HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 398 of 2004 (S/B) Km. Vimi Joshi. ……..Petitioner Versus Chairman, School Managing Committee Gen. B.C. Joshi Army Public School, Bin, Pithoragarh/Station Commander, 69, Mountain Brigade, C/o 56 A.P.O. and others. …….Respondents Mr. Manoj Tewari, Senior Advocate assisted by Mr. Alok Mehra, Advocate for the petitioner. Mr. K.P.Uppadhyay, Addl. Chief Standing Counsel for the State, Mr. D.S. Patni, Advocate for respondent nos. 1 to 5, Mr. Mohit Maulekhi, Advocate for respondent no.6, Mr. Sudhir Singh, Advocate for respondent no.7, Dated: September 3, 2010 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Barin Ghosh,C.J. (Oral) Gen. B.C. Joshi Army Public School is being run by a Society known as ‘Army Welfare Education Society’. The writ petitioner applied for and was appointed as a Trained Graduate Teacher in the said School. She was appointed latter, as Post Graduate Teacher (Mathematics). She was confirmed in the said post. 2. Respondent no.7 was the Station Commander of Headquarter, 69, Mountain Brigade and as he was then holding the said post, he became the Chairman of the Managing Committee of the said School. The respondent no.6 was the Deputy Commander of the said Brigade at the relevant time and because he was the Deputy 2 Commander of the said Brigade, he became the Vice Chairman of the Managing Committee of the School. That the respondent nos. 7 and 6 were respectively Chairman and Vice Chairman of the Managing Committee of the said School, has been noticed by the Hon’ble Supreme Court while rendering the judgment in Civil Appeal No. 7355 of 2008. 3. From 10th February, 2003 to 10th August, 2003, the petitioner was asked to discharge the duties of Principal of the said School in officiating capacity. While she was discharging such duties, on 10 February, 2004, she was appointed as Principal of the School. On 12th October, 2004, the respondent no. 7 wrote a letter to the petitioner acknowledging that he has been apprised by the petitioner that the respondent no.6 has written a letter to the petitioner, which was also shown to him. The respondent no.7, by the said letter dated 12th October, 2004, held out that he had asked the petitioner to make a written complaint, which having not been made, he would not take cognizance of the matter. The letter of the respondent no.6, written to the petitioner, as was shown to the respondent no. 7 and which was acknowledged by him in his letter dated 12th October, 2004, suggests that the respondent no.6 purported to express his love towards the petitioner. On or about 25th October, 2004, two anonymous complaints were received by the Managing Committee of the School against the petitioner and thereupon the Managing Committee of the School by a memorandum dated 25th October, 2004 called upon the petitioner to give her comments on the allegations contained in those complains. Petitioner gave her comments on 27th October, 2004 and, thereafter, by an 3 order dated 4th December, 2004, the services of the petitioner were terminated. 4. Petitioner, thus, filed the present writ petition contending that she was sexually harassed by the respondent no.6 and that the said respondent became so bold that he even expressed his feelings in writing. She contended that she went before the Chairman to seek redressal, but the Chairman took the side of his junior, the Vice Chairman. She said that ultimately, in order to bring to an end the matters complained of by her, she was terminated mala-fide. 5. This Court, on the writ petition, passed an interim order and thereby directed the Secretary, Ministry of Defence, Govt. of India and Chief of the Army Staff to take disciplinary action against the respondent nos. 6 & 7. Though, no interim order was passed against the Management of the School and the same was confined to disciplinary action to be initiated against the respondent nos. 6 & 7 only, the Management of the School too, in addition to the respondent nos. 6 & 7, filed Special Leave Petitions before the Hon’ble Supreme Court. The Hon’ble Supreme Court granted Special Leave to Appeal and thereupon, disposed of the appeal by a judgment and order rendered on 17th December, 2008. The operative portion of the said judgment and order are as under:- “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 4 harassment, the rep0rt 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. 27. We would request the High Court also to consider the desirability of disposing of the writ petition as expeditiously as possible.” 6. In terms of the aforementioned judgment of the Hon’ble Supreme Court, this Court appointed a Three Member Committee headed by a Lady. The said Committee has gone into the matter and has filed a report. In the report, it has been reported that the petitioner was subjected to sexual harassment. This Court granted the respondent nos. 6 & 7 to file their objections to the said report. The time to file such objection has expired. The learned Counsel for the said respondents are seeking seven more days time to file such objections. We, accordingly, grant such time. 7. According to us, in view of the judgment of the Hon’ble Supreme Court, as extracted above, it is not open for us to decide whether the report of the Committee is correct or incorrect. According to us, the report is required to be sent to the Army Authorities, who are competent to initiate disciplinary action against respondent nos. 6 & 7. We think that, in order to enable the Disciplinary Authority to take appropriate action, this Court permitted the respondent nos. 6 & 7 to file objection, with the object of forwarding such objection, alongwith the report, to the Disciplinary Authority. 5 8. The petitioner was appointed as Principal and, during the period she was on probation as Principal, her services were terminated, is the contention of the Management of the School. It was contended that, since that was a fresh and new appointment, and that required completion of probation period, during the probation period the services of the petitioner were brought to an end. The facts pertaining to the petitioner, that she initially joined as a Trained Graduate Teacher and thereupon she was appointed as Post Graduate Teacher (Mathematics) and that she was confirmed on the said post and thereupon asked to discharge the duties of the Principal in officiating capacity and thereupon appointed as Principal, would demonstrate that she was promoted to the post of Principal, in fact, though the word appointment had been used while giving her the said promotion. In such circumstances, when it was found, if it is correct that by reason of the petitioner becoming Principal of the School, the performance of the School deteriorated, which could only be during the period between February, 2004 and November, 2004, it was incumbent upon the Management of the School, to bring back the petitioner from the post of Principal to the post of Regular Post Graduate Teacher (Mathematics), but the same was not done for reasons not forthcoming. We hold that there was no just reason to do what was done to the petitioner. 9. It was contended on behalf of the Management Committee that the School is not amenable to the jurisdiction of Writ Court. It was contended that the Division Bench of another Court has held that it is not an Authority within the meaning of Article 12 of the 6 Constitution of India. In paragraph-20 of the judgment of Hon’ble Supreme Court, referred above, the Hon’ble Supreme Court, in no uncertain terms, has held that the School is a ‘Public Enterprise’. In view of such pronouncement of the Hon’ble Supreme Court, we hold that the School is an Authority within the meaning of Article 12 of the Constitution of India and, accordingly, is answerable for each of its actions, which is tainted. 10. We accordingly, dispose of the writ petition, by directing the Registrar to forward the report of the Committee, after retaining a copy thereof, and objections to be filed by the respondent nos. 6 & 7, if filed within seven days from today, by fifteen days from now to the Chief of Army Staff, alongwith, a copy of this order for taking such action, as he may deem fit and proper, in terms of the judgment of the Hon’ble Supreme Court quoted above. 11. We further declare that by reason of the said order of termination dated 4th December, 2004, the Management of the School prevented the petitioner from discharging her duties in the School, at least, in the post of Post Graduate Teacher (Mathematics). We, accordingly, direct the Management of the School to pay salary payable to the petitioner as Post Graduate Teacher (Mathematics) from 4th December, 2004 until 12th November, 2007, since when the petitioner started discharging her duties in the State Govt. School, less, the sum of Rs. 14,200/- (Rupees fourteen thousand two hundred) paid to her by the cheque accompanying the termination order dated 4th December, 2004 as quickly as possible, but not later than three months from today. It 7 shall be open to the School to recover the above amount from such person or persons, as may be determined by it. 12. We make it absolutely clear that in relation to the merits of the report, we have expressed, no opinion, at all. (V.K. Bist, J.) (Barin Ghosh, C.J.) 03.09.2010 NCM: