IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.6.2007 CORAM: THE HONOURABLE MR.JUSTICE DHARMA RAO ELIPE AND THE HONOURABLE MS.JUSTICE K. SUGUNA W.P. Nos.10157 of 2000 and 29024 of 2003 and W.P.M.P. No.17558 of 2006 W.P. No.10157 of 2000: G. Pushkala ... Petitioner Vs. 1. High Court of Judicature at Madras, rep. by its Registrar General, Chennai-104 2. K.Muthukumarasamy Deputy Registrar Tribunal CLAA (on deputation) High Court Campus Chennai-600104 3. V.Navaneethan Special Officer Vigilance Cell High Court, Chennai-104 ... Respondents W.P. No.29024 of 2003: K. Muthukumarasamy ... Petitioner Vs. The Registrar General High Court of Judicature at Madras Chennai 600 104 ... Respondent https://hcservices.ecourts.gov.in/hcservices/ Both the petitions are filed under Article 226 of the Constitution of India. W.P.No.10157 of 2000 has been filed praying to Issue a Writ of Declaration to declare that the enquiry constituted by the first respondent and being conducted by the 3rd respondent vide ROC NO.24/2000 Con B2 dated 14-6-2000 is illegal and unconstitutional and consequently direct the first respondent to implement the directions given by the Hon'ble Supreme Court in Vishaka vs. State of Rajasthan (AIR 1997 SC 3011) and properly investigate into the petitioner's complaint dated 18-2-2000 against the 2nd respondent through an independent complaints committee consisting of representatives of Women's Organisations and NGOs and punish him after affording due protection to the petitioner. W.P.No.29024 of 2003 has been filed praying to issue a Writ of Certiorarified Mandamus, to call for the records of the respondent in R.O.C. No.24/2000 Con B.2 dated 10.10.2002 and to quash the same, directing the respondent to reinstate the petitioner in service with all attendant benefits. For Petitioner : Mr. S.V.Jayaraman, in W.P.No.29024/03, Senior Counsel who is R2 in for Mr.K.Balachandran WP.10157/2003 For Petitioner in W.P.No.10157/00 : Ms.R.Vaigai For Respondent in W.P. No.29024/03 : Mr.B.Rajendran for R1 & R3 in W.P. No.10157/00 : Mr.C. Kalaiselvan AGP COMMON ORDER DHARMA RAO ELIPE, J. While the Complainant in the domestic enquiry, which was initiated on her complaint, has filed W.P.No.10157 of 2000 seeking a Writ of Declaration, the delinquent Officer who was inflicted with the order of compulsory retirement has filed W.P.No.29024 of 2003 challenging the said punishment. Since both the matters are inextricably connected with each other, they were heard together for better appreciation of the facts of the case and this common order is passed. https://hcservices.ecourts.gov.in/hcservices/ 2. On the basis of the complaint dated 18.2.2000 given by the petitioner in W.P.No.10157 of 2000 (hereinafter referred to as 'the complainant') against the petitioner in W.P.No.29024 of 2003 (hereinafter referred to as the delinquent officer), alleging 'sexual harassment' and 'indecent behaviour' at the place of work, disciplinary proceedings were initiated against the delinquent officer in which he was found guilty and the punishment of compulsory retirement from service was imposed on him. 3. The complaint against the delinquent-officer, in the words of the complainant, is as follows: "My Lord, with regret, I would like to submit that soon after days of my deputation to the Advisory Board, Mr. K. Muthukumarasamy started behaving with me in an improper manner by using intolerable words. He used to blabber so many things including saying that his wife is a permanent patient and that he is not leading a happy married life and so on. Since then, I have been avoiding him and he used to get annoyed for that. Later this became a nuisance and he started going to the extent of writing his expressions in bits of papers and giving it to me. Though, I use to destroy them then and there, I have some in hand. He even started calling my house in the midnights which I used to avoid saying one reason or the other. ... ... ... Now, though I have been transferred from the said Tribunal (CLAA) recently, he is continuing his harassment one way or the other. Even now instead of feeling remorse, he harasses me again and again by words and deeds." 4. A show cause notice was issued to the delinquent-officer calling upon him to submit his explanation. Since the explanation offered by the delinquent-officer was found to be not satisfactory, the following charges were framed against him and a departmental enquiry was initiated against him: 1.That you, Thiru Muthukumarasamy, Deputy Registrar, now on deputation as Deputy Registrar, Tribunal under Criminal Law Amendment Act, Chennai had behaved in an improper manner with Tmt. G. Pushkala, P.A. to Hon'ble Judges, while she was working as P.A. on deputation in the said Tribunal by issuing two slips to her containing the following words: "I want to kiss on cheeks, chin and lips" "Jd;gk; neh;ifapy; ahHpirj;J ,d;gk; nrh;f;f khl;lhah>" and this amounts to a demand or https://hcservices.ecourts.gov.in/hcservices/ request for sexual favours and sexual harassment at the place of work and thereby you outraged her modesty and caused mental torture and agony to her and thus committed the acts of misconduct unbecoming of a Government Servant for which you are liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 2.That you, Thiru K. Muthukumarasamy, Deputy Registrar, now on deputation as Deputy Registrar, Tribunal under Criminal Law Amendment Act, Chennai while Tmt.G. Pushkala, P.A. to Hon'ble Judges, was working as P.A. on deputation in the said Tribunal, called her house in the midnights and caused mental torture and agony to her and that even after her transfer from the said Tribunal, you had harassed her again and again by words and deeds, thereby outraged her modesty and caused mental torture and agony to her and thus committed the acts of misconduct unbecoming of a Government servant for which you are liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules." 6. In the enquiry proceedings, the complainant examined herself as P.W.1 and also examined five other persons, which included her husband, her colleague and other court-staff. She also produced eight documents as documentary evidence. The delinquent-officer examined a court-staff as defence witness and produced fourteen documents as documentary evidence. The enquiry officer, on the basis of the materials placed before him, came to the conclusion that the delinquent-officer harassed, pestered and subjected the complainant by a conduct against moral sanction and could not stand the test of decency and modesty and made unwelcome sexual advances, which action would squarely covered by the term "sexual harassment" even though there was no physical contact and held that the delinquent was guilty for the act of "sexual harassment" in the work place against the complainant and as such the charges levelled against the delinquent were proved. The delinquent-officer was given an opportunity to submit his further representation, if any, to the findings of the enquiry officer, but his further representation and representation made by him in person were found to be not satisfactory and the Appointing Authority has accepted the findings of the enquiry officer and imposed the punishment of "compulsory retirement" from service on the delinquent officer. 7. The learned senior counsel for the delinquent officer/petitioner in W.P.No.29024 of 2003 has submitted that the petitioner was originally appointed as Steno-Typist in the District https://hcservices.ecourts.gov.in/hcservices/ Court, Vellore in the Tamil Nadu Judicial Ministerial Service in the year 1981 and later on in the year 1988, he was appointed on transfer as P.A. to Hon'ble Judges and since his lien over the post in the parent department has not been severed as per the Fundamental Rules (FR) and Government Orders, his "Appointing Authority" is the District Judge, Vellore, who alone is competent to initiate disciplinary action and to impose punishment. It was further contended that since the alleged "sexual harassment" took place when the petitioner and the complainant were working in the Tribunal (CLAA), it is the Presiding Officer of the Tribunal who is the competent authority to initiate disciplinary action and to impose punishment and that Madras High Court Service Rules will have no bearing and as such, the disciplinary proceedings initiated by the respondent was in violation of the procedures as well as the C.C.A. Rules. 8. On the merits of the complaint, learned senior counsel for the delinquent officer submitted that the two slips in question were part of the materials prepared by the delinquent for submitting a dissertation on the subject "Child Labour – Exploitation Preventive Measures and Indepth Study" to the Annamalai University for completing his M.L. Degree Course. Learned senior counsel further submitted that the delinquent used to note down his thoughts on the above said subject on bits of papers/slips and later on incorporate the same in his dissertation and in fact, the complainant herself assisted the delinquent in preparation of the dissertation and that she also knew well that the delinquent used to instantaneously jot down his thoughts on bits of paper/slips and later on incorporate the same in the dissertation. Learned senior counsel submitted that the lodging of the complaint was only a counter-blast to the delinquent's demand for repayment of the money borrowed by the complainant and in making such a complaint of "sexual harassment", the complainant was induced and encouraged by a group of disgruntled staff, who could not digest the successive promotions viz. Sub Assistant Registrar, Assistant Registrar and Deputy Registrar given to the delinquent in a short span of time. Learned senior counsel submitted that the writings found on the two slips were not intended towards the complainant for soliciting "sexual favours" from her. The said slips, which were kept in the office room of the delinquent, were stealthily removed by the complainant for using the same as the basis for making a complaint of "sexual harassment" against the delinquent. 9. The learned counsel appearing for the complainant would submit that the delinquent officer, taking advantage of his position as superior to that of the complainant, has started behaving indifferently and issued the slips expressing his quench towards her https://hcservices.ecourts.gov.in/hcservices/ and even made phone calls to her during middle of the nights, tarnishing her image in the family circle and disturbing her family life also and unable to bear the torture meted out to her, the complainant had to lodge the complaint against the erring official, which was properly considered by the Enquiry Officer and the Appointing Authority, affording all opportunities to the delinquent. The learned counsel further submitted that since the enquiry officer originally appointed had not acted according to the rules, the complainant had filed W.P.No.10157 of 2000 and even sought for the implementation of the directions of the Apex Court in VISHAKA AND OTHERS vs. STATE OF RAJASTHAN AND OTHERS (AIR 1997 SC 3011) wherein the Apex Court considering the fundamental rights of working women under Articles 14,19 and 21 of the Constitution, framed certain guidelines and norms for protection and enforcement of these rights of the women at their workplaces, and prayed to allow W.P.No.10157 of 2000 and dismiss W.P.No.29024 of 2003. 10. Before dealing with the questions involved in these matters, it must be said that though the complainant challenged the enquiry proceedings by filing W.P.No.10157 of 2000, casting remarks on the then Enquiry Officer, who was also impleaded as third respondent, since the said individual has retired from the service, a Division Bench of this Court by its order dated 5.11.2001, made in W.M.P.Nos.14658 and 14659 of 2000 has issued a direction to proceed with the disciplinary enquiry by affording opportunity to both sides by another Enquiry Officer. Consequent thereupon, the enquiry was proceeded with, which culminated in the punishment of the delinquent officer. Therefore, that part of the prayer in W.P.No.10157 of 2000 becomes infructuous. 11. The other part of the prayer of the complainant in W.P.No.10157 of 2000, to direct the 1st respondent/Registrar to implement the directions of the Apex Court in Vishaka case (cited supra), is in the nature of advancing the cause of justice and in the larger interest of society. But, since during the pendency of the said writ petition, Complaints Committees have been constituted by the High Court to look into the complaints made against the officers and Staff of the High Court and the Judicial Officers and the Judicial Ministerial Staff of the Subordinate Judiciary, by R.O.C.No.5000-A/2001-B2, dated 15.5.2001, nominating one Chairperson and three Members for each Committee, thus answering such prayer of the petitioner and complying with the directions of the Apex Court in Vishaka case, we hold that the writ petition filed by the complainant in W.P.No.10154 of 2000 in its entirety became infructuous. Hence, it is liable to be dismissed as such. https://hcservices.ecourts.gov.in/hcservices/ 12. However, since the said proceedings of the Registrar does not contain names of the Chairperson or the Members, but carries a bracketed information that they would be nominated as and when necessary, we feel it appropriate to direct the Registrar General, High Court of Madras, to name Chairpersons and Members to such Committees, with no further loss of time, and circulate copies of the same to all the Sections in the High Court and to all the Subordinate Courts, so that the aggrieved personnel can report to the respective Committees to redress their grievances. 13. During pendency of W.P.No.29024 of 2003, the complainant also filed WPMP.No.17558 of 2006, praying to implead her as a party to the said proceedings. Since she has been extensively heard on the points connected to and covered by W.P.No.29024 of 2003, as it being a common hearing in the writ petition filed by the complainant and the writ petition filed by the delinquent officer, we feel it not necessary to implead her as a party in W.P.No.29024 of 2003. Accordingly, W.P.M.P.No.17558 of 2006 is dismissed. 14. Thus settling these issues, now we shall proceed to deal with the main matter in issue viz. the complaint lodged by the complainant, which ultimately culminated in imposing a punishment of compulsory retirement on the delinquent officer. 15. The delinquent officer contended that since the petitioner was originally appointed as Steno-Typist in the District Court, Vellore and since his lien over the post in the parent Department has not been severed, only the District Judge, Vellore is competent to initiate disciplinary action and to impose punishment. Though this plea was taken by the delinquent officer only at the time of this writ petition and never raked up such an issue either before the Enquiry Officer or before the Appointing Authority, since the same is in the nature of a legal question, we entertained the said plea so as to be answered. On a perusal of the entire materials placed on record and the relevant provisions of law, we are not able to appreciate the said contention of the delinquent officer for the reason that on his being appointed as P.A. to the Honourable Judges in the High Court w.e.f. 27.1.1988, which is a permanent post, carrying a definite time-scale of pay and also enjoyed promotions thereafter, including deputations, it cannot be said that his lien continued in the Tamil Nadu Judicial Ministerial Service. 16. The delinquent officer further contended that since he was deputed to the Tribunal constituted under the provisions of the Criminal Law Amendment Act, the competent authority to initiate https://hcservices.ecourts.gov.in/hcservices/ departmental proceedings, if any, is the Presiding Officer of the Tribunal and the Madras High Court Service Rules will have no bearing on the Criminal Law Amendment Act Tribunal. For this purpose, he relied on G.O.Ms.No.111 Personnel and Administrative Reforms (FR.II) Department dated 2.5.1994 which deals with deputation of Government Servants to State Owned Corporations/Boards/Undertakings and to Cooperative Institutions, Autonomous Bodies, Universities etc., which have no application to the case of the delinquent officer. Since admittedly, he was appointed as P.A. to the Honourable Judges, which was a permanent post and carrying a definite pay scale and was promoted thereafter also, as has already been stated supra, his lien to the Tamil Nadu Judicial Ministerial Service was severed and he falls within the disciplinary rules of the Madras High Court and therefore, it cannot be said that the proceedings initiated by the High Court are void ab initio. Thus, rejecting the claim of the delinquent officer, we shall now proceed to examine the charges, findings of the enquiry officer, which culminated in the order of compulsory retirement of the delinquent officer. 17. The crux of the complaint made against the delinquent officer is that by using his official position, he solicited sexual favours from the complainant passing on written slips and disturbed her during midnights by making telephone calls to her residence and thereby outraged her modesty and caused mental torture and agony to her. In short, the complaint against the delinquent was "sexual harassment at the place of work". 18. It is the case of the complainant that the delinquent- officer, taking advantage of his "superior" position in the High Court, the work atmosphere and the loan availed by her from the delinquent to tide over the urgent financial crisis, started making tacit expressions and gestures to gain sexual favours from her and forced her to surrender to his sexual desires. The complainant alleged that the delinquent openly stated to her that he very much needed her company to quench his sexual thirst since his wife, because of her health condition, was unfit for cohabitation. It was further alleged that the delinquent, in pursuit of his attempts, passed on several slips in his handwriting to the complainant expressing his sexual desire. It is on the basis of two such slips, containing certain expressions/lyrics written in the handwriting of the delinquent and alleged to be passed on by him to the complainant, the complaint had been filed. It was further alleged that the delinquent disturbed the complainant at odd hours by making frequent telephone calls to her residence and later threatened her with the help of the Police to withdraw the complaint made against him. https://hcservices.ecourts.gov.in/hcservices/ 19. The delinquent-officer while admitting that the writings found on the two slips in question were written by him, denied the allegation that such writings were intended towards the complainant for getting sexual favours and submitted that he never passed on any slips containing any expression to the complainant. His consistent defence was that the slips in question were part of his preparation for submitting the dissertation on the topic "Sexual Harassment and Abuse of Girl Child Worker" for his M.L. Degree course. According to the delinquent, since he demanded repayment of the money lent by his wife to the complainant, the complainant, to wreak vengeance against him, had stealthily removed those slips from his office-room and used the same as the basis for her complaint. In making the complaint and pressing the same vigourously, she was instigated and encouraged by a group of employees, who could not digest the accelerated promotions earned by him. 20. The enquiry officer framed five points for determination on the basis of the two charges framed against the delinquent and after giving findings on the five points, ultimately held that the charges framed against the delinquent have been proved. A copy of the enquiry officer's findings was furnished to the delinquent and he was called upon to submit his representation, if any, on the said findings. The delinquent was also given a personal hearing before the appointing authority. The appointing authority, while rejecting the further representation of the delinquent, accepted the findings of the enquiry officer and ordered to impose the punishment of compulsory retirement from service on the delinquent. The period of suspension undergone by the delinquent was ordered to be treated as "not on duty" for all purposes. 21. Learned senior counsel for the petitioner-delinquent assailed the findings of the enquiry officer on the ground that the enquiry officer failed to appreciate the evidence in its proper perspective. It was argued that the enquiry officer failed to take into consideration the vast discrepancies in the evidence of the complainant and that the complainant had improved her complaint made before the Registrar General which goes to show that she was instigated and encouraged by other staff who bore ill-will against the delinquent because of his quick and successive promotions. It was further argued that it is the complainant's case that the delinquent started misbehaving with her soon after her deputation, i.e. from December, 1998, and if that were to be true, it is very strange and unbelievable that she ventured to borrow money from the delinquent, ignoring such sexual harassment. This only goes to show that the alleged sexual harassment never took place. The alleged complaint of "sexual harassment" was made only with a view to get https://hcservices.ecourts.gov.in/hcservices/ away with the repayment of the amount borrowed by the complainant. 22. Insofar as the two slips in question are concerned, learned senior counsel argued that the enquiry officer had failed to appreciate the fact that such slips were prepared by the delinquent for the purpose of the preparation of the dissertation for M.L. Degree course. Further, it was argued that at no point of time, the delinquent had handed over any slips expressing his sexual desire. The complainant herself said that the delinquent had passed on several slips with obscene expressions and that she had destroyed all except the said two slips, which establishes clearly the attitude of the complainant to wreck vengeance against the delinquent. Further, there was no identity of the author of those slips, nor was there any indication that the message therein was directed towards the complainant. The learned senior counsel argued that the complainant stealthily removed the slips which were kept in the office-room of the delinquent and used the same against the delinquent. The delinquent is leading a happy married life and there was no necessity for him to solicit sexual favours from anyone much less the complainant. 23. The learned counsel for the complainant submitted that when the delinquent officer has not made any complaint against the conduct of enquiry, like procedural irregularity or lack of opportunity, this Court, sitting under Article 226 of the Constitution of India, cannot act like an appellate Court to re- appreciate the evidence. The learned counsel for the complainant relied on a judgment of the Apex Court in APPAREL EXPORT PROMOTION COUNCIL vs. A.K.CHOPRA [(1999) 1 SCC 759], wherein it has been held: "Regarding the nature of approach that courts should take while dealing with cases of sexual harassment at the place of work of female employees, it is to borne in mind 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. 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. https://hcservices.ecourts.gov.in/hcservices/ 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 the 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 delinquent superior officer is wholly misplaced and mercy has no relevance.“ It has also been held therein: "Findings of disciplinary proceedings should not be treated as one of criminal trial. Courts should examine the broader probabilities of the case and not get swayed by insignificant discrepancies or narrow technicalities. They must