IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. :: O R D E R :: Smt. Sushila Nagar Vs. The High Court of Judicature for Rajasthan & Ors. D.B. CIVIL WRIT PETITION NO.959/2004 Date of Order :: 17th August 2006 P R E S E N T HON’BLE THE CHIEF JUSTICE SHRI S.N. JHA HON’BLE SHRI JUSTICE AJAY RASTOGI :: Ms. Indira Jaisingh with Shri A.K. Jain, for the petitioner. Shri A.K. Sharma } Shri Kamlakar Sharma } Shri Abhay Bhandari }, for the respondents. Shri Ashok Gaur } ***** BY THE COURT (PER HON’BLE THE CHIEF JUSTICE) This is an unusual writ petition by a Judicial Officer and member of the Rajasthan Judicial Service who filed complaint alleging sexual harassment at the hands of fellow judicial officers. Not satisfied with the result of the enquiry she has now approached this Court on judicial side seeking directions as under : (1) by an appropriate writ, order or directions quash and set aside the order dated 18.10.2003 rejecting the application for amending the charge. It should be directed that the charge against the respondentNo.2 may be reframed as prayed for in the application dated 6.9.2003 (Annexure-20). (2) by an appropriate writ, order or directions this Hon’ble Court may further be pleased to direct the respondent No.1 proceed against the four remaining officers named in the complaint of the petitioner (Annexure-1) who have been exonerated in the preliminary enquiry. (3) by an appropriate writ, order or direction that the respondent No.3 the State Government may be directed to take statutory steps to enforce the norms and guidelines prescribed by the Hon’ble Supreme Court in Vishakha’s case and create adequate infrastructure for the same. (4) That the respondent No.1 may be directed to take all proper steps to enforce the norms and guidelines prescribed with Hon’ble Supreme Court with regard to gender discrimination and sexual harassment. The case of the petitioner briefly stated is that on her appointment to the Rajasthan Judicial Service she was posted as Additional Munsif and Judicial Magistrate at Ajmer in March, 1992. Shri Uma Shanker Vyas, a batch senior to her, was also posted there. In the beginning he tried to be intimate with her and later tried to make advances. He then spread rumours about her character. Once he was admonished by the then District Judge, Ajmer Shri D.C. Dalela. On intervention of other judicial officers, however, he submitted a written apology on 22.8.1992 and the petitioner did not pursue the matter. The petitioner has then referred to the conduct of Shri Magha Ram Choudhary posted as Additional Chief Judicial Magistrate No.1, Ajmer from 1992-94. According to the petitioner he was an elderly person and she gave him due respect. But, strangely, she started receiving anonymous letter which she finally found had been written by him. Letters contained “adolescent expressions tending to be some time romantic”. In July, 1997 the petitioner was again posted at Ajmer as Civil Judge (Junior Division) South when Shri K.L. Vyas was the District Judge. He happened to be uncle of Uma Shanker Vyas. Shri Narendra Kumar Purohit, Shri Rakesh Kumar Mathur and Shri Vinay Kumar Goswami were also posted there as Additional District Judges and Additional Chief Judicial Magistrate respectively. They took the petitioner for ride in their car on the pretext of searching a venue for Lok Adalat. The petitioner later came to know that the venue was already fixed and their object simply was “to have her company for entertainment”. There were other lady judicial officers posted at Ajmer but they were not asked to accompany them. The petitioner alleged that this was so because she belonged to Scheduled Caste community and therefore “considered to be an available commodity”. Shri K.L. Vyas called her to Dak Bungalow at Beawar after office hours which she refused. He put pressure on the Beawar Bar to make complaint against her character. In order to victimize her, she was assigned duty during Diwali holidays even though male officers were available. A judicial staff of Court of Additional District Judge, Beawar who had been accused of teasing girls was posted in her Court. Shri K.C. Singhal, Additional District Judge posted at Beawar during 1997-99 asked her to bring a packet from Jaipur where she had gone to see her parents. After the packet was handed over to Shri Singhal at Beawar, she came to know that it contained liquor bottles. She complained to Shri Singhal but, it seemed, he did not take it easy because she started receiving strange phone calls and she got the telephone disconnected. After Shri Singhal was posted at Chittorgarh in February 1999, she got a new telephone connection. She again started receiving blank calls which were traced to the residence of Shri Singhal. On 26.5.2001 the petitioner made a complaint, alongwith supporting documents, to the Registrar General of the High Court in respect of the above- mentioned incidents. On 10.6.2001 she sent some more documents. When no action was taken on the complaint the petitioner approached the National Women Commission and the Supreme Court of India. On receipt of the letter from the Registrar General, Supreme Court of India, dated 9.7.2001, the matter was placed before the Chief Justice and an enquiry was made. The enquiry was held by the Registrar General (Vigilance) who submitted report on 9.11.2001 recommending disciplinary action against Shri Magha Ram Choudhary and Shri K.C. Singhal. Shri Uma Shanker Vyas, Shri Narendra Kumar Purohit, Shri Rakesh Kumar Mathur and Shri Vinay Kumar Goswami were let off. The petitioner submitted a number of applications to supply her copy of the enquiry report and other related documents but it was only in September, 2003 that copy of the report was supplied. She submitted representation against the enquiry report immediately on 23.9.2003. She also submitted application to prosecute the concerned officers under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It may be stated here that the conduct of Shri K.L. Vyas does not appear to have been examined because he had superannuated from service and died soon after. Shri K.C. Singhal was compulsorily retired and in the circumstances the departmental proceeding commenced against Shri Magha Ram Choudhary alone. The charge-sheet served on him referred to the period 10.6.1992 to 25.5.1993 even though, according to the petitioner, the enquiry report adverted to allegations for the subsequent period too. Her case is that she pointed out the mistake to the Registrar (Vigilance) who was acting as the Presenting Officer in the departmental enquiry. He moved application for amendment of the charge on 6.9.2003. The Enquiry Judge (a sitting Judge of the High Court) however, by order dated 18.10.2003 rejected the application. The petitioner also made allegation against previous Enquiry Judge and, it is said, on her complaint on 30.9.2002 the Enquiry Judge was changed. The petitioner has referred to at length guidelines laid down by the Supreme Court in Vishakha Vs. State of Rajasthan, AIR 1997 SC 3011=(1997) 6 SCC 241, and alleged that the guidelines were not followed in dealing with her complaint. The petitioner in the circumstances filed the writ petition – in her own words – “being aggrieved by the exoneration of the four judicial officers complaint against, rejection of charge amendment application and non-compliance of the guidelines laid down by the Hon’ble Supreme Court as well as non-enforcement of prevention of atrocities on SC/ST against the accused officers” – seeking reliefs noticed at the outset. At this stage it may be mentioned that the petitioner had initially impleaded, besides the High Court and the State of Rajasthan as respondent nos.1 and 3 respectively, Shri Magha Ram Choudhary as respondent no.2. Later, on her application, Shri Narendra Kumar Purohit, Shri Rakesh Kumar Mathur, Shri Vinay Kumar Goswami and Shri Uma Shanker Vyas were added as respondent nos.4 to 7 and notice was issued to them. The High Court has filed reply and additional affidavit. Respondent nos.4 to 6 have filed a common reply while respondent No.7 has filed a separate reply. The petitioner has filed rejoinder to the said replies and an additional affidavit. In its reply, the High Court stated that the complaint filed by the petitioner on 26.5.2001, received in the office on 1.6.2001, was placed before the Administrative Judge on 3.7.2001. The Administrative Judge opined that no specific misconduct had been alleged against any particular officer, allegations were about things alleged to have taken place on 7-8 years ago and therefore no action was possible. However, later on receipt of copy of the same complaint from the Registrar General of the Supreme Court, the Chief Justice ordered preliminary enquiry. The enquiry revealed prima facie case of misconduct against officers, namely Shri Magha Ram Choudhary, and Shri K.C. Singhal; no case was found against the remaining four officers. The report was approved by the Chief Justice on 9.11.2001 and regular departmental enquiry was ordered against Shri Magha Ram Choudhary and Shri K.C. Singhal. The petitioner made representation on 7.1.2002 for reconsideration. After considering the report and the entire record on 14.2.2002 the Administrative Judge found that no case was made out for reconsideration and the representation dated 7.1.2002 was rejected. The petitioner made yet another representation on 23.9.2003 seeking reconsideration which was rejected by the then Administrative Judge on 3.8.2004. As regards the reliefs sought by the petitioner it has been stated in the reply that the matter essentially relates to proceeding in a departmental enquiry between the delinquent and the Department (High Court) and the complainant has no locus standi to seek direction for conducting enquiry in a particular manner, that too during pendency of the departmental enquiry. The petitioner has set the ball in motion and it is for the disciplinary authority to decide whether any misconduct is made out or not. The application for amendment of the charge was filed by the Presenting Officer and the acceptances or rejection thereof could be challenged by either the delinquent or the Presenting Officer, as the case may be. The complainant/petitioner can not make grievance particularly when she had not moved any kind of application for amendment of the charge. The subject matter of preliminary enquiry was the period from 10.6.1992 to 25.3.1993 when the complainant and the delinquent (Shri Magha Ram Choudhary) were posted at Ajmer. Rejection of the application for amendment of the charge thus provided no cause of action to the petitioner to challenge the order. It has further been stated in the reply that the petitioner was placed under suspension on 20.4.2001 in view of disciplinary proceedings – three under Rule 16 and two under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 - pending against her. On 27.4.2001 she made representation alleging victimization and injustice and sent copies thereof to the Hon’ble Judges of the High Court. In her representation she complained of being forced to resign. Reports of her resignation appeared in local newspapers. The matter was also raised in the Rajasthan Legislative Assembly on 1.5.2001 which too was reported in the local newspaper. The matter was placed before the Full Court on 24.5.2001 under Agenda No.XIII as under : “Matter regarding propriety and veracity of allegations raised in the Rajasthan State Assembly at the behest of Smt. Sushila Nagar, RJS and further to consider the propriety of sending the representation to the Hon’ble Judges of this Court regarding circumstances she was being forced to submit her resignation” The Full Court resolved as under :- “Having considered the matter and after due deliberation it is RESOLVED that a show cause notice by the Full Court be issued to Smt. Sushila Nagar as to why action should not be taken against her with regard to the propriety of sending the representation to the Hon’ble Judge of this Court regarding the circumstances she was being forced to submit her resignation.” It has also been stated in the reply that pursuant to the directions of the Supreme Court in Vishakha Vs. State of Rajasthan (supra), a Complaints Committee comprising of Hon’ble Mrs. Justice Gyan Sudha Misra and Hon’ble Mr. Justice Ashok Parihar has been constituted to look into the cases of sexual harassment of the female employees working in the office of the Rajasthan High Court. Respondent nos.4 to 6 in their reply have challenged the locus standi of the petitioner to file the writ petition. It has been stated that the preliminary enquiry did not reveal any case against them and in proceeding under Article 226 of the Constitution of India, the High Court cannot go into findings of fact recorded in the preliminary enquiry as it is not open to the High Court to reappraise the evidence. On facts it has been stated that the complaint was made on 26.5.2001 after four years of the alleged incident. In the representation made to the Registrar General on 27.4.2001 there was no whisper of allegation against these respondents. She got the issue raised in the Rajasthan Legislative Assembly on 1.5.2001 without levelling any allegation against the respondents. In her interview to the media also there was no mention of these respondents. In the complaint to the Rajasthan State Human Rights Commission on 16.5.2001 too nothing was said against the respondents. On 22.5.2001 she gave interview to the correspondent of the Hindustan Times but again did not utter a single word against these respondents. On 24.5.2001, the Full Court resolved to issue show cause notice to the petitioner. Only then, on 26.5.2001, for the first time, allegations were made against these respondents because they happened to be posted in the Registry of the Jaipur Bench of the High Court at that time. The respondents have asserted that the allegations against them are false and frivolous, and an after thought, designed to make out defence in the departmental enquiries against her. The respondents have referred to the factual background which is not necessary to notice for disposal of this writ petition. In his reply, respondent No.7 has stated that the enquiry officer found no prima facie material to warrant departmental enquiry against him. Neither the finding of the enquiry officer nor the order (of the Chief Justice) closing the enquiry against the respondent has been challenged by the petitioner. Without challenging the finding and order of the High Court on administrative side, relief no.2 seeking direction to proceed against the remaining officers cannot be granted. The respondent has challenged the maintainability of the writ petition on the ground of delay and laches. Whereas the preliminary report was submitted in November 2001, the petition was filed after three years. The respondent submits that remedy of writ petition is extra-ordinary and equitable in nature and relief cannot be granted to a person if he comes with unclean hands and much after the cause of action had accrued. Respondent no.7 has also averred that the writ petition is an abuse of the process of law, an effort to undermine and malign the judiciary. He has dealt with at length the allegations made against him. These statements are in the nature of defence which is not necessary to notice for disposal of this writ petition. In the rejoinder to the reply of the High Court, the petitioner has stated that the preliminary enquiry was not held according to law and it was an eyewash. No opportunity of cross-examination was given to prove her case. The complaint filed by the petitioner was not dealt with as per the directions of the Supreme Court in Vishakha’s case. The petitioner has tried to find fault with the preliminary enquiry report asserting that no reasonable person could reject the allegations in view of the materials which had been placed on record. She has denied that the orders passed by the High Court on administrative side were communicated to her, it was only through newspapers that she came to know about them. Ms. Indira Jaisingh appearing for the petitioner submitted that the enquiry was not held as per the guidelines in Vishakha case, and the stand in para 14 of the reply of the High Court that the incident having taken place prior to the judgment in Vishakha case, the procedure indicated therein will not apply, is not correct. According to the counsel, the guidelines laid down by the Supreme Court are applicable in all cases of sexual harassment at workplaces and in the circumstances a fresh enquiry must be held by a Committee headed by a woman Judge in which besides other woman members, representatives of a Non- Government Organization (NGO) should be associated. Counsel submitted that no disciplinary action was proposed against Shri Uma Shanker Vyas in view of apology tendered by him which is not sufficient reason for not holding departmental enquiry. As regards others, counsel submitted, sufficient materials had been placed before the Enquiry Officer i.e. the Registrar General (Vigilance) and conclusion to the contrary reached by him was not correct. Counsel submitted that instead of initiating disciplinary action against them, as many as 10 charge-sheets were served on the petitioner for filing complaint against the concerned officers. On behalf of the High Court, it was submitted that the petitioner filed complaint only after the Full court issued show cause notice on 24.5.2001 for committing acts of impropriety. The complaint related to incidents which had allegedly happened years ago. In any view, the matter was got enquired into, but the enquiry revealed prima facie case against only Shri Magha Ram Choudhary and Shri K.C. Singhal, and not against the rest. The correctness of findings which was approved by the Chief Justice cannot be gone into in a proceeding under Article 226 of the Constitution. Judicial review, according to the counsel, is permissible only in cases of illegality, procedural irregularity, irrationality and proportionality. So far as the complainant is concerned, he/she can only assist the Enquiry Authority. The question of delinquency or misconduct is basically between the delinquent and the employer and the complainant cannot pursue the matter beyond a certain point. On behalf of the respondent-officers it was submitted that the writ petition is not maintainable as the cause of action is said to be rejection of the application for amendment of charge, but if the Presenting Officer was not aggrieved by the order, the petitioner has no locus standi to challenge the same. Not only the complaint was filed after years of the alleged incident, the writ petition was also filed after three years of the preliminary enquiry. Counsel appearing for the officers reiterated the stand of the High Court that the reliefs sought by the petitioner are beyond the scope of judicial review as the Court cannot sit in appeal over the findings in the preliminary enquiry and re-appraise the evidence and reach a different conclusion. On pleadings of the parties and the submissions made, two questions broadly arise for consideration – first, whether the enquiry was not held in accordance with law and whether there has been violation of the guidelines laid down in Vishakha case; and second, whether the complainant can seek amendment of the charge and/or challenge the findings of the enquiry officer in the preliminary enquiry and, further, seek direction to initiate departmental enquiry against the persons accused of misconduct. We shall first consider the question as to whether there was violation of the guidelines laid down in Vishakha case and therefore there should be a fresh or further enquiry. In this connection, before proceeding further, we would like to disapprove the stand of the High Court that the alleged incidents having taken place prior to the judgment in Vishakha case, guidelines would not apply. Such a plea could be accepted if the acts constituting sexual harassment at workplace would not amount to misconduct but for the judgment in Vishakha case. Where the act does not constitute an offence on the date it is committed it cannot be subject matter of prosecution or proceeding, but that principle is applied only in a criminal case. Misconduct is misconduct and irrespective of the date of the offence, enquiry into complaints of sexual harassment after the judgment in Vishakha case will have to be dealt with in accordance with the guidelines. As a matter of fact, the judgment does not enact any law, it only recognizes the fundamental rights of working women under Articles 14, 15, 19 and 21 of the Constitution of India and fixes guidelines for enforcement of those rights. Having made these remarks, we may now notice the guidelines. They are ten in number but in the present case we may only notice guidelines 4, 5, 6 and 7 which read as under :- 4. Criminal proceedings : Where such conduct amounts to a specific offence under the Indian Penal Code or under ay otherlaw, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seeks transfer of the perpetrator or their own transfer. 5. Disciplinary action : Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. 6. Complaint mechanism : Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time-bound treatment of complaints. 7. Complaints Committee : The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party,either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government Department concerned of the complaints and action taken by them. The employers and person-in-charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government Department. On behalf of the petitioner, much emphasis was laid on guideline 7. The sheet anchor of the argument of Ms. Indira Jaisingh was that enquiry should have been held by the Complaints Committee constituted in accordance with the guidelines, that is to say, by a Committee headed by woman judge and comprising of women - not less than half – as members. Further, some NGO should have been associated with the enquiry. Preliminary Enquiry, held by the Registrar General (Vigilance) in the instant case, therefore was not in accordance with law. We have given our anxious consideration to the submissions of the counsel. In our understanding, the Complaints Committee referred to in the Guidelines is intended to be a permanent committee or body in every department which can look into complaints relating to sexual harassment at workplaces as a fact finding body. The enquiry by the Complaints Committee is different from disciplinary enquiry. Where the enquiry by the Complaints Committee reveals facts amounting to any offence under Indian Penal Code or any other law the employer is required to initiate appropriate action in accordance with law, and where the enquiry reveals conduct amounting to misconduct in employment – as defined in the relevant service rules, appropriate disciplinary action is required to be taken by the employer in accordance with the concerned rules. This is evident from a conjoint reading of the Guidelines. If we read guideline 7 first and then guidelines 4 and 5, the true import of the guideline would become clear. First, the matter should be