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PETITIONER:

APPAREL EXPORT PROMOTION COUNCIL

Vs.

RESPONDENT:

A.K. CHOPRA

DATE OF JUDGMENT: 20/01/1999

BENCH:

V.N.Khare

JUDGMENT:

DR. ANAND, CJI :

Special Leave granted. Does an action of the superior

against a female employee which is against moral sanctions

and does not withstand test of decency and modesty not

amount to sexual harassment? Is physical contact with the

female employee an essential ingredient of such a charge?

Does the allegation that the superior tried to molest a

female employee at the place of work, not constitute an

act unbecoming of good conduct and behaviour expected from

the superior? These are some of the questions besides the

nature of approach expected from the law courts to cases

involving sexual harassment which come to the forefront and

require our consideration. Reference to the facts giving

rise to the filing of the present Appeal by Special Leave at

this stage is appropriate : The respondent was working as a

Private Secretary to the Chairman of the Apparel Export

Promotion Council, the appellant herein. It was alleged

that on 12.8.1988, he tried to molest a woman employee of

the Council, Miss X (name withheld by us) who was at the

relevant time working as a Clerk-cum-Typist. She was not

competent or trained to take dictations. The respondent,

however, insisted that she go with him to the Business

Centre at Taj Palace Hotel for taking dictation from the

Chairman and type out the matter. Under the pressure of the

respondent, she went to take the dictation from the

Chairman. While Miss X was waiting for the Director in the

room, the respondent tried to sit too close to her and

despite her objection did not give up his objectionable

behaviour. She later on took dictation from the Director.

The respondent told her to type it at the Business Centre of

the Taj Palace Hotel, which is located in the Basement of

the Hotel. He offered to help her so that her typing was

not found fault with by the Director. He volunteered to

show her the Business Centre for getting the matter typed

and taking advantage of the isolated place, again tried to

sit close to her and touch her despite her objections. The

draft typed matter was corrected by Director (Finance) who

asked Miss X to retype the same. The respondent again went

with her to the Business Centre and repeated his overtures.

Miss X told the respondent that she would leave the place

if he continued to behave like that. The respondent did

not stop. Though he went out from the Business Centre for a

while, he again came back and resumed his objectionable

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acts. According to Miss X, the respondent had tried to

molest her physically in the lift also while coming to the

basement but she saved herself by pressing the emergency

button, which made the door of the lift to open. On the

next day, that is on 16th August, 1988 Miss X was unable to

meet the Director (Personnel) for lodging her complaint

against the respondent as he was busy. She succeeded in

meeting him only on 17th August, 1988 and apart from

narrating the whole incident to him orally submitted a

written complaint also. The respondent was placed under

suspension vide an order dated 18th August, 1988. A

charge-sheet was served on him to which he gave a reply

denying the allegations and asserting that the allegations

were imaginary and motivated. Shri J.D. Giri, a Director

of the Council, was appointed as an Enquiry Officer to

enquire into the charges framed against the respondent. On

behalf of the management with a view to prove the charges as

many as six witnesses were examined including Miss X. The

respondent also examined seven witnesses. The Enquiry

Officer after considering the documentary and oral evidence

and the circumstances of the case arrived at the conclusion

that the respondent had acted against moral sanctions and

that his acts against Miss X did not withstand the test of

decency and modesty. He, therefore, held the charges

levelled against the respondent as proved. The Enquiry

Officer in his report recorded the following, amongst other,

findings : 8.1. Intentions of Shri A.K. Chopra were

ostensibly manifested in his actions and behaviour; Despite

reprimands from Miss X he continued to act against moral

sanctions; 8.2. Dictation and subsequent typing of the

matter provided Shri A.K. Chopra necessary opportunity to

take Miss X to the Business Centre a secluded place.

Privacy in the Business Centre room made his ulterior motive

explicit and clear; 8.3. Any other conclusion on technical

niceties which Shri A.K. Chopra tried to purport did not

withstand the test of decency and modesty.

The Enquiry Officer concluded that Miss X was molested

by the respondent at Taj Palace Hotel on 12th August, 1988

and that the respondent had tried to touch her person in the

Business Centre with ulterior motives despite reprimands by

her. The Disciplinary Authority agreeing with the report of

the Enquiry Officer, imposed the penalty of removing him

from service with immediate effect on 28th June, 1989.

Aggrieved, by an order of removal from service, the

respondent filed a departmental appeal before the Staff

Committee of the appellant. It appears that there was some

difference of opinion between the Members of the Staff

Committee and the Chairman of the Staff Committee during the

hearing, but before any decision could be arrived at by the

Staff Committee, the respondent, on the basis of some

unconfirmed minutes of the Staff Committee meeting, filed a

Writ Petition in the High Court inter alia challenging his

removal from service. On January 30, 1992, the Writ

Petition was allowed and respondent Nos. 1 and 3, therein,

were directed to act upon the decision of the Staff

Committee, assuming as if the decision, as alleged, had been

taken at the 34th Meeting of the Staff Committee on 25th

July, 1990. The appellant challenged the judgment and order

of the High Court dated 30th January, 1992, through Special

Leave Petition (Civil) No.3204 of 1992 in this Court. While

setting aside the judgment and order of the High Court dated

30th January, 1992, a Division Bench of this Court opined :

We have been taken through the proceedings of the meeting

starting from 33rd meeting upto 38th meeting by both the

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learned Counsel appearing for the respective parties.

Considering the same it appears to us that the alleged

decision taken on the said Agenda No.5 in the 33rd and 34th

meeting is in dispute and final decision on the same has not

yet been taken and the alleged resolution on the said Item

No.5 still awaits ratification. In that view of the matter,

the High Court was wrong in deciding the disputed question

of fact in favour of Respondent No.1. We, therefore set

aside the impugned order of the Delhi High Court as

according to us the final decision on the resolution taken

on the said Agenda No.5 has not yet been finally ratified.

We are not inclined to consider the other questions sought

to be raised in this appeal and the said questions are kept

open. In view of the pendency of the matter for a long

time, we direct the appellantcompany to convene the meeting

of Staff Committee as early as practicable but not exceeding

two months from today so that the question of ratification

of the resolution on the said Agenda No.5 taken in the

meeting of the Staff Committee is finally decided.

Pursuant to the above directions, the Staff Committee

met again and considered the entire issue and came to the

conclusion that the order passed by the Director General

terminating the services of the respondent on 28th June,

1989 was legal, proper and valid. The appeal was dismissed

and the removal of the respondent for causing sexual

harassment to Miss X was upheld. The respondent,

thereupon, filed Writ Petition No.352 of 1995 in the High

Court, challenging his removal from service as well as the

decision of the Staff Committee dismissing his departmental

appeal. The learned Single Judge allowing the Writ Petition

opined that ... the petitioner tried to molest and not

that the petitioner had in fact molested the complainant.

The learned Single Judge, therefore, disposed of the Writ

Petition with a direction that the respondent be reinstated

in service but that he would not be entitled to receive any

back wages. The appellant was directed to consider the

period between the date of removal of the respondent from

service and the date of reinstatement as the period spent on

duty and to give him consequential promotion and all other

benefits. It was, however, directed that the respondent be

posted in any other office outside Delhi, at least for a

period of two years. The appellant being aggrieved by the

order of reinstatement filed Letters Patent Appeal No.27 of

1997 before the Division Bench of the High Court. The

respondent also filed Letters Patent Appeal No.79 of 1997

claiming back wages and appropriate posting. Some of the

lady employees of the appellant on coming to know about the

judgment of the learned Single Judge, directing the

reinstatement of the respondent, felt agitated and filed an

application seeking intervention in the pending L.P.A. The

Division Bench vide judgment and order dated 15th July,

1997, dismissed the L.P.A. filed by the appellant against

the reinstatement of the respondent. The Division Bench

agreed with the findings recorded by the learned Single

Judge that the respondent had tried to molest and that he

had not actually molested Miss X and that he had not

managed to make the slightest physical contact with the

lady and went on to hold that such an act of the respondent

was not a sufficient ground for his dismissal from service.

Commenting upon the evidence, the Division Bench observed :

We have been taken in detail through the

evidence/deposition of Miss X. No part of that evidence

discloses that A.K. Chopra even managed to make the

slightest physical contact with the lady. The entire

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deposition relates that A.K. Chopra tried to touch her. As

we have said that no attempts made, allegedly by A.K.

Chopra, succeeded in making physical contact with Miss X,

even in the narrow confines of a Hotel lift. To our mind,

on such evidence as that was produced before the Enquiry

Officer, it is not even possible to come to a conclusion

that there is an attempt to molest as there have been no

physical contact. There being no physical contact between

A.K. Chopra and Miss X, there cannot be any attempt to

tried to molest on the part of A.K. Chopra. (Emphasis

ours)

Aggrieved by the judgment of the Division Bench, the

employer- appellant has filed this appeal by special leave.

We have heard learned counsel for the parties and perused

the record. The Enquiry Officer has found the charges

established against the respondent. He has concluded that

the respondent was guilty of molestation and had tried to

physically assault Miss X. The findings recorded by the

Enquiry Officer and the Disciplinary Authority had been

confirmed by the Appellate Authority (the Staff Committee)

which admittedly had co-extensive powers to re-appreciate

the evidence as regards the guilt as well as about the

nature of punishment to be imposed on the respondent. The

Staff Committee while dealing with the question of

punishment has observed : Shri Chopra has also mentioned

in his appeal that the penalty on him was harsh and

disproportionate to the charge levelled against him. On

this, the Staff Committee observed that no lenient view

would be justified in a case of molestation of a woman

employee when the charge was fully proved. Any lenient

action in such a case would have a demoralizing effect on

the working women. The Staff Committee, therefore, did not

accept the plea of Shri Chopra that a lenient view be taken

in his case.

The learned Single Judge, did not doubt the

correctness of the occurrence. He did not disbelieve the

complainant. On a re- appreciation of the evidence on the

record, the learned Single Judge, however, drew his own

inference and found that the respondent had tried to

molest but since he had not actually molested the

complainant, therefore, the action of the respondent did not

warrant removal from service. The learned Single Judge

while directing the reinstatement of the respondent observed

: 15. In the totality of facts and circumstances, ends of

justice would meet if the petitioner is reinstated in

service but he would not be entitled to any back wages. The

Council shall consider this period as on duty and would give

him consequential promotion to the petitioner. He shall be

entitled to all benefits except back wages. The petitioner

shall be posted in any other office outside Delhi, at least

for a period of two years." (Emphasis ours)

The Division Bench of the High Court also while

dismissing the L.P.A. filed by the appellant did not doubt

the correctness of the occurrence. It also concluded that

since the respondent had not actually molested Miss X and

had only tried to assault her and had not managed to make

any physical contact with her, a case of his removal from

service was not made out. Both the learned Single Judge and

the Division Bench did not doubt the correctness of the

following facts : 1. That Miss X was a subordinate

employee while the respondent was the superior officer in

the organization; 2. That Miss X was not qualified to take

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any dictation and had so told the respondent; 3. That the

respondent pressurized her to come with him to Taj Palace

Hotel to take dictation despite her protestation, with an

ulterior design; 4. That the respondent taking advantage

of his position, tried to molest Miss X and in spite of her

protestation, continued with his activities which were

against the moral sanctions and did not withstand the test

of decency and modesty; 5. That the respondent tried to

sit too close to Miss X with ulterior motives and all along

Miss X kept reprimanding him but to no avail; 6. That the

respondent was repeating his implicit unwelcome sexual

advances and Miss X told him that if he continued to behave

in that fashion, she would leave that place; 7. That the

respondent acted in a manner which demonstrated unwelcome

sexual advances, both directly and by implication; 8. That

action of the respondent created an intimidated and hostile

working environment in so far as Miss X is concerned.

The above facts are borne out from the evidence on the

record and on the basis of these facts, the departmental

authorities keeping in view the fact that the actions of the

respondent were considered to be subversive of good

discipline and not conducive to proper working in the

appellant Organization where there were a number of female

employees, took action against the respondent and removed

him from service. The High Court appears to have

over-looked the settled position that in departmental

proceedings, the Disciplinary Authority is the sole Judge of

facts and in case an appeal is presented to the Appellate

Authority, the Appellate Authority has also the power/and

jurisdiction to re-appreciate the evidence and come to its

own conclusion, on facts, being the sole fact finding

authorities. Once findings of fact, based on appreciation

of evidence are recorded, the High Court in Writ

Jurisdiction may not normally interfere with those factual

findings unless it finds that the recorded findings were

based either on no evidence or that the findings were wholly

perverse and/or legally untenable. The adequacy or

inadequacy of the evidence is not permitted to be canvassed

before the High Court. Since, the High Court does not sit

as an Appellate Authority, over the factual findings

recorded during departmental proceedings, while exercising

the power of judicial review, the High Court cannot normally

speaking substitute its own conclusion, with regard to the

guilt of the delinquent, for that of the departmental

authorities. Even insofar as imposition of penalty or

punishment is concerned, unless the punishment or penalty

imposed by the Disciplinary or the Departmental Appellate

Authority, is either impermissible or such that it shocks

the conscience of the High Court, it should not normally

substitute its own opinion and impose some other punishment

or penalty. Both the learned Single Judge and the Division

Bench of the High Court, it appears, ignored the

well-settled principle that even though Judicial Review of

administrative action must remain flexible and its dimension

not closed, yet the Court in exercise of the power of

judicial review is not concerned with the correctness of the

findings of fact on the basis of which the orders are made

so long as those findings are reasonably supported by

evidence and have been arrived at through proceedings which

cannot be faulted with for procedural illegalities or

irregularities which vitiate the process by which the

decision was arrived at. Judicial Review, it must be

remembered, is directed not against the decision, but is

confined to the examination of the decision-making process.

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Lord Haltom in Chief Constable of the North Wales Police v.

Evans, (1982) 3 All ER 141, observed : The purpose of

judicial review is to ensure that the individual receives

fair treatment, and not to ensure that the authority, after

according fair treatment, reaches, on a matter which it is

authorized by law to decide for itself, a conclusion which

is correct in the eyes of the court.

Judicial Review, not being an appeal from a decision,

but a review of the manner in which the decision was arrived

at, the Court while exercising the power of Judicial Review

must remain conscious of the fact that if the decision has

been arrived at by the Administrative Authority after

following the principles established by law and the rules of

natural justice and the individual has received a fair

treatment to meet the case against him, the Court cannot

substitute its judgment for that of the Administrative

Authority on a matter which fell squarely within the sphere

of jurisdiction of that authority. It is useful to note the

following observations of this Court in Union of India v.

Sardar Bahadur, (1972) 4 SCC 618 : Where there are some

relevant materials which the authority has accepted and

which materials may reasonably support the conclusion that

the officer is guilty, it is not the function of the High

Court exercising its jurisdiction under Article 226 to

review the materials and to arrive at an independent finding

on the materials. If the enquiry has been properly held the

question of adequacy or reliability of the evidence cannot

be canvassed before the High Court.

After a detailed review of the law on the subject,

this Court while dealing with the jurisdiction of the High

Court or Tribunal to interfere with the disciplinary matters

and punishment in Union of India v. Parma Nanda, (1989) 2

SCC 177, opined : We must unequivocally state that the

jurisdiction of the Tribunal to interfere with the

disciplinary matters or punishment cannot be equated with an

appellate jurisdiction. The Tribunal cannot interfere with

the findings of the Enquiry Officer or Competent Authority

where they are not arbitrary or utterly perverse. It is

appropriate to remember that the power to impose penalty on

a delinquent officer is conferred on the competent authority

either by an Act of Legislature or Rules made under the

proviso to Article 309 of the Constitution. If there has

been an enquiry consistent with the rules and in accordance

with principles of natural justice what punishment would

meet the ends of justice is a matter of exclusively within

the jurisdiction of the competent authority. If the penalty

can lawfully be imposed and is imposed on the proved

misconduct, the Tribunal has no power to substitute its own

discretion for that of the authority.

In B.C. Chaturvedi v. Union of India, (1995 ) 6 SCC

749, this Court opined : The disciplinary authority is the

sole judge of facts. Where appeal is presented, the

appellate authority has coextensive power to reappreciate

them evidence or the nature of punishment. In a

Disciplinary Enquiry, the strict proof of legal evidence and

findings on that evidence are not relevant. Adequacy of

evidence or reliability of evidence cannot be permitted to

be canvassed before the Court/Tribunal.

Further it was held :

A review of the above legal position would establish

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that the disciplinary authority, and on appeal the appellate

authority, being fact-finding authorities have exclusive

power to consider the evidence with a view to maintain

discipline. They are invested with the discretion to impose

appropriate punishment keeping in view the magnitude or

gravity of the misconduct. The High Court/Tribunal, while

exercising the power of judicial review, cannot normally

substitute its own conclusion on penalty and impose some

other penalty. If the punishment imposed by the

disciplinary authority or the appellate authority shocks the

conscience of the High Court/Tribunal, it would

appropriately mould the relief, either directing the

disciplinary/appellate authority to reconsider the penalty

imposed, or to shorten the litigation, it may itself, in

exceptional and rare cases, impose appropriate punishment

with cogent reasons in support thereof.

( Emphasis supplied)

Again in Government of Tamil Nadu and another v. A.

Rajapandian, 1995(1) SCC 216, this Court opined : It has

been authoritatively settled by string of authorities of

this Court that the Administrative Tribunal cannot sit as a

court of appeal over a decision based on the findings of the

inquiring authority in disciplinary proceedings. Where

there is some relevant material which the disciplinary

authority has accepted and which material reasonably

supports the conclusion reached by the disciplinary

authority, it is not the function of the Administrative

Tribunal to review the same and reach different finding than

that of the disciplinary authority. The Administrative

Tribunal, in this case, has found no fault with the

proceedings held by the inquiring authority. It has quashed

the dismissal order by re-appreciating the evidence and

reaching a finding different than that of the inquiring

authority. (Emphasis ours) In the established facts and

circumstances of this case, we have no hesitation to hold,

at the outset, that both the learned Single Judge and the

Division Bench of the High Court fell into patent error in

interfering with findings of fact recorded by the

departmental authorities and interfering with the quantum of

punishment, as if the High Court was sitting in appellate

jurisdiction. From the judgments of the learned Single

Judge as well as the Division Bench, it is quite obvious

that the findings with regard to an unbecoming act

committed by the respondent, as found by the Departmental

Authorities, were not found fault with even on

re-appreciation of evidence. The High Court did not find

that the occurrence as alleged by the complainant had not

taken place. Neither the learned Single Judge nor the

Division Bench found that findings recorded by the Enquiry

Officer or the Departmental Appellate Authority were either

arbitrary or even perverse. As a matter of fact, the High

Court found no fault whatsoever with the conduct of Enquiry.

The direction of the learned Single Judge to the effect that

the respondent was not entitled to back wages and was to be

posted outside the city for at least two years, which was

upheld by the Division Bench, itself demonstrates that the

High Court believed the complainants case fully for

otherwise neither the withholding of back wages nor a

direction to post the respondent outside the city for at

least two years was necessary. The High Court in our

opinion fell in error in interfering with the punishment,

which could be lawfully imposed by the departmental

authorities on the respondent for his proven misconduct. To

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hold that since the respondent had not actually molested

Miss X and that he had only tried to molest her and had

not managed to make physical contact with her, the

punishment of removal from service was not justified was

erroneous. The High Court should not have substituted its

own discretion for that of the authority. What punishment

was required to be imposed, in the facts and circumstances

of the case, was a matter which fell exclusively within the

jurisdiction of the competent authority and did not warrant

any interference by the High Court. The entire approach of

the High Court has been faulty. The impugned order of the

High Court cannot be sustained on this ground alone. But

there is another aspect of the case which is fundamental and

goes to the root of the case and concerns the approach of

the Court while dealing with cases of sexual harassment at

the place of work of female employees. The High Court was

examining disciplinary proceedings against the respondent

and was not dealing with criminal trial of the respondent.

The High Court did not find that there was no evidence at

all of any kind of molestation or assault on the person

of Miss X. It appears that the High Court re-appreciated

the evidence while exercising power of judicial review and

gave meaning to the expression molestation as if it was

dealing with a finding in a criminal trial. Miss X had used

the expression molestation in her complaint in a general

sense and during her evidence she has explained what she

meant. Assuming for the sake of argument that the

respondent did not manage to establish any physical

contact with Miss X, though the statement of management

witness Suba Singh shows that the respondent had put his

hand on the hand of Miss X when he surprised them in the

Business Centre, it did not mean that the respondent had not

made any objectionable overtures with sexual overtones.

From the entire tenor of the cross-examination to which Miss

X was subjected to by the respondent, running into about 17

typed pages and containing more than one hundred & forty

questions and answers in cross-examinations, it appears that

the effort of respondent was only to play with the use of

the expressions molestation and physical assault by her

and confuse her. It was not the dictionary meaning of the

word molestation or physical assault which was relevant.

The statement of Miss X before the Enquiry Officer as well

as in her complaint unambiguously conveyed in no uncertain

terms as to what her complaint was. The entire episode

reveals that the respondent had harassed, pestered and

subjected Miss X, by a conduct which is against moral

sanctions and which did not withstand the test of decency

and modesty and which projected unwelcome sexual advances.

Such an action on the part of the respondent would be

squarely covered by the term sexual harassment. The

following statement made by Miss X at the enquiry : When I

was there in the Chairmans room I told Mr. Chopra that

this was wrong and he should not do such things. He tried

to persuade me by talking. ......................... I

tried to type the material but there were so many mistakes.

He helped me in typing. There he tried to blackmail me.

................. He tried to sit with me. In between he

tried to touch me............................ Mr. Chopra

again took me to the Business Centre. Thereafter again he

tried. I told him I will go out if he does like this. Then

he went out. Again he came back. In between he tried.

(Emphasis supplied) unmistakably shows that the conduct of

the respondent constituted an act unbecoming of good

behaviour, expected from the superior officer. Repeatedly,

did Miss X state before the Enquiry Officer that the

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respondent tried to sit close to her and touch her and that

she reprimanded him by asking that he should not do these

things. The statement of Miss Rama Kanwar, the management

witness to the effect that when on 16th August she saw Miss

X and asked her the reason for being upset, Miss X kept on

weeping and told her she could not tell being unmarried,

she could not explain what had happened to her. The

material on the record, thus, clearly establishes an

unwelcome sexually determined behaviour on the part of the

respondent against Miss X which was also an attempt to

outrage her modesty. Any action or gesture, whether

directly or by implication, aims at or has the tendency to

outrage the modesty of a female employee, must fall under

the general concept of the definition of sexual harassment.

The evidence on the record clearly establishes that the

respondent caused sexual harassment to Miss X, taking

advantage of his superior position in the Council. Against

the growing social menace of sexual harassment of women at

the work place, a three Judge Bench of this Court by a

rather innovative judicial law making process issued certain

guidelines in Vishaka v. State of Rajasthan, (1997) 6 SCC

241, after taking note of the fact that the present civil

and penal laws in the country do not adequately provide for

specific protection of woman from sexual harassment at

places of work and that enactment of such a legislation

would take a considerable time. In Vishakas case (supra),

a definition of sexual harassment was suggested. Verma, J.,

(as the former Chief Justice then was), speaking for the

three-Judge Bench opined : 2. Definition : For this

purpose, sexual harassment includes such unwelcome sexually

determined behaviour (whether directly or by implication) as

: (a) physical contact and advances; (b) a demand or

request for sexual favours; (c) sexually-coloured remarks;

(d) showing pornography; (e) any other unwelcome physical,

verbal or non- verbal conduct of sexual nature.

Where any of these acts is committed in circumstances

whereunder the victim of such conduct has a reasonable

apprehension that in relation to the victims employment or

work whether she is drawing salary, or honorarium or

voluntary, whether in government, public or private

enterprise such conduct can be humiliating and may

constitute a health and safety problem. It is

discriminatory for instance when the woman has reasonable

grounds to believe that her objection would disadvantage her

in connection with her employment or work including

recruiting or promotion or when it creates a hostile work

environment. Adverse consequences might be visited if the

victim does not consent to the conduct in question or raises

any objection thereto.

An analysis of the above definition, shows that sexual

harassment is a form of sex discrimination projected through

unwelcome sexual advances, request for sexual favours and

other verbal or physical conduct with sexual overtones,

whether directly or by implication, particularly when

submission to or rejection of such a conduct by the female

employee was capable of being used for effecting the

employment of the female employee and unreasonably

interfering with her work performance and had the effect of

creating an intimidating or hostile working environment for

her. There is no gainsaying that each incident of sexual

harassment, at the place of work, results in violation of

the Fundamental Right to Gender Equality and the Right to

Life and Liberty the two most precious Fundamental Rights

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guaranteed by the Constitution of India. As early as in

1993 at the ILO Seminar held at Manila, it was recognized

that sexual harassment of woman at the work place was a form

of gender discrimination against woman. In our opinion,

the contents of the fundamental rights guaranteed in our

Constitution are of sufficient amplitude to encompass all

facets of gender equality, including prevention of sexual

harassment and abuse and the courts are under a

constitutional obligation to protect and preserve those

fundamental rights. That sexual harassment of a female at

the place of work is incompatible with the dignity and

honour of a female and needs to be eliminated and that there

can be no compromise with such violations, admits of no

debate. The message of international instruments such as

the Convention on the Elimination of All Forms of

Discrimination Against Women, 1979 (CEDAW) and the Beijing

Declaration which directs all State parties to take

appropriate measures to prevent discrimination of all forms

against women besides taking steps to protect the honour and

dignity of women is loud and clear. The International

Covenant on Economic, Social and Cultural Rights contains

several provisions particularly important for women.

Article 7 recognises her right to fair conditions of work

and reflects that women shall not be subjected to sexual

harassment at the place of work which may vitiate working

environment. These international instruments cast an

obligation on the Indian State to gender sensitise its laws

and the Courts are under an obligation to see that the

message of the international instruments is not allowed to

be drowned. This Court has in numerous cases emphasised

that while discussing constitutional requirements, court and

counsel must never forget the core principle embodied in the

International Conventions and Instruments and as far as

possible give effect to the principles contained in those

international instruments. The Courts are under an

obligation to give due regard to International Conventions

and Norms for construing domestic laws more so when there is

no inconsistency between them and there is a void in

domestic law. [See with advantage Prem Sankar v. Delhi

Administration, AIR 1980 SC 1535; Mackninnon Mackenzie and

Co. v. Audrey D Costa, (1987) 2 SCC 469 JT 1987 (2) SC

34; Sheela Barse v. Secretary, Childrens Aid Society,

(1987) 3 SCC 50 at p.54; Vishaka & others v. State of

Rajasthan & Ors., JT 1997 (7) SC 392; Peoples Union for

Civil Liberties v. Union of India & Anr., JT 1997 (2) SC

311 and D.K. Basu & Anr. v. State of West Bengal & Anr.,

(1997) 1 SCC 416 at p.438]. In cases involving violation of

human rights, the Courts must for ever remain alive to the

international instruments and conventions and apply the same

to a given case when there is no inconsistency between the

international norms and the domestic law occupying the

field. In the instant case, the High Court appears to have

totally ignored the intent and content of the International

Conventions and Norms while dealing with the case. The

observations made by the High Court to the effect that since

the respondent did not actually molest Miss X but only

tried to molest her and, therefore, his removal from

service was not warranted rebel against realism and lose

their sanctity and credibility. In the instant case, the

behaviour of respondent did not cease to be outrageous for

want of an actual assault or touch by the superior officer.

In a case involving charge of sexual harassment or attempt

to sexually molest, the courts are required to examine the

broader probabilities of a case and not get swayed by

insignificant discrepancies or narrow technicalities or

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dictionary meaning of the expression molestation. They

must examine the entire material to determine the

genuineness of the complaint. The statement of the victim

must be appreciated in the background of the entire case.

Where the evidence of the victim inspires confidence, as is

the position in the instant case, the courts are obliged to

rely on it. Such cases are required to be dealt with great

sensitivity. Sympathy in such cases in favour of the

superior officer is wholly misplaced and mercy has no

relevance. The High Court overlooked the ground realities

and ignored the fact that the conduct of the respondent

against his junior female employee, Miss X, was wholly

against moral sanctions, decency and was offensive to her

modesty. Reduction of punishment in a case like this is

bound to have demoralizing effect on the women employees and

is a retrograde step. There was no justification for the

High Court to interfere with the punishment imposed by the

departmental authorities. The act of the respondent was

unbecoming of good conduct and behaviour expected from a

superior officer and undoubtedly amounted to sexual

harassment of Miss X and the punishment imposed by the

appellant, was, thus, commensurate with the gravity of his

objectionable behaviour and did not warrant any interference

by the High Court in exercise of its power of judicial

review. At the conclusion of the hearing, learned counsel

for the respondent submitted that the respondent was

repentant of his actions and that he tenders an unqualified

apology and that he was willing to also go and to apologize

to Miss X. We are afraid, it is too late in the day to show

any sympathy to the respondent in such a case. Any lenient

action in such a case is bound to have demoralizing effect

on working women. Sympathy in such cases is uncalled for

and mercy is misplaced. Thus, for what we have said above

the impugned order of the High Court is set aside and the

punishment as imposed by the Disciplinary Authority and

upheld by the Departmental Appellate Authority of removal of

the respondent from service is upheld and restored. The,

appeals, thus succeed and are allowed. We, however, make no

order as to costs.