IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.05.2005 CORAM: THE HONOURABLE MR.JUSTICE K.P.SIVASUBRAMANIAM W.P.No.36690 of 2004 and W.P.M.P.No.44047 of 2004 Dr.C.Gomathi .. Petitioner versus 1. Government of Tamil Nadurepresented by the Secretary Health & Family Welfare Department Fort St. George Chennai-600 009. 2. The Commissioner of PoliceGreater Chennai, Egmore Chennai-8. 3. The DirectorMedical & Rural Health Services DMS Compound Chennai-600 006. 4. The Director of Medical EducationKilpauk Chennai-600 010. 5. Thiru N.Thalavai SundaramMinister for Health & Family Welfare Govt. of Tamil Nadu Fort St. George Chennai-600 009. 6. Dr.BalakrishnarajDean, Kilpauk Medical College Hospital, Chennai. 7. The Regional DirectorCentral Bureau of Investigation EVK Sampath Building Chennai-6. .. Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of Indiaf or the issue of a writ of Mandamus directing the Central Bureau of Investigation (CBI) represented by its Regional Director, Chennai-6, the th respondent herein to register a case on the basis of the representations made by the petitioner to the second respondent on 22.9.2003 and the subsequent representations made by the petitioner on 9.12.2003, 5.1.2004, 19.1.2004, 30.7.2004, https://hcservices.ecourts.gov.in/hcservices/ 11.11.2004, 27.11.2004 & 29.11.2004 to various authorities with copies endorsed to the second respondent and investigate the case and submit a report to this Court within a time frame fixed by this Court. For petitioner : Mr.P.Veeraraghavan Senior Advocate for Mr.C.S.Karnan For respondents-1 to 4 : Mr.A.L.Somayaji Addl. Advocate General Assisted by Mr.D.Krishna Kumar Special Govt. Pleader Mr.S.Venkatesh Special Govt. Pleader & Mr.R.Vijayakumar Government Advocate Mr.E.Sampath Kumar, G.A. For 5th respondent : Mr.N.Jothi for Mr.L.P.Shanmughasundaram For 6th respondent : Mr.P.Sundaram Government Advocate For 7th respondent : Mr.P.Chandrasekaran ORDER The petitioner prays for a Mandamus to direct the Central Bureau of Investigation (C.B.I.) to register a case on the basis of the representations made by the petitioner to the second respondent on 22.9.2003 and subsequent representations dated 9.12.2003, 5.1.2004, 19.1.2004, 30.7.2004, 11.11.2004, 27.11.2004 and 29.11.2004 to various authorities with copies to the Commissioner of Police, Greater Chennai, and to investigate the case and to submit a report to this Court within a time frame to be fixed by this Court. 2. The petitioner is a Doctor in the service of the State Government. Having regard to the nature of the prayer in the writ petition, namely, to entrust the complaint for investigation by C.B.I. and the nature of the relief which is being finally granted under this order, I do not propose to deal in a detailed manner, the pleadings, arguments, materials and various rulings submitted by both sides. I propose to restrict only to a gist of the pleadings and submissions made by both sides in order to appreciate the essentials of the complaint and the defence by the persons accused of various commissions and omissions. I am also not recording any of my impressions on the contentions by both sides, so that the proposed enquiry should not be diverted or prejudiced. https://hcservices.ecourts.gov.in/hcservices/ 3. According to the petitioner, she belongs to Schedule Caste community and with great difficulty, she completed her medical course in the year 1984. Her husband died in a road accident on 6.6.1989. She later underwent training in JIPMER, Pondicherry and in the same year, she joined the Government service. In the affidavit, she has given details relating to her service particulars and postings in different places. She alleges that she was transferred to various places in an unreasonable manner and in the year 2000, she was posted as Tutor in Government Kilpauk Medical College Hospital (K.M.C.H.) from 7.7.2000 and thereafter as Tutor in Madras Medical College Hospital and again to K.M.C.H. on 24.7.2003 as Tutor and as Assistant Professor. 4. According to her, the architect of such frequent transfers was the fifth respondent, who is the Minister for Health and Family Welfare Department of the Government of Tamil Nadu. According to her, eversince he came to know that she is a widow, he tried to have immoral relationship with her on several occasions, which attempts were constantly resisted by her. She would further state that the fifth respondent used to visit K.M.C.H. at 6.00 a.m. in the early morning frequently and would sit in the Dean's room mainly for the purpose of threatening her. She further states that on 19.9.2003, the fifth respondent, to the shock of everyone, came directly to the Labour Ward where she was working and started shouting at her in the presence of many persons. Therefore, on 22.9.2003, she sent a telegram to the Hon'ble Chief Minister and other authorities including the Commissioner of Police, Chennai, complaining about the mental and sexual tortures made by the fifth respondent and his close friends. After the telegram, though the fifth respondent stopped visiting the hospital, however, continued to issue instructions to the Dean to transfer her to some other place. This resulted in the Dean and other staff members allegedly indulging in torturing her and creating false evidence against her. In order to avoid and to escape from the fifth respondent, she had applied for earned leave for 71 days from 4.11.2003 to 13.1.2004. As a result of the complaint lodged by her, she was ill-treated by the Dean, the sixth respondent and the Deputy Commissioner Kamala, who came to the Labour Ward and shouted at her forcibly pushing her out of the ward. 5. The petitioner states that on 10.12.2003, another transfer order was issued, transferring her from K.M.C.H. to the Government Hospital at Nagapattinam. As she was on leave, the transfer order was affixed on the door of the petitioner's house, which was noticed by the petitioner only on 3.1.2004. https://hcservices.ecourts.gov.in/hcservices/ 6.In the affidavit, the petitioner has given further details regarding the various complaints sent by her to several authorities. Reference is also made to O.A.No.1518 of 2004 filed before the Tamil Nadu Administrative Tribunal, praying to set aside the order of transfer dated 10.12.2003. The Tribunal, by its order dated 9.4.2004, disposed of the said O.A. with a direction to the respondent to accommodate her at Chennai, if possible. Thereafter, she filed W.P.No.15248 of 2004 to quash the order of the Tribunal. An order of interim stay was granted by the High Court on 2.6.2004. 7.Again, on 30.7.2004, a detailed representation was sent to the Hon'ble Chief Minister, detailing the various atrocities alleged to have been committed by the fifth respondent. In the meanwhile, her counsel withdrew the Contempt Petition which was filed before this Court, alleging disobedience of the interim order granted in W.P.No.15248 of 2004. 8. In the affidavit, the petitioner had given details of further representations made to various authorities, inclusive of the Governor of Tamil Nadu on 29.11.2004, requesting sanction to prosecute the fifth respondent on grounds of molestation, harassment, both mentally and physically and under the provisions of the Protection of Civil Rights Act, 1955 and Protection of Human Rights Act, 1993. The allegations made in the several complaints disclose prima facie commission of cognizable offences by the fifth and sixth respondents. However, till date, the respondents, who are duty bound to register a case , have failed to register a case and to investigate the complaint. Non-registration of the complaint would disclose that the State Government/police was not prepared to investigate the case in an objective manner. 9. The petitioner further submits that in spite of the various judgments of the Supreme Court, there are incidents of sexual harassment at the place of work as well as violations of fundamental rights and of gender equality and the right to life and liberty. According to her, the main culprit is the fifth respondent and he being a Minister, an enquiry has to be conducted by an independent agency. The state Government has not taken any action in spite of several complaints of gross violation of human rights. 10. In the counter affidavit filed on behalf of the first respondent, the Deputy Secretary to Government, it is stated that the petitioner had sent several petitions to various authorities, including a petition dated 6.11.2003 to the Chief Minister's Cell and on 9.12.2003 to the Government. The petitions were examined by https://hcservices.ecourts.gov.in/hcservices/ the Director of Medical Education and a factual report was prepared and sent to the Chief Minister's Special Cell and it is evident from the report that the allegations of the petitioner were false. The report reveals that a Committee of Senior Medical Officers were appointed by the Dean, which had concluded after due enquiry that the petitioner was guilty of using abusive and offensive language against the staff repeatedly and it was also opined that a psychiatric evaluation of the petitioner would be necessary and recommended urgent action by the Administration. 11.It is further stated that the petitioner's conduct had spoiled the congenial atmosphere in all the institutions wherever she was posted. Therefore, it was decided to post her on the non-teaching side. Though there were several complaints against her, the Government had been taking a lenient view and not taking any action against the petitioner, as she has lost her husband and she also belongs to a socially backward class. The petitioner herself had sought for transfer by letter dated 9.12.2003 and as such, the petitioner was posted at Government Hospital, Nagapattinam, on 10.12.2003. The subsequent request of the petitioner to post her at Chennai was duly considered and she was posted at E.S.I. Hospital, Chennai, by proceedings dated 7.4.2005. It is further stated that the petition sent to the Governor of Tamil Nadu was also forwarded to the Government. The petitioner had made several allegations against several dignitaries, including the Hon'ble Judges of the High Court in her petitions. The antecedents of the petitioner would reveal that she is always in the habit of making reckless and unwanted allegations against all the colleagues. After examining of the issues, the Government took the view that the petitions sent by the petitioner do not deserve any further action. Subsequently, she made a complaint before the State Human Rights Commission on 7.9.2004, which was registered as Case No.7506 of 2004. The complaint was closed on 30.9.2004 on the ground that the same pertains to service matter and is outside the purview of the Commission. 12. On the basis of the recommendations of the enquiry report, the Government issued G.O. (2D) No.68, Health dated 3.12.2004, constituting a Committee for psychiatric evaluation of the petitioner. The petitioner was directed by the fourth respondent to appear before the Committee on 5.12.2004. However, for reasons best known to the petitioner, she did not appear before the Evaluation Committee. 13.In the affidavit filed by the second respondent, the Commissioner of Police, it is stated that the copy of the telegram sent by the petitioner on 22.9.2003 was received in the office of the second respondent. The same was directed to be enquired by the Kilpauk Police by endorsement dated 22.9.2003. The Inspector of https://hcservices.ecourts.gov.in/hcservices/ Police, G3 Police Station, enquired into the telegram dated 22.9.2003, and the petitioner appeared in the Police Station on 26.10.2003 and gave a letter to the effect that there was no necessity to take any action on her complaint. Therefore, the complaint was finally closed. It is true that the petitioner sought protection by her application dated 5.1.2004 to observe fast in front of the office of the Director of Medical Education, without mentioning any date in the application. The said request was rejected by the respondent on 12.1.2004. It is further stated that the seventh respondent cannot investigate the complaint inasmuch as under Section 3 of the Delhi Special Police Establishment Act, 1946, there has to be a notification as regards the offences in respect of which only the C.B.I. could investigate. There was no need for the C.B.I. to step into the investigation. In the absence of any consent by the State Government, the C.B.I. cannot step in for any investigation. 14. A joint counter affidavit has been filed by respondents-3 and 4, the deponent being the third respondent, Director of Medical Services. After referring to the entry of the petitioner in the service, it is stated that from the year 1999 onwards, the fourth respondent has been receiving lot of serious complaints from various quarters. The first complaint was received from Dr.Mythili Bhaskaran, Reader, Stanley Medical College Hospital. It was brought to the notice of the authorities that the petitioner was not involved properly either in teaching, evaluation or any other departmental activities. On 23.7.1999, the Dean, Stanley Medical College, had reported that the petitioner was using foul language against her students in the hospital at odd hours. Therefore, she had to be transferred and she was transferred to Government Kasturba Gandhi Hospital, Chennai. Even thereafter, complaints were received from the Superintendent of the Kasturba Gandhi Hospital about the indecent behaviour of the petitioner of using unparliamentary and filthy words, thus causing annoyance to the administrators. Many more complaints were received while she was working as Tutor in Pharmacology at Madras Medical College, Chennai, again about her misbehaviour, using unparliamentary words and not keeping the dignity and decorum. Therefore, a committee was constituted on 11.11.2002 nominating four Senior Medical Officers to enquire into the complaint. The Enquiry Committee had given a detailed report and was of the unanimous opinion that the petitioner was guilty of using abusive and offensive language in alleging with sexual innuendo against everyone including the last grade servants. 15. The petitioner was, thereafter, directed by the fourth respondent to appear before the Committee for an enquiry on 19.12.2002. Though she attended the enquiry, she left in the middle https://hcservices.ecourts.gov.in/hcservices/ without answering the questions put by the Committee. Another communication was sent to the petitioner, calling upon her to appear for an enquiry before the Committee on 3.1.2003. The petitioner not only refused to receive the communication, but also did not appear for the enquiry. Thereafter, the enquiry was proceeded further by examining a number of witness and the enquiry concluded on 25.3.2003. The Committee expressed that psychiatric evaluation of the petitioner would be warranted and urgent action was directed to be taken to save the innocent staff of the college from unnecessary harassment by the petitioner. Based on the report submitted by the Senior Doctors, orders were issued on 10.7.2003, transferring and posting her at R.S.R.M. Hospital, Royapuram. In the counter affidavit, certain incidents and facts relating to the alleged misconduct of the petitioner during the year 2002-2003 have been set out in detail. 16.It is also stated that the petitioner's activities disrupted the smooth functioning of the medical institutions wherever she was working. The Government had been taking a lenient view and not to take disciplinary action against the petitioner. 17.The contention of the petitioner regarding the nature of the order passed by the Tamil Nadu Administrative Tribunal is also denied and the reference is made to the order of the Tribunal dated 8.7.2004. After referring to many antecedents, it is stated that the petitioner was always in a habit of throwing false allegations against almost all officers, co workers and other colleagues. The entire writ petition is only intended to avoid joining the E.S.I. Hospital, Chennai, and also to forestall the disciplinary actions against her. The intention of the petitioner would be evident by the inconsistent statements made by the petitioner in her representations. 18.A very detailed counter affidavit has been filed by the fifth respondent/Minister for Health and Family Welfare, denying all the allegations of the petitioner of sexual harassment or any other physical or mental torture, as claimed by the petitioner. According to the fifth respondent, he had never met the petitioner prior to 19.9.2003. Regarding the incident on 19.9.2003, the respondent would state that in a news item published on 12.9.2003, it was reported that a mother, after delivering her child, had abandoned the child and left the Labour Ward of K.M.C.H. and consequently, the child was left in the care of the Hospital. This created a problem in the administration and therefore, he conducted a surprise visit on 19.9.2003. When he visited the labour ward, the duty Doctor namely, the writ petitioner, was not available at 8.45 a.m. and did not report for duty till then. In terms of working hours, she should have reported for duty at 7.00 a.m. itself. The fifth respondent was informed that she never cares to attend to https://hcservices.ecourts.gov.in/hcservices/ duty nor was she keen in attending to duty even during duty hours. Therefore, instead of waiting for the arrival of the petitioner, he visited the other wards in the Hospital and returned to the labour ward again at 9.45 a.m. and even then, the petitioner had not arrived. While he was in a discussion on general aspects, she entered the place around 10.15 a.m. and she was pointed out to him to be the duty doctor. Thereafter he had asked her why she was not present during the duty hours and she falsely pleaded as if she had obtained permission for one hour from the Head of the Department. There was no such written request or orders to the said effect. The Dean and others who were present, did not say anything good about the petitioner and everyone complained about her attitude and callous approach to duty. The way she was working was not helpful to the public. This made the fifth respondent to instruct the authorities to transfer her to some other Department in K.M.C.H. or to the Government Peripheral Hospital, Anna Nagar. Even though he had given instructions on 19.9.2003 itself, the transfer was made only on 3.11.2003, that too, based on complaints by all the Assistant Surgeons of the Hospital. It was only thereafter, she was transferred. 19.In the counter affidavit, the fifth respondent had dealt with the various allegations contained in the writ petition and the fifth respondent has stated that all the allegations are not only false, but was of usual pattern of the petitioner making certain allegations in a stereo-typed manner. After dealing with many of the complaints, the fifth respondent states that the usual methodology which the petitioner adopts was to invent and making false allegations. Her attempts were only to avoid transfer by threat and intimidation and she also takes her gender as a tool to achieve the said purpose. 20. The fifth respondent has also stated that it was sad and unfortunate that such allegations are being made against himself who was discharging his public duties. He is a law graduate having practised in the High Court for about 18 years and had been a law officer. He has been in public life for at least 15 years and held several positions including having been a Member of Parliament (council and states). He has also served in several committees of the Parliament and he has held various positions as Minister for P.W.D., Revenue Department and presently, the Health portfolio. He has never faced such reckless allegations and if such reckless allegations could be made on persons for the sake of personal benefits only persons without integrity and morals can come to politics in future. https://hcservices.ecourts.gov.in/hcservices/ 21.The sixth respondent, Dean of the College, has filed a separate counter affidavit denying the various allegations and raising contentions in the same manner as in the counter affidavit of the Government and respondents-3 and 4. He has denied the allegations made against him. 22.The petitioner has filed reply affidavits with reference to all the counter affidavits filed on behalf of the several respondents and the fifth respondent had also filed a rejoinder affidavit to the reply filed by the petitioner. 23. Mr.S.Veeraraghavan, learned senior counsel for the petitioner, very vehemently contended that this is a specimen case of woes of a woman that too belonging to scheduled caste being subjected to sexual abuse and humiliation by men in power and yet, does not get proper justice or relief from the highest authorities, despite her knocking at the doors of several authorities right upto the Hon'ble Chief Minister. Learned senior counsel took me elaborately through the various records and correspondence to substantiate his contention that all the repeated complaints of the petitioner to the different authorities fell into deaf ears. The departmental authorities and the Police Department did not take any step to hear the cry of the petitioner for justice. In order to disprove the contention of the police that they had not received many of the complaints as enlisted in the writ petition, learned counsel produced postal acknowledgments. Reference was made to various judgments especially of the Supreme Court to drive home the point that in cases where the local bigwigs and men in power in the State Government were involved, it was always desirable to entrust the investigation to a different agency. He further contended that no one will be prejudiced by the investigation being entrusted to an independent agency like the C.B.I. 24.Mr.N.Jothi, learned counsel appearing for the fifth respondent, against whom allegations of sexual abuse have been made mainly, in contrast, submits that this is a typical case of the undesirable growing trend of some of the vicious minded persons, who revel in making false allegations by wearing the shield of their sex and community. The fact that they are women or that they belong to scheduled caste appear to be a licence to them to do whatever they like and get away with it. Learned counsel took me through the several materials in support of his contention that the behaviour of the petitioner throughout her career was one of neglect of duties, flinging false allegations and accusations against superiors, equal staff members, workmen of the last grade and never had any due regard to the hierarchy of the officials. She was https://hcservices.ecourts.gov.in/hcservices/ always accustomed to a habit of abusing everyone in vulgar and vicious manner. Learned counsel took me through some of the proceedings which had been initiated against her in the past much earlier to the incident, which, according to him, reflects that she was always accustomed only to such false and malicious accusations against everyone who come in her way and who would not oblige her. This is not the first time she is making such allegations of sexual abuse and the records disclose that the same has always been the regular pattern of her behaviour. 25.Dealing with the incident on 19.9.2003, after referring to the facts stated in the counter affidavit of the fifth respondent, learned counsel would submit that the confrontation was only due to the negligence of the duty by the petitioner when the fifth respondent had visited the hospital on a surprise check. In the counter affidavit, he has positively stated that she has not met the petitioner any time before 1993. In the reply filed by the petitioner, there is no specific denial of the said assertion by the fifth respondent, which would go a long way to establish that the allegations against the fifth respondent were frivolous and motivated. The entire vicious exercise by the petitioner was only to avoid the transfer and to forestall the disciplinary proceeding which was bound to follow because of the serious misconduct of the petitioner. 26.Learned counsel would further contend that the allegation that the fifth respondent was visiting the hospital from office at 6.00 a.m. was not at all possible, considering the position which the fifth respondent was holding and the security around him. His activities and time schedules are completely recorded and there is absolutely no truth in the said statement of the petitioner. 27.Learned counsel for the fifth respondent also referred to the proceedings initiated by the petitioner before the Tamil Nadu Administrative Tribunal, questioning the order of transfer dated 10.12.2003, in which, there was absolutely no reference to any misbehaviour by the fifth respondent, much less of any sexual harassment.If the present allegations against the fifth respondent are true, the petitioner would have certainly raised the said issue before the Administrative Tribunal, considering that an order of transfer can be questioned only on limited grounds such as mala fides and personal motives. As regards the various representations, learned counsel would state that