WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 06.04.2009 Pronounced on : 12.10.2009 + WP (C) No.1730/2001 U.S. Verma, Principal, D.P.S. Faridabad ………… Petitioner Through : Mr. Raju Ramachandran, Sr. Advocate with Mr. Reetesh Singh and Mr. R.P. Singh, Advocates WP(C) No.1733/2001 Delhi Public School Society ………… Petitioner Through : Mr. Rakesh K. Khanna, Sr. Advocate with Mr. Puneet Mittal and Mr. Surya Kant, Advocates Versus National Commission for Women & Ors. ……… Respondents Through : Ms. Malvika Rajkotia, Advocate WP(C) No.1731/2001 Jayshri Kannan and Anr. ………. Petitioners Through : Ms. Malvika Rajkotia, Advocate Versus U.S. Verma & Ors. ………. Respondents Through : Mr. Raju Ramachandran, Sr. Advocate with Mr.Reetesh Singh and Mr. R.P. Singh, Advocates for Respondent No.1. Through : Mr. Rakesh K. Khanna, Sr. Advocate with Mr. Puneet Mittal and Mr. Surya Kant, Advocates for DPS Society. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT 1. Whether the Reporters of local papers Yes may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 2 3. Whether the judgment should be Yes reported in the Digest? HON’BLE MR. JUSITCE S.RAVINDRA BHAT * 1. In W.P. No.1730/2001, two inquiry reports dated 29.06.1999 regarding the alleged sexual harassment at Delhi Public School, Faridabad (hereafter the “School”) issued by the National Commission for Women (first respondent, hereafter “the Commission”) are impugned. The petitioner is hereafter referred to as “Verma”. One report, as received by him, is alleged to be of a three-member committee and the other, of a four-member committee, received by the DPS Society; both these committees were constituted on 25.05.1999. It is stated that both committees were constituted to look into the same allegations made by the common complainants (respondents no. 3 to 6, who are petitioners in W.P.-1731/2001 and referred to as “the teachers”) in complaints dated 09.04.1999. Both the reports are similar in content and their conclusions are based on evaluation of common facts and statements of the same witnesses. The complaints were made before the Chairman of the Delhi Public School Society (hereafter DPS Society), by the teachers. The DPS Society has filed W.P. (C) No.1733/2001, and concerned allegations of sexual harassment by Verma, of the three complainants. 2. Verma alleges that the Commission could not have constituted two separate committees to investigate into the same matter on same date. It is pointed out that the four-member committee comprised of all the three members of the other committee, which was the three-member committee. The fourth member of the committee never participated in the proceedings. It was alleged that the no such committee was ever constituted and the reports were a sham, by pointing out that the petitioner was never informed about constitution of any committees. It is also stated that out of the four WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 3 complaints only one, dated 17.11.1998, was made to the Commission and the rest were addressed to the Chairman DPS Society. Verma states that on the back of these complaints contained an endorsement “delivered by hand, received by me on 17.05.1999” sd/- Shayeeda S. Hameed. Further, the two reports talk of the press conference held on 13.05.1999 held by the Commission along with the complainants. Thus, the Commission is put in the position of the complainants and as such it be could not be allowed to be a judge in its own cause. The approach of the Commission is challenged as being contrary to principles of natural justice and in transgression of all norms of exercise of legal authority since neither a copy of the complaints nor the material on which the investigation was initiated were ever supplied to Verma, despite repeated requests. His rights were prejudiced, as a notice of contents of the charges was never supplied to him; he was also never called upon to respond to any of the complaints; only summons were issued to him on 28.05.1999 to attend and depose before the Commission, without disclosing to him in what capacity and for what purpose was he had to report. The summons were not issued by any of the two committees formed for investigating the matter. 3. It is stated that the committees summoned none of the witnesses rather it was the Commission that summoned the witnesses. Two witnesses’ statements, i.e. Dr. Kamla Chowdhary and Justice (Retd.) N.N. Goswamy, Chairman, DPS Society were recorded on 25.05.1999 and summons were issued to them on 21.05.2009, four days prior to the constitution of the two committees. In the absence of any committee (on the date of issuing summons) the witnesses could not have deposed before such committees. It is also pointed out that no proceeding of the Commission ever took place. Verma states that only after repeated requests for providing a copy of the complaints and the documents, was he merely allowed to see and note down the contents of the complaints on 11.06.1999, and except for complaint dated 17.11.1998 WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 4 no other complaint was made to the Commission. The Commission by neither putting Verma to notice nor supplying him a copy of the complaints and other documents violated principles of natural justice. The two reports nowhere discuss the dates on which the complaints were received, by Commission. Verma was neither given any notice nor allowed to participate in the day-to-day proceedings before the committees, and he was not permitted to cross-examine the witness or engage the services of an advocate. The complainants were allowed assistance by lawyers and NGOs. Further the citation of the instances of sexual harassments, innuendo, assault, demand for sexual favour and verbal abuses made against him are devoid of any particulars, vague and unspecific. The reports do not point out instances relating to which complainants aired their grievances. 4. Verma also challenges report of Dr. Kamla Chowdhary dated 17.02.1999, and other instances of sexual harassment, which were subsequently brought to the Commission’s notice. He states that the four complaints shown to him were the complaints of Shyista Jabeen Raza, Jayshree Kannan and Shrini Kaul, dated 09.04.1999 and the complaint of Mrs. Anju Gupta dated 22.04.1999. Therefore it was not possible to give a report on the complaints two months before their presentation. He questions the veracity of the report of 17.02.1999 as it was without informing him of the charges against him or providing him a copy of the complaint and requiring him to appear. The authenticity of Dr. Chowdhary’s report dated 17.02.1999 is also doubted as it does not mention of recording of statements of the witnesses, and, being conjectural, is based on no evidence. Verma contends that Dr. Chowdhary, in her letter dated 05.04.1999, admitted that no evidence was recorded by her before writing her report. 5. The finding in Ms. Choudhry’s report regarding the DPS Society having not taken any action despite request by the Commission and letter dated 09.05.1999 of IFSHA / WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 5 SHAKSHI (NGOs) is alleged as incorrect. It is stated that a five member “complaints committee” was constituted by the DPS Society on 20.04.1999, and the fact was revealed to the Commission. Verma denies refusing to accept summons as stated in the impugned reports. He also challenges the Commission’s action in examining the Vice Principal of DPS Faridabad, Mrs. Renu Mittal; she proceeded on leave on 08.05.1997 and rejoined on 26.08.1997 and the very next day she again proceeded on leave. Thereafter she got herself transferred to DPS, R.K. Puram and remained there ever since. Thus, she could possibly have nothing to depose. The complaints pertain to the period that she was not at DPS, Faridabad. The conduct of the Commission in not letting the teaching staff depose in Verma’s favour and when had also written letters to the Commission for this purpose, is also questioned. The finding in the impugned reports that any threats to complainants, intimidation or pressure to withdraw the complaints were brought to the notice of the school authorities is challenged. 6. It is pointed out that during a Press Conference on 13.05.1999 and at the time of lodging the FIR there were only three of the four complainants, the fourth complainant (fifth respondent) refused to respond to the summons issued by the Commission. In such circumstances it is hard to comprehend why the impugned reports were made in respect of four complainants. Verma alleges that a reading of the impugned reports shows that no witness supported the allegations or corroborated the complainants’ version. It is submitted that the Faridabad Police, (including senior officials of the rank of DSP and a lady inspector) investigated the complaints and concluded in the report dated 22.06.1999 that they were baseless, recommending cancellation of the FIR registered against Verma. Further the impugned reports are challenged as beyond the jurisdiction of the committees in as much as they recommend reinstatement of the complainant teachers and staff members with full back-wages and continuity of service, and termination of the Principal. In terms of Section 10 of the National Commission for WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 6 Women Act (the Act) the Commission merely has powers to investigate the matter. It is alleged that the conduct of the complainants, Respondents 2 to 6 was malafide and motivated in an attempt to lower the image of the school and Verma, its Principal. On the basis of the above, quashing of the two impugned reports dated 29.06.1999 is sought. 7. The teachers and the Commission deny Verma’s allegations, and urge that the report of the Sharda Nayak Committee (set up by the society hereafter called “the Vishakha Committee” or the “Sharda Nayak Committee”) cannot be accepted. They argue that the Commission’s report, written after following principles of natural justice, and recording depositions on oath, indicts Verma, and should be accepted. Their position is similar to what is taken by them in their writ petition, and would be discussed in detail, later in the judgment. The DPS Society’s writ petition 8. The DPS Society is aggrieved by the report of the National Commission. It claims to be an institution of repute, which has established several prominent and well known schools throughout the country. It contends that its Faridabad School was established in 1995 and that Verma was a leading spirit and had acted as its Principal. That school had 2600 students at the time of filing of the writ petition. It states that Verma had 38 years’ teaching experience with unblemished career and was responsible for building up the Faridabad school. 9. The DPS Society alleges that the teachers’ complaints are devoid of credence as all of them apparently colluded or joined hands to vilify Mr. Verma and the DPS Society. The DPS Society alleges that - Ms. Shyista Jabeen Raza (hereafter referred to as Ms. Raza) worked between 1.7.1997 and 7.4.1998 and was terminated due to inadequacies WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 7 in her work. The society relies upon memos issued to her on 20.08.1997, 22.09.1997 and 14.10.1997. It is alleged that Ms. Raza celebrated her birthday and accepted gifts from the students; the DPS Society also alleged that complaints were made against her from the Supervisor on two occasions. It is alleged that upon being served with the termination letter, Ms. Raza expressed the desire to resign; the affidavit of Ms. V. Lakshmi dated 28.07.1999 to that effect is relied upon. It is also alleged that after the termination on 9.4.1998 Ms. Raza sent a letter stating that she had suffered miscarriage on 7.4.1998 and was advised to rest for 45 days, she sought medical leave w.e.f. 13.04.1998. It is stated that on 9.4.1998 she met the then President of the Society Mr.Salmaan Khursheed and later wrote a letter on 30.04.1998 to the Member (Education) of the DPS Society. It is claimed that in that letter she leveled allegations of vindictiveness against the DPS Society. The DPS Society alludes to a review sought by Ms. Raza on 27.5.1998 regarding the termination of her services, which was rejected by the Society on 23.06.1998. In these circumstances, it is alleged that Ms. Raza joined DAV School, Ballabhgarh on 6.7.1998. The DPS Society alleges that on 11.10.1998 Ms. Raza wrote a letter to the then President of the Society where she admitted representing on 30.04.1998 and reiterating the allegations made. 10. As regards the second teacher, Ms. Jayshree Kannan (hereafter referred to as “Ms. Kannan”), it is alleged that she was appointed as TGT w.e.f. 1.7.1995 on probation for a year and that she applied for the post of PGT in 1998. The DPS Society contends that there were discrepancies in the work experience claimed by her. It is contended that during her employment, on 2.9.1996, Ms.Kannan by a letter requested to be relieved of her duties, as she needed to devote more time at home. The Society also contends that she worked between 1996-1998 till applying for the post of PGT and never asked for being relieved. It also alleged that Ms. Kannan was careless and lost two answer scripts, of mid semester exams of a class Tenth student. It is alleged that WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 8 while giving her explanation she never mentioned about any harassment. The Society alleges that on 12.10.1998, the Secretary of the Principal of the Faridabad School noticed variation in Ms.Kannan’s experience and credentials and submitted a note, which led to her being called by the Principal and discrepancies being pointed out. This ultimately resulted in her stopping to report to the school w.e.f. 12.10.1998 when she also resigned. Later she wrote on 15.10.1998 stating her desire to withdraw the resignation letter. It is contended that for the first time on 20.10.1998 Ms.Kannan wrote a detailed letter to the Chairman of the DPS Society complaining against Verma leveling allegations without any allegation of sexual harassment. The DPS Society refers to further correspondence between her and the school whereby acrimonious letters were written when she was asked to report on her absence; it is alleged that in a later letter dated 2.12.1998, though several allegations were made, nothing about the sexual harassment by Verma was ever referred to. 11. About Ms. Anju Gupta, the third teacher, the Society alleges that she was appointed as TGT on 1.7.1995 to teach Physics. The society refers to several complaints received about her performance and her eventual resignation on 23.07.1996. The Society states that though the resignation was submitted, it was not forwarded by the Principal for acceptance to the Society; however, Ms. Gupta’s record was erratic and she sought 47 days’ leave in 1998-1999. It is stated that eventually she resigned on 11.11.1998 on the basis of a medical certificate stating that she suffered from mitral wall prolapse syndrome. 12. The last staff member Ms. Shrini Kaul, the sixth respondent in the DPS Society’s petition, joined the School on ad-hoc basis on 15.4.1998 and worked till 31.3.1999; as Receptionist. The DPS Society refers to some general allegations about Ms. Kaul’s alleged misconduct and what it terms as her objectionable behaviour. It relies upon the WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 9 complaint of a parent and states that Ms. Kaul used to travel in private cars after school hours. The Society alleges that the Principal of the School, on 4.12.1998, saw her boarding a Maruti car and confronted her next day, upon which she became furious, alleging that it was her personal matter. 13. The Society alleges having received a letter from Ms. Raza dated 1.12.1998 and its President, referring the matter to the Member (Education) who in turn placed it before the Chairman – Justice (Retd.) N.N. Goswami (hereafter “the Chairman”). He requested Ms. Kamla Choudhry to look into the matter and report to him. On 11.1.1999 Dr. Kamla Choudhry informed Verma that the DPS Society constituted a two-Member Committee comprising herself and Ms. Sharda Nayak asking him to appear before that Committee on 14.1.1999. The DPS Society states that on 17.2.1999 Dr. Choudhry forwarded a report. The same is produced with the petition. It would be relevant at this stage to extract the said letter, which reads as follows: - “February 17, 1999 Justice N.N. Goswamy, DPS Society Flat No.26 & 27, F-Block DPS Staff Chambers East of Kailash New Delhi – 110 065 Dear Justice Goswamy: You have referred to me two cases of alleged sexual harassment from teachers of DPS, Faridabad, against Mr. U.S. Verma, Principal of the School. The two files refer to the cases of – (i) Mrs. Sayishta Jabeen Raza (ii) Jayshri Kannan. I have interviewed Principal Verma, as well as Mrs. Raza and Jayshri Kannan. In addition I have interviewed 4 others who have left the school WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 10 alleging in two cases, sexual harassment, and in other two cases “harassment” and unbecoming behavior of the Principal. I have gone through the files and listened to the Principal and the six aggrieved persons – most of whom have left service. After the long and painful interviews I have no doubt in my mind that sexual harassment and blatant outrage of women’s modesty has taken place in at least 3 cases and plain harassment in two cases. The wealth of detail in the women’s descriptions of the events, settings, Principal Verma’s conversations and actions conveyed complete conviction, a sense of authenticity that was enhanced by the evident pain which accompanied the revelations. Several of them alleged that Principal Verma was able to get ‘signed papers’ supporting his version of any event he chose to highlight from some people who worked for the school. Because of fear and hope of favors, they did what he asked them to do in terms of helping to fabricate the documents he needed for harassment. Independently, some of the women who tried to stand up to him, mentioned that Principal Verma said nothing could happen to him since - in his words - “the President is in my right pocket, and the Chairman in my left pocket”. These very words were quoted independently by 4 of the interviewees. Attempts at ‘physical contact’ was mentioned by 3 persons. The violation of ‘decency’ was alleged by all. The rejection of Principal Verma’s sexual advances was used for issuing notices alleging that work was not being properly carried out. The statement of Chief Justice A.S. Anand of the Supreme Court seems to describe the situation of the interviewees well. Chief Justice Anand said that “sexual harassment is a form of discrimination projected through unwelcome sexual advances, the request of sexual favors and other verbal and physical conduct with sexual overtures, either directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance”. Further, he stated “the behavior of the accused did not cease to be outrageous for want of an actual assault or WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 11 touch by the superior officer”. Principal Verma’s behavior seems to have gone even further than the criteria laid by the Supreme Court. The evidence of the 6 women interviewed inspired confidence. And although I believe that further investigation is not necessary, if however, this investigation has to be pursued further then in order to have a fearless probe the right conditions by speaking fearlessly will have to be assured so that nepotism does not subvert a free and fair probe. Given the contemporary sensitivity of the issue of sexual harassment in our public life, the possibility that the media already has a scent of these happenings, I believe the Chairman needs to take strong and urgent action so that when this Pandora Box does open – as is quite possible – there is no room for an impression to be created that the DPS Society and its offices bearers were tolerating such reprehensible behavior. Best wishes, Yours sincerely Sd/- (Kamla Chowdhry) Vice-President : DPS” 14. Apparently, in a subsequent meeting, senior Members of the Working Committee of the Society discussed the report during which Dr. Kamla Choudhry stressed about the need for confidentiality. The DPS Society refers to a letter written by Dr. Kamla Choudhry on 5.4.1999 stating as follows:- “You mentioned in the meeting that in the files referred to me of Mrs. Sayisha Jabeen Raza, and of Jayshri Kannan, no mention of sexual harassment has been made. I agreed that in the written files of these two teachers, accusations of sexual harassment have not been made. IT was only during the interviews with these two teachers and others I invited that considerable data emerged which led me to the conclusion that a serious problem exists in DPS Faridabad and that the Society needs to take urgent concrete steps in handling it. WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 12 In the meeting on April 1 you had asked me to find out if the women who allege sexual harassment will write to you, giving details of such harassment. The teachers and other employees who alleged sexual harassment say that they have already given details of such harassment to The Society via the Vice-President. They were reluctant to put it down on papers fearing that the Principal with his power base in Faridabad might harm them further. However, if the Society wishes written notes (even after my investigation!) three of the interviewees were ready to do so and will be sending it o to you for further action. I assured them that you were keen on taking appropriate action and will be protected. I would like to emphasise again that it is important to take urgent action. The media has already a scent of these happenings and before this Pandora’s box opens publicly we should be seen to be doing the right thing at the right time. I also hope that you are considering the guide-lines as given by the Court for appointing a Complaints Committee for handling investigations of sexual harassment.” The above letter was written to the Chairman of the DPS Society, which says that immediately after the event, complaints were received by it, from Ms. Raza, Ms. Kannan and Ms. Kaul, on 17.04.1999, and that another complaint dated 22.4.1999 was received from Ms. Anju Gupta. The DPS Society alleges that these complaints were after thoughts and were concocted. It is alleged that the complainants and the National Commission, with an NGO held a press conference on 13.5.1999 leveling reckless allegations of sexual harassment in DPS, Faridabad. The DPS Society states that 105 teaching and non-teaching staff of the DPS, Faridabad in a meeting, resolved that the charges leveled against Verma were baseless; it refers to a Resolution forwarded to the Society on 19.5.1999. The Society states that in the meanwhile it had set up the Sharda Nayak Committee, which requested the complainants to attend its hearings. On 17.5.1999, two of the complainants – Ms. Raza and Ms. Kannan declined to appear before the Committee by writing letters; Ms. Kaul informed the Committee she had some prior engagements and was unable to attend the meeting. WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 13 15. The DPS Society submits that the National Commission preceded post-haste to lodge a complaint with the police authorities and also went ahead with own proceedings through two Committees. It also alludes to hearing dated 17.6.1999 and 21.6.1999 before the Sharda Nayak Committee when the complainants did not appear and the final date was fixed on 29.6.1999. It is contended that by then, the witnesses in support of Mr. Verma had been examined; the complainants appeared but did not depose and left the premises, which ultimately led to closure of the Society’s Committee proceedings. It is contended that the same day, i.e. 29.6.1999, the National Commission, without providing any opportunity to the DPS held a press conference and released its reports holding Verma