be taken about the complaint mechanism, etc., and at Paragraph 17, framed guidelines, which are considered and dealt with in the latter paragraphs of this judgment.
57. Let me now address the preliminary objection as to the maintainability of the present writ petition on the ground that the institutions are not aided by the Government.
(a) In Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others reported in 1976 (2) SCC 58, the appellant-Executive Committee was a degree college in the district of Muzaffarnagar registered under the Societies Registration Act, 1860, as an institution for imparting education. The affairs of the college were managed by the Executive Committee of the Vaish College. The college was affiliated to the Agra University and consequently, the College was agreed to be governed by the provisions of the Agra University Act and the statutes and ordinances made thereunder. With the establishment of the Meerut University, the Vaish College got affiliated to the Meerut University. The College Committee terminated the services of a member of the College, by passing a resolution. A suit was filed in the District Munsif Court, challenging termination. The defence was that the Executive Committee was not a statutory body and not bound under the University Act. The suit was dismissed, holding that the Executive Committee was not a statutory body and not bound by the statutes. On appeal, the first Additional Civil and Sessions Judge, Muzaffarnagar, reversed the decision. In the second appeal, a learned Single Judge referred the case to Full Bench for framing the following issues, "Can the civil Court grant the relief of injunction in view of the facts and circumstances of the present case?". A Full Bench of the Allahabad High Court held that the Executive committee of Vaish college, being a statutory body, is bound by the provisions of the University and the statutes made thereunder. The Full Bench held that the termination of the members, without obtaining prior approval, as illegal. The Committee, which took the matter on appeal before the Supreme Court, inter alia contended that it was not a statutory body and therefore, the termination of the services of the respondent-employee would be governed by the usual master and servant relationship. The Supreme Court, while considering the distinction between a body, which is created by a Statute and a body, which after having come into existence is governed in accordance with the provisions of the Statute, held that, the Executive Committee is not a statutory body. The issue as to whether a Writ Petition is maintainable against an institution, discharging public duty of imparting education, was not a question posed before the Supreme Court. The question adjudicated was, whether an Executive Committee of a private college was a statutory body or not, merely because, it was affiliated by the University or regulated by the University act or the Statutes thereunder.
(b) In N.K.Ramiah v. Yadava Kalvi Nithi. Regd. Socy., reported in AIR 1985 Mad. 211, the issue was whether a private college committee consisting of seven members nominated by the Principal of the College, two senior most professors of the College and one nominated by the University, to which, it was affiliated and over whose affairs the Government had no control and the institution not being a creature of a statute, was an 'authority' within the meaning of Article 12 of the Constitution of India and amenable to Writ jurisdiction of the High Court. In the above said judgment, this Court held that, Merely because the College Committee was constituted by reason of the provision under Section 11 of the Tamil Nadu Private Colleges (Regulation) Act and in the manner provided by Rule 8 of the Rules framed under Section 53 of the Act would not mean that it was an instrumentality or agency of the Government, so as to be called an 'authority' within the meaning of the Article."
(c) In Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R.Rudani and others reported in 1989 (II) LLJ 324, the appellant was a Science College run by a Public Trust, affiliated to Gujarat University. The dispute between the University Area Teachers Association and the University about implementation of pay scales was referred to the Chancellor of the University for decision. Instead of implementing the award of the Chancellor as accepted by the University and the State Government, the Trust served notice of termination on 11 teachers on the ground that they were surplus and applied to the University for permission to remove them. Since the Vice-Chancellor did not grant permission, the Trust took a decision to close down the college. Accordingly, the affiliation of the college was surrendered and that the college was closed without approval of the University. The services of all academic staff were terminated and the terminal benefits were not paid. A Writ petition was filed claiming terminal benefits and arrears of salary and that the writ petition was allowed. Hence, SLP was filed by the appellant-Trust. While considering the issue as to whether a Writ Petition would lie against the Management and College, a private body, the Supreme Court, at paragraphs 20 and 22, held as follows:
"The words "any person or authority" used in Article 226 are therefore not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied.
Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by charter, common law, custom or even contract. Judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should no come in the way of granting that relief under Article 226."
While considering the objection regarding maintainability of a Writ Petition filed against the appellant, the Supreme Court, at Paragraphs 14 and 15, held as follows:
"There is no plea for specific performance of contractual service. The teachers are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and the arrears of salary payable to them. If the rights are purely of a private character, no mandamus can issue. If the management of the college is purely a private body, with no public duty, mandamus will not lie. These are two exceptions to mandamus. Once these are absent and when the party has no other equally convenient reedy, mandamus cannot be denied. To the Trust managing the affiliated college, public money is given as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Governmental Institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating university. Their activities are closely supervised by the University authorities. Employment in such Institution is not devoid of any public character. So are the service conditions of the academic staff. Their service conditions are not purely of a private character and such service conditions has super-added protection by university decisions creating a legal right duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused.
(d) In Miss Payal Gupta v. Lt. Governor of Delhi & others, 1994 III AD (Delhi) 1119, a Division Bench of the High court dealt with the case of a student who was denied of admission by a private school. While dealing with the objections regarding maintainability of the writ petition, the Division Bench held as follows:
"The question whether a writ could lie against a recognised unaided school is no longer res integra. It was contended by Mr.Kaul that the Cambridge School was not a State and that it was run by a society registered under the Societies Registration Act. Jurisdiction of this Court under Article 226 of the Constitution is not confined to the authority which is a State within the meaning of Article 12 of the Constitution. In Kuldip Mehta Vs. Union of India and others, 1993 (2) Delhi Lawyers 196, this Court has taken the view that Article 226 also speaks of directions and orders which can be issued to any person or authority. In that case a writ was issued against a public limited company which had nominees on its Board of Directors from the National Textile Corporation Limited, a Government company. In Dwarka Nath Vs. Income-tax Officer, Special Circle D Ward, Kanpur and another, [AIR 1966 SC 81], referring to the scope of Article 226 of the Constitution, the court observed as under:
"This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. it can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. In enables the High Courts to mould the reliefs to meet the peculiar and complicated requirement of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicitly in the article and others may be evolved."
(e) In Shri V.S.Rahi v. The Lt. Governor of Delhi & others [1994 IV AD (Delhi) 1190], A Division Bench of the Delhi High Court considered the question as to whether a teacher working in a private school can maintain a writ petition for pension. At Paragraph 5, the Division Bench held as follows:
"Primarily two questions require to be considered; (i) Whether the petitioner can invoke the writ jurisdiction to seek a relief which is certainly against a private school; and (ii) Whether petitioner is entitled to the benefit of pension as contended by him. The first question need not detain us long in view of the decision of the Supreme Court in Miss Raj Soni Vs. Air Officer in charge Administration and Another, [1990 (3) SCC 261] in the said case, the Supreme Court entertained a petition filed by a teacher under Article 32 of the Constitution, against a private school which was not receiving any aid, to enforce the provisions of the Act and the Rules, and granted her the benefit of the age of retirement as 60 years, while, under the rules of the school she was to retire at the age of 58 years."
(f) Rakesh Gupta v. State of Hyderabad reported in AIR 1996 AP 413, the Division Bench of the Andra Pradesh High Court has considered the scope and extent of power under Article 226 of the Constitution of India and use of the word or expression "any person or authority" occurring under Article 226 of the Constitution of India. While discussing the scope of Article 226, the Court held as follows:
"the language used in Art. 226 of the Constitution of India shows, that the Court has got power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories, directions, orders or writs, including writs in the nature of Habeas Corpus, Mandamus, Prohibition, quo warranto and Certiorari or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. The words "to any person or authority" and the words "for the enforcement of any of the rights conferred by Part III and for any other purpose" leave no scope to question the authority of the Court to issue a writ even to a private person; whether it is a living being or a legal entity as a juridical person. .....It is, however, not unknown that exceptions have been made by the Courts and such exceptions are found justifiable for reasons of the conduct of the parties which on the one hand appeared to affect only a private law, but on the other hand has effect upon the action in rem."
The Division Bench of the Andra Pradesh High Court further observed as follows:
"The word 'authority' in Article 226 of the Constitution of India is not restricted to the same meaning as the words 'other authorities' should receive in the definition of the 'State' in Article 12 of the Constitution of India. The former must receive a liberal meaning. The latter is relevant only for the purpose of enforcement of fundamental rights. The High Court's power under Article 226 of the Constitution, however, unlike the power of the Supreme Court under Article 32 of the Constitution is more pervasive in the sense that it can issue writs for enforcement of fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on that body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party, no matter by what means the duty is imposed; and The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartments. It should remain flexible to meet the requirements of various circumstances.
(g) In K.Krishnamacharyulu v. Sri Venkateswar Hindu College of Engineering reported in 1997 (3) SCC 571, the appellant and six others were appointed on daily wages to the post of Lab Assistant as non-teaching staff in the respondent-private college. The Writ Petition and Appeal, seeking equal pay were dismissed. Aggrieved by the same, they moved the Apex Court. The question which came up for consideration before the Supreme Court was when there were no statutory rules issued regarding pay scales to be fixed on par with the Government employees and the private Institution, being not in receipt of any grant-in-aid, whether the Writ Petition under Article 226 of the Constitution is maintainable? The Supreme Court, at Paragraph 4, answered the question as follows:
"It is not in dispute that executive instructions issued by the Government have given them the right to claim the pay scales so as to be on a par with the government employees. The question is when there are no statutory rules issued in that behalf, and the institution, at the relevant time, being not in receipt of any grants-in-aid; whether the Writ Petition under Article 226 of the Constitution of India is not; maintainable? In view of the long line of decisions of this Court holding that when there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education get an element of public interest in the performance of their duties. As a consequence, the element of public interest requires regulation of the conditions of service of those employees on a par with government employees. In consequence, are they also not entitled to the parity of the pay scales as per the executive instructions of the Government? It is not also in dispute that all the persons who filed the Writ Petition along with the appellant had later withdrawn from the Writ Petition and thereafter the respondent Management paid the salaries on a par with the government employees. Since the appellants are insisting upon enforcement of their right through the judicial pressure, they need and seek the protection of law. We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The Private Institutions cater to the need of providing educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of Public Interest is created and the Institution is catering to that element the teacher, being the arm of the Institution, is also entitled to avail of the remedy provided under Article 226 the Jurisdiction part is very wise. It would be a different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit which is available to others. Accordingly, we hold that the Writ Petition is maintainable. They are entitled to equal pay so as to be on a par with government employees under Article 39(d) of the Constitution."
(h) In P.A.M. Sundaravel v. Chief Educational Officer and two others, reported in 1998 Writ L.R. 565, a student sought for a Mandamus directing the respondents to select him for 11th Standard computer course during the year 1997-98 in a Private School recognised by the State Government. One of the objections was to the maintainability of the Writ Petition against the private institution. After considering the element of public duty involved in imparting education, this Court, at Paragraphs 8 and 10, held as follows:
"The school is a recognised one and is also governed by relevant Statute. Its activities are also controlled by first respondent, though the actual management is by the Board as per its own Bylaws. The School, while discharging its duties as per statute, and that too, while it is imparting education to children at large, cannot be said as not discharging a public duty. Though it is a private institution, it discharges a public function governed by relevant statutes, subject to the control of the Statutory authorities. Except for the Computer course, financial aid is also received from Government.
A writ can be issued the respondents and the first respondent is duty bound to see that the petitioner's son is not denied admission as he is legally entitled to the same."
(i) The Division Bench of this Court in John Paulraj A.P. v. CBSE, Chairman, New Delhi, reported in 1999 (III) LLJ (Supp.) 628, considered a case as to whether a Writ Petition filed against an unaided educational institution can be brought within the ambit of Article 12 of the Constitution of India. In the said case, the appellant was terminated from service, without proper reasons. A learned single Judge, who adjudicated the validity of the said order, dismissed the Writ Petition, agreeing with the contention of the School that an unaided private school is not amenable to Writ jurisdiction, since it is not a State or instrumentality of the State within the ambit of Article 12 of the Constitution of India. Before the appeal, it was contended inter alia that availing grant or aid from the Government cannot by itself, be a deciding factor for holding that a Writ Petition as maintainable. Taking into consideration, the nature of public duty, i.e., imparting of education to the students at large, as envisaged under Article 41 of the Constitution of India and after considering a catena of decisions, the Division Bench held that a Writ would lie against unaided private educational institution also, if an element of public interest and a corresponding public duty is attracted in the proceedings sought to be challenged in such Writ Petition.
(j) A passage from the judgment in Unni Krishnan, J.P. v. State of Andra Pradesh reported in AIR 1993 SC 2179, extracted in John Paulraj's case, would be useful and the same is reproduced hereunder:
"The fact that these institutions perform an important public function coupled with the fact that their activity is closely intertwined with governmental activity, characterises their action as 'State action'. At the minimum, the requirement would be to act fairly in the matter of admission of students and probably in the matter of recruitment and treatment of its Employees as well.
The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an; independent activity. It is an activity supplemental to the principal activity carried on by the State."
(k) In Ramdeo Baba Kamala Nehru Engineering College v. Sanjay Kumar reported in 2002 (10) SCC 487, students asked for refund of tuition fees and caution deposit paid by them. The same was denied and they preferred a Writ Petition. The High Court allowed the same, directing the appellant-Engineering College to refund the amount. Overruling the objections raised by the College that the High Court should not entertain a Petition under Article 226 of the Constitution of India and declaring the law, the appellant-College is amenable to Writ jurisdiction, the Supreme Court, at paragraph 5, held that, "The respondent had sought admission against a payment seat. In the event of the admission being cancelled at the behest of either side, the caution money ad the tuition fee were liable to be refunded subject to the permissible deductions. We do not deem it appropriate to uphold the technical plea of the appellants and drive the respondent student to the need of filing a civil suit. The view taken by the High Court is just and equitable and therefore need not be interfered with."
(l) In G.Bassi Reddy v. International Crops Research Instt., reported in AIR 2003 SC 1764, the Supreme Court considered as to whether the International Crops Research Institute (ICRISAT), is a state or an authority amenable to the Writ Jurisdiction under Article 226. While considering the object of setting up the above said research centre, the Supreme Court observed as follows:
The object of setting up ICRISAT was to help developing countries in semi-arid tropics to alleviate rural poverty and hunger in ways that are environmentally sustainable. The developing countries include India, parts of south-Asian, sub-Saharan and South and Eastern Africa and parts of Latin America. The object was sought to be achieved by research and development of scientific technologies which could improve the quantity and quality of sorghum (bajra), pearl and finger millet, pigeon peas, chick peas and ground nut. The facts of the above reported case are that ICRISAT was staffed by persons from 22 nations, including India who work in Asia, Africa and Latin America. Insofar as the administration and governance is concerned, a memorandum of agreement was entered into between the Government of India and Ford Foundation (acting on behalf of the Consultative Group) on 28th March 1972, by which, the Institute shall be established in India as an autonomous, international philanthropic, non-profit, research, educational, and training organisation. The Institute has to be administered by a Director, who shall be selected by the Governing Board. Besides, the Board shall be responsible for development and/or approval of the Institute's programmes and policies under which the institute operates and it shall be responsible for selection and employment of the Director, and shall approve the appointment of the senior staff members on the recommendation of the Director. In addition to that, under Clause 6(2) of the agreement, the Governing Board was given authority under the agreement to establish the terms and conditions of employment for junior scientists, technicians, clerical, administrative and operational support personnel. The conditions of employment were expected "to more nearly approximate accepted norms of the host country, with such modifications as may be necessary. Guidelines known as Personnel Policy Statements relating to the services of the personnel were also formulated by ICRISAT and procedures were framed regarding disciplinary action. The appellant before the Supreme Court was issued with a show cause notice, calling for explanation for certain acts of misconduct. Following an enquiry, he was terminated from service. When the said order was challenged, it was opposed on the ground of maintainability. Testing the maintainability of the writ petition on the principles as to whether the said institution was financially, functionally or administratively dominated by or under the control of the Government and whether the contract stated supra is pervasive or merely regulatory, the Supreme Court on the facts of this case, found that ICRISAT is not a State or an authority, as it was neither the wing of the Government nor it was accountable to the Government. In such context, the Supreme Court held that "ICRISAT is not a State".
(m) In Islamic Academy of Education v. State of Karnataka reported in AIR 2003 SC 3724, the petitioners therein were mostly unaided professional educational institutions, both minority and non-minority. It was inter alia contended that the private unaided professional educational institutions, had been given complete autonomy not only as regards admission of students, but also determination of their own fee structure. It was also contended that these institutions could fix their own fee structure, which could include a reasonable revenue surplus for purposes of development of education and expansion of the institution, and that so long as there was no profiteering or charging of capitation fees, there could be no interference by the Court. Per contra, on behalf of the Union of India, various State Governments and some students, who sought to intervene, it was submitted that right to set up and administer an educational institution was not an absolute right, and this right is subject to reasonable restrictions and that, this right is subject (even in respect of minority institutions) to national interest. It was further submitted that imparting education was a State function, but, due to resources crunch, the States were not in a position to establish sufficient number of educational institutions. Though the issue was with regard to fee structure, the Supreme Court also considered as to whether the Government is denuded of its power to lay down any law, just because the Institutions were once recognised or affiliated to the examining body. At Paragraphs 217 and 219, the Supreme Court, held as follows:
"Although the minorities have a right to establish institutions of their own choice, they admittedly do not have any right of recognition or affiliation for the said purpose. They must fulfill the requirements of law as also other conditions which may reasonably be fixed by the appropriate Government or the University. (para 217) It cannot be said that once recognition has been granted, no further restriction can be imposed. There exist some institutions in this country which are more than a century old. It would be too much to say that only because an institution receives recognition/affiliation at a distant point of time the appropriate Government is denuded of its power to lay down any law in imposing any fresh condition despite the need of change owing to passage of time. Furthermore, the Parliament or the State Legislature are not denuded of its power having regard to restrictions that may satisfy the test of Clause (6) of Article 19 of the Constitution of India or regulations in terms of Art. 30 depending upon the national interest/public interest and other relevant factors. However, the State/University while granting recognition or the affiliation cannot impose any condition in furtherance of its own needs or in pursuit of the Directive Principles of State Policy. (para 218 and 219)"
(n) In Sushmita Basu v. Ballygunge Siksha Samity and others in 2004 (4) LLN 195 (SC), the teachers of a recognised Private School filed a Writ Petition for implementation of the third pay commission. The management, though implemented the recommendations of the third pay commission in the sense that the salaries of the teachers were hiked in terms of the said report, the institution refused to give retrospective effect to the enhancement. In otherwords, the institution refused to give effect to the recommendations of the Third Pay Commission with effect from 1st January 1988, as recommended by the Commission and as implemented by the Government. Though the Supreme Court, accepted the views expressed earlier in K.Krishnamacharyulu and others v. Sri Venkateswara Hindu College of Engineering and another reported 1997 (3) SCC 571, that interference under Article 226 of the Constitution of India for issuing the Writ against the Private Institution like the first respondent therein would be justified if Public law element is involved and in Private law remedy, no Writ Petition would lie and Writ of Mandamus cannot be issued to recognised Private School to fix the salaries to teaching and non-teaching staffs to remove all the anomalies. The Supreme Court, on principle, has affirmed the dictum that Writ Petition would lie against Private Educational Institution, but disallowed the claim of the teachers for giving retrospective effect to the pay fixation.
(o) In P.A. Inamdhar v. State of maharastra reported in 2005(6) SCC 537, the Supreme Court after considering a catena of decisions dealt with the right of educational institution in fixing the fee structure and its autonomy, at para 89 held that "89. Education, accepted as a useful activity whether for charity or for private is an occupation. Nevertheless, it does not cease to be a service to Society. And even though an occupation, it cannot be equated to a trade or a business".
(p) In Binny Ltd.,v. Sadasivan reported in 2005 (6) SCC 657, the maintainability of a Writ Petition against private employers, was the moot question. The Supreme Court, after considering a catena of decisions, held that a Writ of Mandamus or remedy under Article 226 of the Constitution of India, though pre-eminently a public law remedy, is available against a private body or a person, if (a) such private body is discharging public function, (b) a decision sought to be corrected or enforced is in discharge thereof and (c) public duty imposed is not of a discretionary character. The Supreme Court further held that the scope of mandamus is determined by the nature of duty to be enforced rather than the identity of the authority, against whom it is sought. While explaining what is public function, the Apex Court, held that a body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies, therefore exercise public function, when they intervene or participate in social or economic affairs in the public interest. The Dictum of the Supreme Court is explained in Paragraphs 9 to 11 and 29 and the same is extracted hereunder:
"9. The superior courts supervisory jurisdiction of judicial review is invoked by an aggrieved party in myriad cases. High Courts in India are empowered under Article 226 of the Constitution to exercise judicial review to correct administrative decisions and under this jurisdiction the High Court can issue to any person or authority, any direction or order or writs for enforcement of any of the rights conferred by Part III or for any other purpose. The jurisdiction conferred on the High Court under Article 226 is very wide. However, it is an accepted principle that this is a public law remedy and it is available against a body or person performing a public law function. Before considering the scope and ambit of public law remedy in the light of certain English decisions, it is worthwhile to remember the words of Subba Rao, J. expressed in relation to the powers conferred on the High Court under Article 226 of the Constitution in Dwarkanath v. ITO, This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression nature, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary from of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.
10. The writ of mandamus lies to secure the performance of a public or a statutory duty. The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities. Originally, the writ of mandamus was merely an administrative order from the Sovereign to subordinates. In England, in early times, it was made generally available through the Court of Kings Bench, when the Central Government had little administrative machinery of its own. Early decisions show that there was free use of the writ for the enforcement of public duties of all kinds, for instance against inferior tribunals which refused to exercise their jurisdiction or against municipal corporations which did not duly hold elections, meetings, and so forth. In modern times, the mandamus is used to enforce statutory duties of public authorities. The courts always retained the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It is also to be noticed that the statutory duty imposed on the public authorities may not be of discretionary character. A distinction had always been drawn between the public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. In the Administrative Law (9th Edn.) by Sir William Wade and Christopher Forsyth (Oxford University Press) at p.621, the following opinion is expressed:
A distinction which needs to be clarified is that between public duties enforceable by mandamus, which are usually statutory, and duties arising merely from contract. Contractual duties are enforceable as matters of private law by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. They are not enforceable by mandamus, which in the first place is confined to public duties and secondly is not granted where there are other adequate remedies. This difference is brought out by the relief granted in cases of ultra vires. If for example a minister or a licensing authority acts contrary to the principles of natural justice, certiorari and mandamus are standard remedies. But if a trade union disciplinary committee acts in the same way, these remedies are inapplicable: the rights of its members depend upon their contract of membership, and are to be protected by declaration and injunction, which accordingly are the remedies employed in such cases.
11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the Government to run industries and to carry on trading activities. These have come to be known as public sector undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between public functions and private functions when they are being discharged by a purely private authority. A body is performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (5th Edn.) by de Smith, Woolf & Jowell in Chapter 3, para 0.24, it is stated thus:
A body is performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides public goods or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including rule making, adjudication (and other forms of dispute resolution); inspection; and licensing.
Public functions need not be the exclusive domain of the State. Charities, self-regulatory organisations and other nominally private institutions (such as universities, the Stock Exchange, Lloyds of London, churches) may in reality also perform some types of public function. As Sir John Donaldson, M.R. urged, it is important for the courts to recognise the realities of executive power and not allow their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted. Non-governmental bodies such as these are just as capable of abusing their powers as is Government.
29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsburys Laws of England, 3rd Edn., Vol. 30, p.682, 1317. A public authority is a body, not necessarily a county council, municipal corporation or other local authority, which has public or statutory duties to perform and which perform those duties and carries out its transactions for the benefit of the public and not for private profit. There cannot be any general definition of public authority or public action. The facts of each case decide the point."
(q) In Zee Telefilms Ltd., v. Union of India reported in AIR 2005 SC 2677, the Supreme Court, while observing that Article 12 of the Constitution of India, must receive a purposive interpretation, at Paragraphs 75 and 76, held as follows:
"75. Article 12 must receive a purposive interpretation as by reason of Part III of the Constitution a charter of liberties against oppression and arbitrariness of all kinds of repositories of power have been conferred - the object being to limit and control power wherever it is found. A body exercising significant functions of public importance would be an authority in respect of these functions. In those respects it would be same as is executive government established, under the Constitution and the establishments of organizations funded or controlled by the Government. A traffic constable remains an authority even if his salary is paid from the parking charges inasmuch as he still would have the right to control the traffic and anybody violating the traffic rules may be prosecuted at his instance.
76. It is not that every body or association which is regulated in its private functions becomes a 'State'. What matters is the quality and character of functions discharged by the body and the State control flowing therefrom."
(r) In Lt. Governor of Delhi v. V.K.Sodhi reported in AIR 2007 SC 2885, the Supreme Court considered as to whether State Council of Education, Research and Training (SCERT) is a State or not. At Paragraphs 11, 13 and 14, the Apex Court held as follows:
"The State Council of Education, Research and Training (SCERT) is not State or other authority, within meaning of Article 12. The two elements, one, of a function of the State, namely, the co-ordinating of education and the other, of the Council (SCERT) being dependant on the funding by the State, satisfied two of the tests indicated to constitute 'State'. But, from that alone it could not be assumed that SCERT is a State. It has to be noted that though finance is made available by the State, in the matter of administration of that finance, the Council is supreme. The administration is also completely with the Council. There is no governmental interference or control either financially, functionally or administratively, in the working of the Council. SCERT, in addition to the operation autonomy of the Executive Committee, it could also amend its bye-laws subject to the provisions of the Delhi Societies Registration Act though with the previous concurrence of the Government of Delhi. The proceedings of the Council are to be made available by the Secretary for inspection of the Registrar of Societies as per the provisions of the Societies Registration Act. The records and proceedings of the Council have also to be made available for inspection by the Registrar of Societies. In the case of dissolution of SCERT, the liabilities and assets are to be taken over at book value by the Government of Delhi which had to appoint a liquidator for completing the dissolution of the Body. The creditors' loans and other liabilities of SCERT shall have preference and bear a first charge on the assets of the Council at the time of dissolution. This is not an unconditional vesting of the assets on dissolution with the Government. It is also provided that the provisions of the Societies Registration Act, 1860 had to be complied with in the matter of filing list of office-bearers every year with the Registrar and the carrying out of the amendments in accordance with the procedure laid down in the Act of 1860 and the dissolution being in terms of Sections 13 and 14 of the Societies Registration Act, 1860 and making all the provisions of the Societies Registration Act applicable to the Society. These provisions indicate that SCERT is subservient to the provisions of the Societies Registration Act rather than to the State Government and that the intention was to keep SCERT as an independent body."
(s) In L. Nageswaran v. State of T.N., reported in 2009 (1) MLJ 729, there was revision of fee structure in the middle of the academic year by a Matriculation School, managed by Bishop of Madras CSI Diocese. The primary objection was with regard to the maintainability of the Writ Petition. A learned Single Judge of this Court held that the Matriculation School, though minority in character, administered by Dioceses, is exercising a public function and as such, it is amenable to Writ jurisdiction.
(t) In Sendhilkumar v. Shri Angalamman College of Engg., & Technology reported in 2009 (3) MLJ 774, a dismissed non-teaching staff of a private unaided college run by a private trust, challenged the order of dismissal. The main objection of the college was that it does not get any aid from the Government and therefore, the Writ Petition filed against them is not maintainable. Following the decisions in Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R.Rudani and others reported in 1989 (II) LLJ 324, this Court has held that the entire educational institution as a whole should be held to be as one unit which discharges its public duty of imparting education to the students and therefore, there cannot be any distinction between teaching and non-teaching staff, while applying Article 226 of the Constitution of India. Holding that the Writ Petition as maintainable, this Court has set aside the impugned order.
(u) In The Governing Council of American College v. The Director of Collegiate Education, reported in 2009 (4) CTC 401, the issue before the Division Bench of this Court was whether an aided minority college is amenable to Writ jurisdiction. Following the guidelines in Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R.Rudani and others reported in 1989 (II) LLJ 324, and Secretary, Malankara Syrian Catholic College v. T.Jose reported in 2007 (1) SCC 386, the Division Bench, at Paragrahs 21 and 29, held as follows:
"21. At the outset, we wish to point out that the objection to the maintainability of the writ petition on the ground that the institution is a Society, does not hold water any more. Article 226(1) empowers this Court to issue directions, orders or writs to "any person or authority". Therefore even a Society is amenable to the writ jurisdiction, provided there is an element of public duty. In Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani [1989 (2) SCC 691], a Trust registered under the Bombay Public Trusts Act, was held amenable to the writ jurisdiction. It was held therein that when public money is paid as Government aid, the aided institutions discharge public functions and they become subject to the Rules and Regulations of the Affiliating University. Therefore, the Supreme Court opined that employment in such institutions is not devoid of any public character. Again in K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering [1997 (3) SCC 571], the Supreme Court held a writ filed even by the employees of unaided private educational institution as maintainable on the ground that the teachers get an element of public interest in the performance of their duties. Hence the contention that a writ against a Society is not maintainable, cannot be accepted as of universal application, especially since the institution in question in these appeals, receives grant-in-aid from the Government.
29. Thus, in Malankara, the Supreme court cleared all possible doubts, genuine or artificial, by holding in paragraphs 19 (iii) and 20 that any regulations to prevent exploitation or oppression of employees and any law intended to regulate the service conditions of employees of educational institutions, could not be construed as interfering with the right under Article 30(1). Therefore, the contention that an aided minority institution is not amenable to Article 226, especially in relation to the dismissal of a Principal, is just fanciful."
(v) After considering the scope of Article 226 of the Constitution of India and nature of the functions and duties performed by the private educational institutions and the decision in Executive Committee of Vaish Degree College (Three Judges), at Paragraph 79 of the judgment, has categorically held that, "79. The emphasis in this case is as to the nature of duty imposed on the body. It requires to be observed that the meaning of authority under Article 226 came to be laid down distinguishing the same term from Article 12. In spite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational institutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty."
58. Courts have consistently held that while exercising the equitable jurisdiction under Article 226 of the Constitution of India, it is necessary to examine as to whether, such an individual body or association or society etc., discharges public duty and if it is so, whether there is any pervasive control over the activity in the discharge of public duty. Imparting education is now well recognised as a public duty, taken up by the private institutions, duly recognised by the competent authorities, either under the Statute or the Government orders, issued from time to time, till a suitable legislation is made.
59. The contention of the respondents that the 1st respondent would not be amenable to writ jurisdiction, cannot be countenanced in view of the decisions of the Supreme Court for the limited purpose as to whether a writ petition is maintainable or not against a trust which runs educational institutions. Even if the educational institutions do not receive any grant from the Government, still they would be governed by the Acts and rules, framed by the Government and in such a view of the matter, the contentions to the contra cannot be accepted.
60. The further objection to the maintainability of the writ petition on the ground that what is sought for is to be quashed is only a internal correspondence i.e., a letter sent by the Chairman of the Executive Council to a member and that mere impleading the offical respondents 5 to 7, without there being any prayer against them and therefore, a writ would not lie, also cannot be accepted, for the reason that what is claimed by the petitioner is that the enquiry conducted by the Chairman of the Executive Council is not in accordance with the decision of the Apex Court in Vishaka's case and hence the challenge to the letter. As per Article 142 of the Constitution of India, the law laid down by the Supreme Court is the law of the land. When there is a complaint that the same has not been followed by or an educational trust person discharging public duties and when the High Court is approached under Article 226 of the Constitution of India, a writ petition cannot be rejected summarily. But it has to be adjudged on the facts and circumstances. Whether the enquiry conducted by the Chairman of the Executive Council is valid or not is the question to be decided on the facts and circumstances of this case, which would be dealt with in the latter paragraphs of this judgment. Yet another question to be decided in this case is whether anonymous and pseudonymous complaints without credible evidence can give rise to a cause for maintaining a writ petition.
61. In D.S.Grewal v. Vimmi Joshi reported in 2009 (2) SCC 210, the first respondent, a female was employed as Teacher in Army Public School and lateron she was appointed as principal. The appellant before the Supreme Court was the Chairman of the School and the other appellant was the Vice Chairman. It was alleged that the Vice-Chairman wrote a letter to respondent No.1 containing unpalatable expression. A complaint was preferred to the Principal. But no positive action was taken. It was also alleged that Vice-Chairman was making advances to her. The services of the respondent No.1, were terminated, on the basis of two anonymous complaints. A writ petition was filed by Respondent No.1, questioning the action taken on the basis of an anonymous complaint. She alleged sexual harassment by the Vice-Chairman and an interim order was passed. In the meanwhile, an enquiry was held. Respondent no.1 had participated. The contention of sexual harassment was denied. A Division Bench of the High Court of Uttranchal, found that it was a clear-cut case of sexual harassment of Respondent No.1 and therefore, directed the Secretary, Ministry of Defence, Government of India and the Chief of the Army Staff to take disciplinary action against two officers, as the case of sexual harassment from the contents of the letter and the admission by both the officers, followed the termination of the petitioner therein-Respondent No.1. A report was directed to be submitted before the Court. The review application filed by the officers were also dismissed. The order made in the review was not challenged. On the above facts, the Supreme Court, at Paragraphs 23 to 26, held as follows:
22. Before, however, a disciplinary proceeding is initiated in a case of this nature, a prima facie finding has to be arrived at as regards the role of the delinquent. It has been stated before us that the job of Col Hitendra Bahadur was merely to function as the Chairman in the absence of the regular Chairman.
23. It is not in dispute that no Complaint Committee has been constituted; no mechanism has been put in place for redressal of the complaint made by the victim. For one reason or the other Grewal failed and/or neglected to take appropriate action.
24. It is a matter of great regret that the army which is a disciplined organization failed to provide a complaint mechanism and ignored the decision of this Court which was bound to be given effect to in terms of Article 144 of the Constitution of India. A complaint committee as per `Vishakha' was constituted for the other teachers and the staff but evidently no complaint committee was constituted for entertaining a complaint of this nature. Even the purported disciplinary action initiated by the appellants does not provide a complete picture. A report was submitted but whether any further action has been taken or not is not known.
25. The High Court, in our opinion, without getting the matter enquired into could not have opined that it was a clear cut case of sexual harassment of the writ petitioner and on that basis directed initiation of a disciplinary action in the manner as has been done in paragraph 8 noticed (supra).
26. We, in modification, of the order passed by the High Court direct that as no complaint committee has been constituted, which was imperative in character, the High Court may appoint a Three Members Committee headed by a Lady and in the event it is found that the writ petitioner was subjected to sexual harassment, the report thereof may be sent to the army authorities for initiation of a disciplinary action against the appellants herein on the basis thereof. All the expenditures which may be incurred in this behalf may be borne by the Army Authorities.
62. In the above reported case, it could be seen that the victim of alleged sexual harassment herself came forward and hence the Supreme Court directed the matter to be enquired into by constituting a committee. Whereas in the instant case, the alleged victim is conspicuously not in existence. In the reported case, it was a Public School and Army, being a disciplined force was expected to have a complaint mechanism, as per the guidelines of the Supreme Court. For that matter it cannot be said that an education institution where women are working, there should not be any complaint mechanism, but whether even after making a preliminary enquiry, ascertaining that there was "no such" complainant in existence, whether an enquiry committee should be constitute is the issue.
63. In an unreported judgment in W.P.No.18868 of 1997 [The Tamil Nadu Village Health Nurses' Association, rep. by its Secretary v. The State of Tamil Nadu], the abovesaid association, through his Secretary, filed a writ petition, directing respondents 1 and 3 therein, to take appropriate action against the fourth respondent therein, with regard to sexual harassment in the work place, by following the directions of the Supreme Court in Vishaka's case. It was the specific case of the association that nurses were put to harassment and abuse from the Medical Officer, at Poyyur Sub-Primary Health Centre. It was also alleged that the said Medical Officer had made the Village Health Nurses to stand throughout the meetings and also wrapped their knuckles and screwed ears for minor mistakes and that he used to poke into their hips and waists. It was also alleged that during one of the meetings, the Village Health Nurses were asked to demonstrate the fundus test to locate the position of a 12 week foetus of a pregnant woman. The Medical Officer has ordered one Sector Health Nurse, who was pregnant to demonstrate the fundus test in front of male orderlies and others. As the said demonstration would necessitate them to disrobe to present the naked limbs to the gaze of all persons, they refused to do so and began to cry. Therefore, a written complaint of the above said harassment by the Medical Officer was prepared and signed by 12 Village Health Nurses and submitted to the Perambalur District Deputy Director of Medical Services and a copy was marked to the Association. It was also alleged that when the Village Health Nurses were waiting at Ariyalur Bus Stand, one person known to the Medical Officer, allegedly threatened them with physical harm, to withdraw the complaint. The Village Health Nurses have sent a fax message to the Hon'ble Chief Minister of Tamil Nadu, seeking protection. A complaint has been registered against the said Medical Officer in Crime No.267 of 1997 on the file of Ariyalur Police Station under sections 341, 352 and 506(II) IPC. It was also alleged that the said Medical Officer used abusive words. Though an enquiry was ordered, it was not conducted. On the contra, the Village Health Nurses were punished. Therefore, in order to protect and safeguard the rights of the Village Health Nurses and also to take action against the Medical Officer, the Association stepped in and filed the writ petition for a Mandamus, as stated supra. The Special Secretary to Government, Health and Family Welfare Department, Madras, has filed a counter affidavit and contended inter alia that disciplinary action would be initiated against the Doctor, after the preliminary enquiry ordered by the Additional Director of Public Health and Preventive Medicine. The Deputy Director of Health Services has also conducted an enquiry and in his report, stated that the Village Health Nurses neither attended the enquiry, nor came forward to submit their written statements regarding the sexual harassment, but, instead, they went on agitation and therefore, he could not proceed further, with the enquiry. The Government issued an order, by which, an Enquiry Committee was constituted to enquire and submit a report. Respondents 5 to 7 were impleaded in the above writ petition, during pendency of the writ petition. It was further contended that though an enquiry was conducted in the terms of Vishka's case, by filing W.M.P.No.2287 of 1998, the petitioner has obtained an stay of further proceedings of G.O.(Rt.) No.1764, Health and Family Welfare Department, dated 23.12.1997. On the above facts and circumstances of the case, a Division Bench of this Court, at paragraphs 13 and14, held as follows:
13. It is true that gender equality includes protection from sexual harassment and right to work with dignity, but, in a case involving charge of sexual harassment, the courts are required to examine the broader probabilities of the case and the Courts must examine the entire material to determine the genuineness of the complaint. This kind of cases are to be dealt with great sensitivity. Sympathy in favour of the superior officer is misplaced and at the same time, the statement of victim must be appreciated keeping in mind the entire gamut of the case.
14. It is true that the Committee was constituted by the Government to enquire into the matter and submit a report to the Head of the Department. Since nearly nine years have elapsed and in the absence of details about the availability of the very same persons, we are not inclined to permit the same Committee to proceed further with the matter. Instead, inasmuch as several affected Village Health Nurses represented their grievance to their immediate superiors and others either individually or through Association, we feel it proper to direct the Government to constitute a fresh Committee to enquire and find out the truth in order to determine the genuineness of the allegations made against the 4th respondent-Dr.P.Elangovan.
64. Reading of the above judgment makes it clear, that a specific note of caution has been made by the Hon'ble Division Bench, that "in a case involving charge of sexual harassment, the Courts are required to examine the entire material to determine the genuineness of the complaint. The statement of the victim must be appreciated keeping in mind the entire gamut of the case."
65. In the case on hand, the prayer made in the writ petition is as follows:
"Writ of Certiorarified Mandamus, to call for the records, pertaining to the communication of the 1st Respondent dated 01.01.2010 in SIET Ref. No. 6473/10/2010, quash the same and consequently, the petitioner has sought for a direction to the first respondent to constitute a Committee, as per Vishaka's Judgment of the Hon'ble Supreme Court to enquire into the allegations made against the Respondents 3 and 4."
66. The Government of Tamilnadu have enacted an Act, called the Tamilnadu Prohibition of Harassment of Women Act, 1998, which has come into force on 30th July 1998. As per Section 2(a), 'harassment'' means any indecent conduct or act by a man which causes or is likely to cause intimidation; fear, shame or embarrassment, including abusing or causing hurt or nuisance or assault or use of force."
67. As per Section 3 of the Act, Harassment of Women at any public place is prohibited. Section 4 speaks about penalty for harassment and it states that, whoever commits or participates in or abets (harassment of women) in or within the precincts of any educational institution, temple or other place of worship, bus stop, road, railway station, Cinema theatre, park, beach, place of festival, public service vehicle or vessel or any other place shall be punished with imprisonment for a term which may extend to three years and with fine which shall not be less than ten thousand rupees.
68. Responsibility of the management of any precinct is fixed in Section 5 of the Act and it reads thus, "(1) Any person who is incharge of educational institution, temple, or other places of worship, cinema theatre or any other precinct shall,-
(a) take such steps as he may deem fit to prevent harassment of woman and within the precinct;
(b) on a complaint made by an aggrieved person, give information to the Police about harassment of woman which may extend on two thousand rupees.
(2) Any person who fails to take action under sub-section (1) shall be liable to fine.
69. As per Section 6 of the Act, the duty of the crew in public service vehicle are as follows:
"(1) The crew of a public service vehicle or vessel shall take such steps as they may deem fit to prevent harassment' of woman in the vehicle shall, on a complaint made by the aggrieved person, take such vehicle to the nearest police station and give information to the police."
(2) Any crew who fails to take steps under sub-section (1) shall be liable to fine which may extend to one thousand rupees."
70. Reading of subsection 1(b) of Section 5 and 6(1) of the Tamilnadu Prohibition of Harassment of Women Act, 1998, makes clear that a complaint should be made by the aggrieved person to the person incharge of educational institution, a temple, or other places of worship, cinema theatre or any other place of precinct or the crew of a public service vehicle or vessel, and on such complaint made by the aggrieved person, she should be taken to the nearest police station by the crew and or she herself can give information to the police.
71. In both the cases, the complaint should be made by the aggrieved person, alleging sexual harassment. Only then, the person incharge of a precinct or public service vehicle is mandated to report to the police. The complaint can also be given by the person, who suffered sexual harassment directly to the Police. When the State law is clear on the course to be taken by the aggrieved person, who suffered sexual harassment, by preferring a complaint either to the person incharge of the precinct or by herself, the contention of the petitioner that action should be taken against the respondents 3 and 4 on the basis of an anonymous or pseudonymous complaint, without there being any complaint, or complainant in the eye of law, is against the statutory provisions.
72. Thus, from the statutory provisions under the Tamilnadu Prohibition of Harassment of Women Act, 1998, it is mandatory that there must be a victim and credible information or material evidence should be adduced by the victim or a complainant on behalf of the victim, if the victim is not alive or not in a position to give evidence, and the Courts are required to examine the broader probabilities of the case and determine the genuineness of the complaint. The Tamilnadu Prohibition of Harassment of Women Act, 1998, even envisages examination of a complaint, if the victim suffered sexual harassment before death. No enquiry can be simply ordered for mere asking, as it touches upon the integrity and moral reputation of a person.
73. Vishaka's case does not contemplate any enquiry into all such anonymous or pseudonymous complaints alleging sexual harassment, without credible evidence. If the contentions of the petitioner have to be accepted, then all unconfirmed unworthy, anonymous or pseudonymous complaints, without any credible evidence have to be enquired and this Court would be flooded with writ petitions by unscrupulous persons. That it would lead to opening of a "Pandora Box". The arguments of the petitioner is fallacious. As rightly contended the guidelines issued in the reported judgment would be binding and enforceable until suitable legislation is enacted to occupy the field. Now the Government of Tamil Nadu have enacted the Tamilnadu Prohibition of Harassment of Women Act, 1998, dealing with sexual harassment. At this juncture it is relevant to extract paragraph No.17 of the jugement.
The GUIDELINES and NORMS prescribed herein are as under:-
HAVING REGARD to the definition of 'human rights' in Section 2(d) of the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:
1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
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 where under 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 or raises any objection thereto.
3. Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action:
Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
8. Workers' Initiative:
Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
9. Awareness:
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.
10. Thirty-party harassment:
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
18. Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly."
74. Reading of the guidelines issued by the Supreme Court in Vishaka's case also makes it clear that the victims or witnesses are not victimized or discriminated against, while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer. At Guideline No.6, the Supreme Court has again emphasised that a complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. A combined reading of the guidelines and the statutory provisions under the Tamil Nadu Act to Prohibit (Harassment of Women) 1998, makes it clear that there should be a victim or an aggrieved person, of sexual harassment. In the case on hand, before taking a decision in order to make an enquiry into the allegations contained in the anonymous and pseudonymous letters, Registered Letters have been sent to all the named persons in the complaint and all the letter have been returned stating that "No Such Person" reside in the address. The victim or the aggrieved person is not in existence.
75. Reading of the entire guidelines indicates they are primarily intended to be implemented in Government, public sector bodies and private employers, falling within purview of Industries Standing Orders Act, 1946 and that the guidelines speaks about the action to be taken by the employer. It provides for an option to seek for transfer of the perpetrator or on their own transfer.
76. As per guideline No.6, whether or not, such a conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. As per guideline No.7, the complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. Guideline No.7 further states that the Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. As per guideline No.8, employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings. Guideline No.11 states that the Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are to be observed by the employers in Private Sector.
77. A combined reading of the above gives an indication that the whole guidelines were issued only in the context of an allegation of sexual harassment in Government, public sector bodies and private employees, within the purview of Industrial Standing Orders Act, 1946. But it should be noted that as per the provisions of the Tamilnadu Prohibition of Harassment of Women Act, 1998, harassment even in any educational institution or any precinct as defined in the State Act, a complaint could be lodged by the victim or by a complainant, if the victim is not alive, but suffered harassment. This can also include a case where the victim is not in such physical condition to present herself in person and submit a petition, and that a complaint is given on her behalf, with credible evidence. But in all cases, there should be a victim or an aggrieved person.
78. Though the Central Vigilance Commission's instructions are issued to various Ministries of the Central Government or Corporations established, under any Central Act, Government companies, societies and local authorities owned or controlled by the Government, it is worthwhile to consider the same, for the reason that the instructions are to the effect as to how the Ministry, who is empowered to exercise superintendence over the Vigilance Administration of Various Ministries etc., to deal with anonymous and pseudonymous petitions. Few passages from the instructions of the Central Vigilance Commission, New Delhi, dated 29.06.1999 would be worth consideration for the limited purpose of this case, as to how the Government of India deals with anonymous/pseudonymous petitions/complaints. The instructions may be only with reference to the Vigilance Administration. But in the instant case, it is to be noted that copies of the anonymous and pseudonymous complaints have been stated to have been sent to the President, State Human Rights Commission, Chennai, the Secretary. AUT, Chennai, The instructions are, "2. One of the facts of life in today's administration is the widespread use of anonymous and pseudonymous., petitions by disgruntled elements to blackmail honest officials. Under the existing orders, issued by Department of Personnel & Training letter No.321/4/91-AVD.III dt.29.9.92, no action should be taken on anonymous and pseudonymous complaints and should be ignored and only filed. However, there is a provision available in this order that in case such complaints contain verifiable details, they may be enquired into in accordance with existing instructions. It is, however, seen that the exception provided in this order has become a convenient loophole for blackmailing. The public servants who receive the anonymous/pseudonymous complaints, generally, follow the path of least resistance and order inquiries on these complaints. A peculiar feature of these complaints is that these are resorted to especially when a public servant's promotion is due or when an executive is likely to be called by the Public Enterprises Selection Board for interview for a post of Director/CMD etc. If nothing else, the anonymous/pseudonymous petition achieves the objective of delaying the promotion if not denying the promotion. These complaints demoralise many honest public servants.
3. A person will resort to anonymous or pseudonymous complaints because of the following reasons:
i. He is an honest person who is a whistle blower but he is afraid to reveal his identity because of fear of consequences of the powerful elements in the organisation.
ii. He is a blackmailer who wants to psychologically pressurise the public servant complained against
4. There could be a view that if the anonymous/pseudonymous complaints contain an element of truth and if no action is to be taken on them then highly important source of information will be lost. To that extent, corrupt practices may get a boost. At the same time the Central Vigilance Commission has initiated a number of steps to provide a channel of communication against the corrupt public servants. These measures include the following:
i. Under CVC's order No.8 (l)(h)(l) dated 18.11.98, even junior officers can complain to the CVC in cases of corruption against the seniors;
ii. The CVC has issued instructions that the name of the complainant will not be revealed when the complaint is sent to the appropriate authorities for getting their comments or launching inquiries;
iii. Under CVC Order No. 8(l)(g)/99(4) dated 12,h March 1999, in every office there should be public notice displayed directing that no bribe should be paid. If any bribe is demanded, "the. complaint should be made to the appropriate authority like CVO, CVC etc.; and iv. The CVC is now available on web http://cvc.nic.in If anybody wants to complain they can easily lodge complaints on the website of CVC and also through e-mail [email protected]
6. It is, therefore, ordered under powers vested in the CVC under para 3(v) of the DOPT Resolution No.371/20/99-AVD.III dated 4th April 1999 that with immediate effect no action should at all be taken on any anonymous or pseudonymous complaints. They must just be filed.
79. Thus it could be seen from the above, even the machineries constituted cannot conduct a roving enquiry into any anonymous and pseudonymous complaints if it does contain any truth in them and that they should only be lodged.
80. Perusal of the letter shows that it is said to have been written by one 'A' and others, and sent to the State Human Rights Commission and other organisations. Even the commission, a statutory body cannot enquire into such anonymous and pseudonymous complaints, if it is ascertained through a preliminary enquiry that no such person resides in the said address or somebody else had given a pseudonymous complaint to shield him/her from disclosure, fearing any action to be taken by the person against whom such complaint is made.
81. In Divine Retreat Centre v. State of Kerala reported in 2008 (3) SCC 542, an anonymous petition sent directly in the name of the Judge of the High Court, was suo-moto taken as proceedings under Section 482 Cr.P.C., and the High Court ordered for enquiry. The Supreme Court, after considering the scope of Sections 482, 156 and 154 Cr.P.C., and as to whether an anonymous petition can be treated as public interest writ petition, at Paragraphs 54 to 64, held as follows:
54. Here is a case where no information has been given to the police by any informant alleging commission of any cognizable offence by the appellant and the persons associated with the appellant institution. It is a peculiar case of its own kind where an anonymous petition is sent directly in the name of a learned judge of the Kerala High Court, which was suo motu taken up as a proceeding under Section 482 of the Code. The High Court ought not to have entertained such a petition for taking the same on file under Section 482 of the Code.
55. ..... The decision does not lay down any law that the High Court in exercise of its power under Section 482 of the Code or Article 227 may be resorted to constitute any special Investigating Agency to investigate into allegations made for the first time in an anonymous petition.
WHETHER THE ANONYMOUS PETITION IS TO BE TREATED AS PUBLIC INTEREST LITIGATION ?
57. The question that falls for our consideration is whether the anonymous letter sent in the name of a Judge can be entertained as Public Interest Litigation? It is well settled that a public interest litigation can be entertained by the Constitutional Courts only at the instance of a bona fide litigant. The author of the letter in this case is anonymous, there is no way to verify his bonafides and in fact no effort was made by the Court to verify about the authenticity, truth or otherwise of the contents of the petition.
58. It is not the case of the appellant that no Writ Petition under Article 226 of the Constitution of India can be entertained on the strength of a letter addressed by a bona fide litigant to the High Court. This Court in Sunil Batra (II) Vs. Delhi Administration [(1980)3SCC488] has accepted a letter written to the Supreme Court by one Sunil Batra, a prisoner from Tihar Jail, Delhi complaining of inhuman torture in the jail. In Dr.Upendra Baxi (I) Vs. State of U.P., [(1983)2SCC308] this Court entertained letter sent by the two Professors of Delhi University seeking enforcement of the constitutional right of the inmates in a Protective Home, at Agra who were living in inhuman and degrading conditions. In Miss.Veena Sethi v. State of Bihar [(1982)2SCC583] this Court treated letter addressed to a Judge of this Court by the Free Legal Aid Committee at Hazaribagh, Bihar as a writ petition. In Citizens for Democracy through its President Vs. State of Assam & ors., [(1995)3SCC743] upon which reliance has been placed by Shri P.P. Rao, this Court entertained a letter addressed by Shri Kuldip Nayar, an eminent journalist, in his capacity as President of Citizens for Democracy to one of the judges of this Court complaining of human rights violations of TADA detenues and the same was treated as a petition under Article 32 of the Constitution of the India. But in none of these cases, the Court entertained anonymous petition and converted the same into Public Interest Litigation.
82. Having regard to the plea of the petitioner that she is a social activist and taken up the cause of women, and children and writ petition though not captioned as a "Public Interest" writ petition, but since averments are made, to the effect that in public interest, an enquiry ought to have been ordered, by duly constituting a Committee, as per Vishaka's case, and hence, she has filed this writ petition, this Court deems it fit to consider some of the decisions considered in Divine Retreat Centre's case on the aspect of bonafides of any public interest litigant. The anonymous and pseudonymous complaints have been filed by the petitioner as documents in the typed set of papers, without proper verification by the petitioner. The authors of the letters are non existent nor there is any credible evidence in support of the letters.
"59. We do not propose to burden this judgment with various authoritative pronouncements of this Court laying down the parameters of Public Interest Litigation. Suffice it to recapitulate that this Court uniformly and consistently held that the individual who moves the court for judicial redress in cases of Public Interest Litigation must be acting bone fide with a view to vindicating the cause of justice and not for any personal gain or private profit or of the political motivation or other oblique consideration. The Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the court or even in the form of a regular petition filed in Court.
60. The law in this regard is summarized in Janata Dal Vs. H.S.Chowdhary [1992 (4) SCC 305] thus:
It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the Court for vindicating any personal grievance, deserves rejection at the threshold.
61. In Dattaraj Nathuji Thaware Vs. State of Maharashtra & ors. [(2005)1SCC590], this Court observed:
The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not be publicity-oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
62. In State of West Bengal & ors. Vs. Sampat Lal & Ors., [(1985)1SCC317] this Court administered a caution stating when communications complaining of violation of rights of the deprived and vulnerable sections of the community are sent to the court, care and caution should be adopted to ensure that the process of the court is not abused or misused.
The Court should be prima facie satisfied that the information laid before it is of such a nature that it calls for examination and this prima facie satisfaction may be derived from the credentials of the informant, namely, what is the character or standing of the informant or from the nature of the information given by him, namely, whether it is vague and indefinite or contains specific allegations as a result of survey or investigation or from the gravity or seriousness of the complaint set out in the information or from any other circumstance or circumstances appearing from the communication addressed to the court or to a Judge of the court on behalf of the court.
63. How to verify the credentials, character or standing of the informant who does not disclose his identity? In the instant case, there is no whisper in the order passed by the High Court about any attempts made to verify the credentials, character or standing of the informant. Obviously, the High Court could not have verified the same since the petition received by it is an unsigned one.
64. In Bandhua Mukti Morcha Vs. Union of India & ors. (supra) [(1984)3SCC161], this Court visualized grave danger inherent in a practice where a mere letter is entertained as a petition from a person whose antecedents and status are unknown or so uncertain that no sense of responsibility can, without anything more, be attributed to the communication. It has been observed that the document petitioning the court for relief should be supported by satisfactory verification. This requirement is all the greater where petitions are received by the Court through the post. It is never beyond the bound of possibility that an unverified communication received through the post by the Court may in fact have been employed mala fide, as an instrument of coercion or blackmail or other oblique motive against a person named therein who holds a position of honour and respect in society. The Court must be ever vigilant against the abuse of its process. It cannot do that better in the matter than insisting at the earliest stage, and before issuing notice to the respondent, that an appropriate verification of the allegations be supplied. The above judgment squarely applies to the facts of this case, wherein, the Supreme Court held that even if a letter is sent to the High Court, the same cannot be acted upon, without verifying the credentials and authenticity, cannot be attributed.
83. Material on record discloses that after the copies of the letters alleging irregularities in the administration and misconduct on the part of the respondents 3 and 4 respectively were received, from the petitioner, the Chairman, the Southern India Educational Trust, Chennai, has sent registered letters, dated 12.10.2009 to all the addressees stated to have been residing at Door No.93/131 Peters Road, Royapettah, Chennai, to intimate as to whether they have written any complaint against Mr.Faizur Rahman Sayeed and if so, the addressees have been requested to confirm having written such a complaint within 10 days, failing which, it would be presumed that they have nothing to say in the matter. All the registered letters have been returned with a specific postal endorsement dated 14.10.2009 "No Such Person".
84. The writ petition has been filed on 08.01.2010. Perusal of the minutes dated 11.01.2010 and 06.07.2010 of the Executive Council Meeting shows that eight members including the Chairman were present in the meeting. The petitioner had not attended the meeting. The letter of the petitioner addressed to the Chairman on 12.10.2009 along with the annexures have been placed before the Council. The Executive Council has also deliberated that a reply has been sent by the Chairman in his letter dated 27.10.2009 to the petitioner, stating that out of the four letters sent by the petitioner, two were anonymous and that the other two letters contained some signatures and that a reply has been sent by the Chairman of the Council to the petitioner stating that after making enquiries to ascertain the authenticity of these letters and that he would proceed further in the matter, as appropriate. In the same meeting, the Executive Council has also deliberated that Chairman in his letter dated 01.01.2010 has brought to the notice of the petitioner that out of the anonymous and pseudonymous letter enclosed along with the petitioner's letter dated 05.12.2009, registered letters were sent to the named persons with acknowledgment due and that all the letters were returned with a postal endorsement "No Such Person", and in such circumstances the above pseudonymous letters were lodged. The Council's meeting also discloses that the petitioner has sent a letter dated 06.01.2010 to the Chairman on the same subject for which a reply has been sent. For better appreciation, the Council's deliberations on the subject is extracted hereunder:-
VIII) Similarly, letter dated 7,1,2010 written by Mr. Faizur Rahman Sayeed (copy attached hereto as Annexures 13) and letter dated 8.1.2010 written by Dr. M.S. Mehkari (copy attached hereto as Annexures 14) responding to Mrs. Bader Sayeed letters were also placed before this Executive Council.
(a) In his letter dated 7.1.2010, addressed to the Chairman, with copy circulated to Executive Council Members, Mr. Faizur Rahman Sayeed pointed out the highly libellous, scurrilous, defamatory and calumnious nature of the allegations made against him and Dr. M.S. Mehkari in the anonymous and pseudonymous letters received.
(b) He strongly objected to Mrs. Bader Sayced's demand for an enquiry on the basis of anonymous and pseudonymous letters. He pointed out that the Supreme Court judgment in Vishaka v. State of Rajasthan quoted by Mrs. Bader Sayeed could have utterly no relevance or application in a situation of anonymous and pseudonymous allegations. He further pointed out that ever since he was appointed by the Executive Council unanimously on 6.10.2006 as Correspondent of the College, a post which Mrs. Bader Sayeed had herself occupied for eight (8) long years, There had been constant attempts at finding fault with the running of the institutions.
(c) He remarked that some cowardly individuals, obviously financially hurt by his efforts to prevent the misuse of the college admission process and of acquisition and use of its assets and finding nothing concrete to accuse him of, have taken recourse to sending such anonymous and pseudonymous letters making wild, abusive and libellous accusations to tarnish his reputation. He observed that it is unfortunate that Mrs. Bader Sayeed has seen fit to insist on an enquiry into these false allegations. The tenor of her present letters implies her expectation and hope that she herself would be a member of such an"enquiry committee".
(d) He stated that Mrs. Bader Sayeed has obviously not realized the damage she is causing" to an institution of repute which has been included in the top 4% of India's colleges by insisting on an "enquiry" which has all the potential of ending up into a "free for all" fishing expedition, not only against him but against all those who have held the post of Correspondent in the past. In the process, it is the institution that will suffer with long-term consequences to its repute and its ability to attract good students and academics.
(e) He added that if such a blatant attempt at maligning him was to be placed on record, then he would request, or rather insist, that his letter dated: 7.1.2010 (copy attached hereto as Annexure 13) also be placed on record along with her letter.
(f) Dr. M.S. Mehkari, in his letter dated: 8.1.2010 addressed to the Chairman,with copies circulated to Executive Council Members (copy attached hereto as Annexure 14) also pointed out the vague, wild, and abusive nature of the allegations, couched in crude and vulgar language, made against himself and Mr. Faizur Rahman Sayeed in the anonymous and pseudonymous letters received.
(g) He regretted that however, the Joint Secretary of S.I.E.Trust, Mrs. Bader Sayeed for reasons best known to herself, had seen fit to demand and insist on an enquiry into these vague, wild, scurrilous and unsubstantiated allegations.
(h) He stated that ever since he was co-opted as a member of the Executive Council and inducted into various committees, such as the Land Purchase Committee, the Rent Revision Committee, the Admission Committee and Staff Selection Committee, etc., he had all through been insisting on transparency, due diligence, fairness and justice, and had made efforts to prevent the misuse of the S.I.E.Trust's funds in any manner whatsoever.,
(i) He believed that the anonymous and pseudonymous letters written by cowardly persons, containing libelous and defamatory allegations, have been written solely with the intention of denigrating him. He said that the Chairman and other Members may expect to receive more such scurrilous and anonymous and pseudonymous letters in the future, so long as he continued to uphold the high standards of the S.I.E.T. and so long as affected vested interests persist in their hostility to him. He expressed his determination that he would not allow such cowards and such vested interests to prevent him from performing his duty to the organization.
(j) He rejected as false all the allegations made in these anonymous and pseudonymous letters.
(k) He added that the insistence of Mrs. Bader Sayeed would, lead to nothing of substance except the infliction of a long-term damage to the good reputation of the S.I.E.Trust and the Justice Basheer Ahmed Sayeed College for Women, affect the latter's ability to attract students of the minority community and good academic staff and also adversely affect its ability to raise finances for the education of Muslim girls. He requested that, if Mrs. Bader Sayeed's letter was to be taken on record, then he would request that his letter dated: 8.1.2010 also be placed on record.
IX)The Executive Council considered all the letters cited above and placed them on record.
X) Since Mrs. Bader Sayeed has requested that Mr. Habibullah Badsha, Vice-Chairman, S.I.E.T., also to document his legal opinion as a Senior Counsel, it has been obtained, (copy attached hereto as Annexure 15) Mr. Habibullah Badsha has clearly stated that since the Chairman had made enquiries about the authenticity of the letters and of the four (4) letters, since two (2) letters were anonymous and the other two (2) pseudonymous., the question of appointing an enquiry committee will not arise. He has further stated that the question of holding an enquiry does not arise now.
XI) The Chairman also brought to the notice of the Committee, the instructions issued by the Central Vigilance Commission of Government of India, vide its orders bearing 3(v) 99/2 dated 29.6.1999. It is significant to note that even the Central Vigilance Commission of the Government of India has issued strict instructions that no action is to be taken on anonymous and pseudonymous letters and they are to be merely filed. (Copy attached hereto as Annexure 16). The Commission has observed that one of the facts of life in today's administration is the widespread use of anonymous and pseudonymous petitions by disgruntled elements to blackmail honest officials. If nothing else, the anonymous/pseudonymous petition achieves the objective of delaying the promotion if not denying the promotion. These complaints demoralise many honest public servants. Therefore the Commission has ordered that no action should at all be taken on any anonymous, or pseudonymous complaints. They must just be filed.
XII) The Executive Council considering all the facts and circumstances of the case concluded that in view of the explanations given by the Chairman to the various letters written by Mrs. Bader Sayeed and since the complaints were only anonymous and pseudonymous, there was no need to appoint any committee when the existence of the complainant/complainants is not established. The. committee also considered that the State of Tamil Nadu had enacted the Tamil Nadu Prohibition (of Harassment of Women) Act, 1988 and that Act only has to be followed since in the VISAKA case reported in (1997) 6 SCC 241, in para 18 of the judgment, the Supreme Court had stated that the directions given therein would be binding and enforceable in laws until suitable legislation is enacted to occupy the field. The Act does not provide for any committee to be appointed. Hence the question of appointing any committee does not arise, especially when there is no complainant in existence.
XII) The Committee has also noted that as requested by Mrs. Bader Sayeed, her dissent had already been recorded in the minutes dated 5.12.2009. Hence the committee came to a conclusion that there was no illegality or impropriety in the ratification of the reappointment of Mr. Faizur Rahman Sayeed as Correspondent on 5.12.2009.
85. The writ petitioner has addressed a letter dated 06.01.2010, to the Chairman, SIET, Chennai and alleged bias on the part of the Chairman on the ground that one of the Executive Committee Members was his own brother. The relevant paragraphs in the letter are extracted hereunder:-
Further you refused to take my letter on record concerning the agenda of the meeting held on 5th December 2009 where I had specifically wanted to raise the issue that since allegations (anonymous or otherwise) of sexual abuse have been made in various letters to all the members of the institution Mr.Faizur Rehman Sayeed and Dr.M.S.Mehkari, the reappointment of Mr.Faizur Rehman Sayeed as corespondent was improper. You responded by saying that you had conducted an enquiry on this issue with the "postal authorities," (Which one, one wonders) which has not provided any results sufficient to indict them. This makes a mockery of the entire process and procedure laid down for addressing complaints of sexual harassment.
I wish to remind you that Doctor M.S Mehkari is your own brother and the so called enquiry purported to have been conducted by you would obviously be biased violating even the basic principles that a person ought not to head the enquiry in which he has an interest.
86. For the abovesaid letter, a reply dated 08.01.2010 has also been sent by the Chairman of the Executive Council to the petitioner reiterating the position that out of four letters, after scrutiny and enquiries, two were found to be anonymous and the other two were pseudonymous.
87. Material on record also shows that Mr.Faizur Rahman Sayeed, member of the Executive Council, SIET, Chennai, has also sent a letter dated 07.01.2010 wherein, he has explained the feud and dispute between him and the petitioner. Similar letter has also been sent by Dr.M.S.Mehkari, Former Senior Civil Surgeon, Government of Tamil Nadu, Member of the Executive Council, SIET. On the aspect of the petitioner's request that the Vice Chairman, SIET, should document his legal opinion, on the question of holding an enquiry, the Vice Chairman has also offered his opinion to the effect which is as follows:-
"Since the Chairman has made enquiries about the letters and as far as two letters are concerned they were anonymous and as far as other two letters they were pseudonymous as the letters sent to these persons by registered post with acknowledgment due were returned stating that "No Such Person", the question of appointing a committee will not arise. I do not know how any complaint can be investigated without complainants being in existence. Merely because someone writes anonymous letters, it does not mean that the person's character can be tarnished. This will lead to a very unhealthy practice. Hence, the question of holding enquiry does not arise. This opinion is given mainly because Mrs.Bader Sayeed, has requested me to give this information."
88. Perusal of the minutes of the Executive Council Meeting of SIET, held on 06.07.2010 shows that eight members were present including the petitioner. The Executive Council has decided to accept the resignation of Janab S.M.Kamaluddin Fakhri, which as follows:-
5. TO ACCEPT THE RESIGNATION OF JANAB S.M. KAMALUDDIN FAKHRI SAHIB FROM THE POST OF SECRETARY AND TO APPOINT A SECRETARY IN HIS PLACE.
The Chairman eulogized the long services of Janab S.M. Kamaluddin Fakhri Sahib. Janab S.M. Kamaluddin Fakhri Sahib has served as Secretary of the Trust for the past 31 years and he worked with five Chairman. He has worked conscientiously, competently and with dedication getting the cooperation of all persons. It is with deep regret that he is recommending the acceptance of the resignation of Janab S.M. Kamaluddin Fakhri Sahib (Copy at annexure 1) The Executive Council accepted the resignation of Janab S.M.Kamaluddin Fakhri Sahib and placed its appreciation of his services as mentioned by the Chairman, on record.
Mr. Habibullah Badsha, Vice Chairman proposed the name of Mr. T. Rafeeq Ahmed, Member of the Executive Council to be co-opted in place of Janab S.M. Kamaluddin Fakhri Sahib. Mr. Faizur Rahman Sayeed and Dr.M. S. Mehkari seconded the proposal. The Chairman welcomed the proposal and supported it and Mr. T. Rafeeq Ahmed consented to the co-option. Mr. Hameed Ahmed Sayeed proposed that the name of Mrs. Bader Sayeed, the Joint Secretary should be considered for the post. The Chairman said that the name of Mr. T. Rafeeq Ahemd has been proposed by the Vice Chairman Mr. Habibullah Badsha and seconded by Mr. Faizur Rahman Sayeed and Dr. M.S. Melikari and supported by the Chairman himself. Mr. Hameed Ahmed! Sayeed's proposal was not seconded. Since the majority of the members supported Mr. T. Rafeeq Ahmed, he was co-opted as Secretary of the S.I.E.Trust.
All the members present congratulated Mr. T. Rafeeq Ahmed on his co-option.
The Chairman said that the long association of Janab T. Rafeeq Ahmed Sahib with voluntary agencies in Tamil Nadu and his family's contribution to the S.I.E.T. deserve to be appreciated and he hoped that Janab T. Rafeeq Ahmed Sahib will work to the best of his ability in furthering the objectives of the Trust.
89. The writ petition has been filed on 08.01.2010, on receipt of a communication dated 01.01.2010 from the Chairman, SIET, Chennai, stating that out of the four letters, two were unsigned and hence they are anonymous and the other two bore no signatures and upon verification, there was no such person and hence these two letters were pseudonymous and under the circumstances, the letters have been lodged. In the abovesaid circumstances, this Court is inclined to adjudicate the correctness of the impugned order only with reference to the manner in which the complaint has been examined and whether a committee as prayed for is required to be constituted or not.
90. Material on record discloses that the appointment of the 4th respondent as Corespondent was a collective decision, and that the petitioner has also expressed her dissent. If the selection of the 4th respondent was contrary to any procedure, to be followed for such selection, it is always open to the petitioner to question the same. But the collective decision cannot be adjudicated in this writ petition, for the reason that Courts have consistently held that the decision making process can be assailed and not the decision. Further the selection of the 4th respondent is not the subject matter of this writ petition and no prayer is sought for to quash the selection.
91. Material on record discloses that the 3rd respondent has not been made as the Secretary of the Trust, and one Mr.Rafeeq Ahmed has been elected as the Secretary of the Trust, who is not related to the Chairman. Hence the allegation that the Chairman wanted to make the 3rd respondent, who is his brother, as Secretary, is not substantiated.
92. Perusal of the anonymous and pseudonymous petitions reflects the depravity and the mindset of those who have made scurrilous and wild allegations, denigrating the reputation of the members of the Executive Council. Admittedly, two letters were anonymous and the other two pseudonymous letters sent in the name of one 'A' and others, stated to have been residing at Door No.93/131, Peters Road, Royapettah Road, Chennai, were also written in bad taste, touching upon the moral turpitude of the members of the Executive Council. The names of certain X and Y have been mentioned, alleging that the Executive Council Members had intimate relationship which includes physical contact. The letter also alleges relationship of a member, a former Head of the Home Science Department, and a computer Lab attender with some members. There is a further allegation, involving a Typist. Unpalatable expressions have been used everywhere in the letters.
93. Reading of the pseudonymous letters alleged to have been sent by 'A' and others claiming to be the residents of Door No.93/131, Peters Road, Royapettah Road, Chennai, reflects the perverted mindset of those who have written the alleged letter, when they have even said in the letter that photographs of X in bed room scene and Y, are in their custody and the same would be placed conspicuously, on the walls of the college. When such a libelous, defamatory allegations have been made against the members of the Executive Council couched in such crude and vulgur language, any ordinary prudent person would first try to ascertain as to whether the persons said to have addressed such a letter reside in the said address, before proceeding further. That is exactly what the Chairman, has done in the instant case, by sending a registered letter to all the persons named in the complaint with acknowledgment due, to confirm as to whether they have written such letters.
94. Material on record shows that all the registered letters sent with acknowledgment due to the addressees have been returned by the postal department that "No Such Person" reside in the abovesaid address. As stated supra, the other two letters were anonymous without any signature. As rightly contended, there are no complainants in the eye of law. Even assuming that the aggrieved had given some pseudonymous names, fearing disclosure of their true identity, no body has come forward to meet the Chairman or any other Executive Council Member or even the writ petitioner or furnish any credible material evidence to substantiate the allegations.
95. Reading of the entire material record shows that the institution has been established by a Judge of this Court and the said institution is for the educational advancement women and weaker sections of the society. SIET has also established two schools, one for the boys and the other for the girls. Both are unaided. The greatness of the institution and its interest for the well being of the have-nots is also evident in promoting a centre for dyslexic children, vocational training centre for the differently abled children and women study centre, in terms of the constitutional objectives, which a State is constitutionally obligated to give preference. The institution has taken up such cause. When such is a reputation of the minority institution established by a former Judge of this Court and promoted in other welfare activities, with the 2nd respondent, as the Chairman of the Executive Council, it is his prudence, wisdom and vast experience, in the interest of the institution, the students and the staff, he has rightly taken a decision first to confirm from the alleged complainants, as to whether they have written such letters. The approach of the Chairman of the Executive Council of SIET, cannot be termed as inappropriate. If the Chairman of the Executive Council had really intended to shield the alleged perpetrators of law, then there is no necessity to send registered letters to each one of them mentioned in the complaint. The Chairman of the Executive Council cannot be said to be a person with less experience, as it could be seen from the material on record, he has held many important positions in his career and been recipient of Padma Vibhushan Award, for his distinguished services.
96. As rightly contended by the Learned Senior Counsel appearing for the respondents, when such scurrilous, mudslinging, defamatory allegations are made not only against the members of the Executive Council of SIET but, also included certain subordinates of the institutions, touching the integrity, this Court fails to understand as to what exactly is the motive of the writ petitioner in harping on the constitution of a committee to enquire into some allegations, when the alleged victims themselves have not come forward to give any information or evidence to the Chairman in person or even to the petitioner.
97. No doubt in Ms.K.Shameem Rani Vs. Dr.I.Ismail, and another, W.A.(MD) No.295 of 2010, dated 09.02.2011, a Division Bench of this Court has directed, the 2nd respondent therein to constitute a complaints committee. Paragraph No.16 of the order made in the above appeal is as follows:
"16. Before parting with this case, we are constrained to take note of the situation which is prevailing in the second respondent College, where no Complaints Committee is constituted even after expiry of 13 years, the directions of the Honourable Supreme Court in Visaka's case, (1997) 6 SCC 241. In the said decision, the Honourable Supreme Court gave directions to constitute a Complaints Committee by the Employers/Organisation for redressal of the complaints made by the victim regarding sexual harassment, which will provide for specific protection for women from sexual harassment in workplace. The said Complaints Committee was directed to be constituted as an appropriate step to prevent sexual harassment by all employers/persons in charge of workplace, whether it is public or private sector. The said direction was issued by the Honourable Supreme Court under Article 32 of the Constitution of India, which is the law of the land and binding on all concerned under Article 141 of the Constitution of India, is not complied with by the second respondent College. Hence we direct the second respondent to constitute a Complaints Committee in the second respondent College as ordered by the Supreme Court, within a period of four weeks from the date of receipt of a copy of this order. We also direct that the State Government should ensure that in all workplaces where women are employed/appointed, the Government must see that the Complaints Committee is constituted and immediate and effective steps are to be taken by the State Government to see that the order of the Supreme Court in Visaka's case reported in (1997) 6 SCC 241 is complied with, in letter and spirit in all Offices/establishments throughout the State of Tamil Nadu, where women are employed. Since the State Government is not a party in this writ appeal, we direct the Registry of this Court to mark a copy of this judgment to the Chief Secretary, Government of Tamil Nadu, Chennai-9, for taking immediate and appropriate action in this regard."
98. In the unreported judgment Ms.K.Shameem Rani's case, there was a victim who alleged to have suffered sexual harassment. In the case on hand, there is nobody. In such circumstances, the Bench has ordered for constitution of a complaints committee.
99. As rightly contended by the Learned Senior Counsel for the institution as well as other respondents, the petitioner has not even made any attempt to ascertain the truth or otherwise or the authenticity of the purported complainants before writing a letter to the Chairman, demanding that a committee to be constituted. Even the petitioner herself has not made any preliminary enquiry or produced any material evidence in support of such serious imputations, touching upon the integrity of the members of the Executive Council. As pointed out, allegations have been made against some X and Y, women subordinates, and also about a retired head of the department. The depravity in the mindset of the purported complainants is also so crude that they have also imputed something against the wife of the 4th respondent. It is unfortunate and sorry state of affairs that the petitioner who has held various positions and also a high office in legal fraternity, has failed to consider that such type of mudslinging, damaging, scurrilous, allegations can be made against anybody by sending anonymous and pseudonymous letters and expected that such a person should go before public or a committee for an enquiry, blindly, even without ascertaining the authenticity of the purported complainants. The petitioner has failed to consider that imputations can be made against anybody in Executive Council or involved in public life. Today, it may be against respondents 3 and 4. Tomorrow, it may be against the Chairman and it may be against all the members also. Such allegations may not always be relating to sexual harassment. But, it can be with reference to financial irregularities, misappropriation or embezzlement or any other misconduct touching upon moral turpitude. If any such anonymous or pseudonymous complaints are received, by the Executive Council, it cannot be said that all the members of Executive Council would come forward and subject themselves, for any enquiry, purely based on such anonymous or pseudonymous complaints. As rightly contended by the Learned Senior Counsel appearing for the institution and the members of the Executive Council, even assuming that a committee has to be constituted for an enquiry into such anonymous and pseudonymous complaints, if the complainants themselves are not available and the victims have not come forward to give any information or evidence, a non existent complainant cannot be summoned to provide evidence or the committee to be constituted, cannot enquire each one of the persons named in the complaint about the alleged misconduct of the members of the Executive Council. It should be borne in mind that the complaint involves relationship of 'X' and 'Y', and the integrity of a woman and any ordinary, prudent man would not summon or enquire a woman without any basis or evidence. Even assuming that there is a victim who is reluctant to speak, there should be some evidence to proceed further. Any such action by either the Chairman of the Executive Council or the committee to be constituted for the purpose of ascertaining the authenticity of the complaint, would be a serious invasion of the rights of the persons named in the complaint, if there is no evidence.
100. Reading of the judgment in Vishaka's case presupposes the act complained of, should fall within the definition of "sexual harassment". "Harassment" is also defined in Tamil Nadu Act to Prohibit (Harassment of Women) in any place in the State of Tamil Nadu, as follows:
"'harassment' means any indecent conduct or act by a man which causes or is likely to cause intimidation; fear, shame or embarrassment, including abusing or causing hurt or nuisance or assault or use of force."
101. There should be a victim and witnesses for any alleged violation of law or misconduct. When serious aspersions on the moral integrity of the Executive Council members have been made, the petitioner, claiming herself to be a social activist, fighting for the cause of women and children, should have taken adequate steps to verify as to whether complainants are in existence and whether there is any substantial and credible evidence or statements given by the complainants, either in person or not. When some unknown or non existent persons have written highly defamatory, vulgar letters involving respectable persons and women, including the wife of the 4th respondent and a lady principal of the college who had demitted the office, after rendering 38 years of devoted service to the institution and about some other women subordinates, touching upon their integrity, chastity, the petitioner having held so many positions and claimed to be a social activist for the cause of women, should have first ascertained as to whether the complainant exists and whether there is any truth in the complaint. If she has to only harp on the anonymous and pseudonymous complaints and insist for a committee to be constituted, it would be causing a serious invasion of the rights of all the women named in the anonymous and pseudonymous complaints. As a Joint Secretary to the college and a member of the Executive Council, nothing prevented the petitioner from collecting any credible evidence from any of the alleged victims or the women named in the complaints. As rightly contended by the Learned Senior Counsel for the respondents that the college enjoys a very high reputation in the city both for its secular nature and composition of mixed communities. Though the 2nd respondent happened to be the brother of the 3rd respondent, on receipt of the complaints from the petitioner, the Chairman of the Executive Council, has rightly chosen to verify the authenticity of the complaints before proceeding further. The action of the Chairman in ascertaining the existence of the complainants and calling upon them to confirm as to whether they have written such complaints itself would show that the Chairman of the Executive Council was unbiased in ascertaining the authenticity of the complaints. Though the Chairman of the Executive Council has sent a reply to the petitioner stating that the complaints have been filed, after ascertaining the existence of the alleged complainants, the decision of the Chairman has been placed before the Executive Council and recorded.
102. As righty contended by the Learned Senior Counsel for the respondents, if any one of the purported complainant was aggrieved over the conduct of the respondents 3 and 4, he/she should have come forward to present the complaint and made any statement to the Chairman or even to the petitioner. If credibility has to be given to such anonymous and pseudonymous complaints, nobody can function independently. The image of any male person in a work place can be simply tarnished by sending any anonymous or pseudonymous complaint followed by a demand to appoint a committee to enquire into the same. Enquiry by a committee cannot be granted for mere asking. It does not mean that whenever a petition is sent, anonymous or pseudonymous, immediately a committee should be constituted and that it should swing into action, by calling upon the person accused of any harassment, without even making any preliminary enquiry or for the matter that even for holding a preliminary enquiry, a committee has to be constituted. If that be the case, no man can work in a place, where women work. Law contemplates protection to women and weaker sections of the society. At the same time, men also cannot be harassed by fictious, anonymous or pseudonymous, baseless complaints. The Executive Council of SIET is a body comprising of well reputed persons, managing and administering many educational institutions and therefore, if any anonymous or pseudonymous complaint is received, the Executive Council or the Chairman of the Council, can always verify its authenticity before proceeding further. The verification done by the Chairman, through a Governmental Agency, i.e., Postal Department, cannot be faulted as vitiated.
103. As rightly pointed out by the Learned Senior Counsel for the 1st respondent, when only four letters were sent to the Chairman of the Executive Council of SIET, it is not known as to how the petitioner came in possession of three additional letters. If there are some persons, who directly sent letters only to the petitioner and not to the Chairman of the Executive Council, the petitioner being the Joint Secretary of the Council, should have immediately brought to the notice of the Council or made some preliminary enquiries to ascertain the authenticity of the complaints.
104. An anonymous or pseudonymous complaint without proof, has no value at all. Judicial notice of such complaints unless supported with credible evidence, cannot be considered as a document and it has no evidenciary value, for the reason that facts have to be proved. No presumption of the genuineness of the contents of such anonymous and pseudonymous complaints can be made. Even the contents of an affidavit, a solemn statement made in the Court, has to be proved. At this juncture, this Court deems it fit to extract a judgment of the Supreme Court in Bharat Singh v. State of Haryana reported in 1988 (4) SCC 534, wherein, it has explained the difference between the pleading in a writ proceeding and a Civil Court. At Paragraph 13, the Apex Court held as follows:
When a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. In this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statements, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.
105. Such complaints without proof are inadmissible in any proceedings. In the case on hand, there is no evidence to establish that they were sent by the purported complainants, as they were not residing in the address given in the complaints. The writ petition has been filed not on personal knowledge of the petitioner nor she has taken any care to verify herself about the correctness of the contents therein. She has not even made any averments as to whether she had taken any efforts to find out whether any of the allegations made have any basis. Merely because, the petitioner claims herself to be a person championing the cause of the women and children, it is not expected to attribute authenticity or credibility to such anonymous and pseudonymous complaints. They per se do not constitute legally acceptable evidence.
106. Credentials of the person approaching the High Court may be indisputable. But the Court, exercising powers under Article 226 of the Constitution of India, is concerned about the credibility of the material produced, for invoking its extraordinary jurisdiction. No body can be allowed to make unconfirmed reports or anonymous or pseudonymous complaints, without credible evidence, as the basis for invoking Article 226 of the Constitution of India. If the writ petitioner invokes public law remedy, he/she has to substantiate the averments with proof. A clear foundation has to be laid in the petition, with supporting material evidence and documents.
107. A decision of the Supreme Court in Dr.B.Singh Vs. Union of India (UOI) and others, reported in 2004 (3) SCC 363, is also worth consideration, wherein the Supreme Court expressed its anguish, in the manner, as to how public interest writ petitions are filed making frivolous allegations.
"In matters relating to public interest litigation, the Supreme Court has time and again cautioned that the Court has to be satisfied about (a)the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests;i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. Reference can be made to the recent decision of the Apex Court in Holicow Pictures Pvt., Ltd., Vs. Prem Chandra Mishra and others reported in 2008 (1) CTC 711 (Para 20).
108. The main source of presenting this writ petition are the anonymous and pseudonymous complaints. Though legal parameters have been set out in the matter of public interest writ petitions and particularly in the matter of anonymous and pseudonymous complaints as held in Divine Retreat Centre v. State of Kerala reported in 2008 (3) SCC 542, yet, without considering the same, the petitioner has chosen to file this writ petition.
109. A writ petition filed to enquire into anonymous and pseudonymous complaints without any credible evidence to support the allegations is not maintainable and no roving enquiry can be ordered by this Court under Article 226 of the Constitution of India.
110. Placing reliance on a decision made in Nabia Bai Vs. State of Madhya Pradesh, reported in AIR 1992 SC 602, a submission has also been advanced by the learned Senior Counsel for the petitioner that when serious allegation has been made against the Member of the Council, instead of constituting a Committee as directed by the Supreme Court, the Chairman himself has conducted a perfunctory enquiry and held that the allegations as unsubstantiated. According to him, when the nature of complaint made by the students of the institution, touch upon the integrity of the Chairman of the College, who is none other than the 4th respondent, the Chairman ought to have constituted a committee and allowed the same to enquired into by the Committee. Instead he allowed the respondents 3 and 4 to hold the posts. He also submitted that the whole enquiry conducted by the Chairman of the College as farce.
111. To support bias, reliance has been placed in Dr.Subramanian Swamy Vs J.Jayalalitha and two others, reported in 1994 Writ L.R. 59 and Election Commission of India and another Vs. Dr.Subramanian Swamy and another, reported in AIR 1996 SC 1810. In view of the above discussion, this Court is of the view that the above judgments would not lend support to the facts of this case. For the foregoing reasons, the allegation of bias is rejected.
112. In the result, the writ petition is dismissed. Interim Injunction granted on 08.01.2010 in M.P.No.3 of 2010, is vacated. Consequently, M.P.Nos.4 to 7, seeking to vacate interim injunction granted in M.P.No.3 of 2010, are ordered. M.P.Nos.1 and 2 of 2010 are closed. No costs.
sd/-
Assistant Registrar True Copy/-
Sub Assistant Registrar skm/nb To
1)The Registrar University of Madras, Chepauk, Chennai-600 005.
2) The Director of School Education, College Road, Chennai-600 006.
3) The Director of Collegiate Education, College Road, Chennai.
+1 CC to Mr. S. Thiruvenkateswamy Advocate sr 47216 +1 CC to Mr. C. Manishankar Advocate Sr 46911 W.P.No.480 of 2010 and M.P.Nos. 1 to 7 of 2010 SKD-CO KV 30/08/2012