# • v. AK. CHOPRA

- **Citation:** [1999] 1 S.C.R. 117
- **Court:** Supreme Court of India
- **Decided:** 1999-01-20
- **Case number:** Civil Appeal Nos. 226-227 c D of 1999
- **Bench:** Dr. As. Anand Cj, V.N. Khare
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-ak-chopra-16621
- **Pages:** 26

## Headnote

B
,.
Service Law:
Misconduct-Sexual harassment--Of female employee~At place of
work-Approach of cowt-ln such case~Held, Depmtmental disciplina1y
proceedings should not be dealt with like a criminal t1ial--Cowts are required c
to examine the broader probability of a case and 11ot get swayed by insignifica11t discrepancies or 11a1row tech11icalitie~T71ey must examine the e11tire
material to detem1i11e the genui11e11ess of the complai11t-Victim's statement
must be appreciated i11 the background of the e11tire cas~Such cases are
required to be dealt with great sensitivity-Sympathy or mercy towards the D
delinquent, wholly misplaced.
_..
Misco11duct-Sexual harassment-At place of work-Meaning of-Supelior Officer harassed, pestered and subjected his junior female employee by
a co11duct which was agai11st moral sanctions a11d did not withsta11d test of
decency and modesty which projected unwelcome sexual advances-Held,
E
Sexual harassment includes any action or gesture which, whether directly or
by implication, aims at or has the tendency to outrage the modesty of a female
employe~"Molestation" or ''physical assault" cannot be detennined with
reference to dictio11ary mea11i1115T71e objectio11able behaviour; does 1101 cease
to be outrageous, eve11 if there is 110 actual assault or touch by the deli11que11t
F
..,,
superior officer---Objectio11able oveltllres with sexual oveltones ·sufficient .
~
Departme11tal e11quiry-Punishme11t-Qua11tum-Judicial review
of-Sexual harassme11t-Cliarge of-Proved-Deli11que11t officer's removal
from se1vice upheld by appellate authority-Neither Single Judge 11or Division
Be11ch of High Cowt found fault with the conduct of enquiry-lloweve1; High G
Coult reinstated the delinquent officer in se1vice by holding that he had not
-\'
"actually molested" the female employee but only "tried to molest" her and
had "not managed" to make physical contact with her-Held,s In such
circumstance, High Coult e1Ted in interfe1ing with the punishment-What
punishment is to be imposed is within the jurisdiction of the competent
authority and does not warrant interference by High Cowt lightly--Reduction H
117
118
SUPREME COURT REPORTS
[1999] 1 S.C.K
A of punishment in a case like this is bound to have a demoralising effect on
women employees and is a retrograde step-ln the facts of the case, punishment of removal from service is commensurate with the acts of the
delinquent's unbecoming of good conduct and behaviour expected from a
Superior offecer--Delinquent's repentance and unqualified ap'llogy at the final
stage of appeal does not call for any sympathy or mercy.
B
Constitution of India, 1950: Articles 14, 15 and 21.
Sexual harassment-Of female employees-At place of work-Held:
Sexual harassment is a f onn of sex discrimination projected through unwelC come sexual advances, requests for sexual favours and other verbal or physical
conduct with sexual overtones when submission/rejection of which affects the
employment or work perf onnance of the female employee or has the effect of
creating an intimidating or hostile environment for her-Such incidents violate
her fundamental right to gender equality and right to the life and liberty Such
D sexual harassment is incompatible with the dignity and honour of a female
and there can be no compromise with such violations-Further, International
Instruments cast an obligation on India to gender sensitise its laws and its
Courts are obliged to follow such International Conventions-ILO Seminar
at Manila (1993)-'--convention on the Elimination of All Fonns of Discrimination Against Women, 1979 ("CEDAW')-Beijing Declaration on
E Women International Covenant on Economic, Social and Cultural Rights.
Article 226--Departmental enquiry-Findings of fact-interference
with-By High Court-Held, High Court should not nonnally interfere unless
the findings are based on no evidence or are perverse and/or legally unF tenable-High Court cannot sit as an appellate authority and substitute its
own conclusion r

## Text

_Characters 0–39,805 of 61,773. This is a partial read: ask again with offset=39805 for what follows._

><-
APPAREL EXPORT PROMOTION COUNCIL
A
•
v.
AK. CHOPRA
JANUARY 20, 1999
[DR. AS. ANAND CJ. AND V.N. KHARE, J.)
B
,.
Service Law:
Misconduct-Sexual harassment--Of female employee~At place of
work-Approach of cowt-ln such case~Held, Depmtmental disciplina1y
proceedings should not be dealt with like a criminal t1ial--Cowts are required c
to examine the broader probability of a case and 11ot get swayed by insignifica11t discrepancies or 11a1row tech11icalitie~T71ey must examine the e11tire
material to detem1i11e the genui11e11ess of the complai11t-Victim's statement
must be appreciated i11 the background of the e11tire cas~Such cases are
required to be dealt with great sensitivity-Sympathy or mercy towards the D
delinquent, wholly misplaced.
_..
Misco11duct-Sexual harassment-At place of work-Meaning of-Supelior Officer harassed, pestered and subjected his junior female employee by
a co11duct which was agai11st moral sanctions a11d did not withsta11d test of
decency and modesty which projected unwelcome sexual advances-Held,
E
Sexual harassment includes any action or gesture which, whether directly or
by implication, aims at or has the tendency to outrage the modesty of a female
employe~"Molestation" or ''physical assault" cannot be detennined with
reference to dictio11ary mea11i1115T71e objectio11able behaviour; does 1101 cease
to be outrageous, eve11 if there is 110 actual assault or touch by the deli11que11t
F
..,,
superior officer---Objectio11able oveltllres with sexual oveltones ·sufficient .
~
Departme11tal e11quiry-Punishme11t-Qua11tum-Judicial review
of-Sexual harassme11t-Cliarge of-Proved-Deli11que11t officer's removal
from se1vice upheld by appellate authority-Neither Single Judge 11or Division
Be11ch of High Cowt found fault with the conduct of enquiry-lloweve1; High G
Coult reinstated the delinquent officer in se1vice by holding that he had not
-\'
"actually molested" the female employee but only "tried to molest" her and
had "not managed" to make physical contact with her-Held,s In such
circumstance, High Coult e1Ted in interfe1ing with the punishment-What
punishment is to be imposed is within the jurisdiction of the competent
authority and does not warrant interference by High Cowt lightly--Reduction H
117
118
SUPREME COURT REPORTS
[1999] 1 S.C.K
A of punishment in a case like this is bound to have a demoralising effect on
women employees and is a retrograde step-ln the facts of the case, punishment of removal from service is commensurate with the acts of the
delinquent's unbecoming of good conduct and behaviour expected from a
Superior offecer--Delinquent's repentance and unqualified ap'llogy at the final
stage of appeal does not call for any sympathy or mercy.
B
Constitution of India, 1950: Articles 14, 15 and 21.
Sexual harassment-Of female employees-At place of work-Held:
Sexual harassment is a f onn of sex discrimination projected through unwelC come sexual advances, requests for sexual favours and other verbal or physical
conduct with sexual overtones when submission/rejection of which affects the
employment or work perf onnance of the female employee or has the effect of
creating an intimidating or hostile environment for her-Such incidents violate
her fundamental right to gender equality and right to the life and liberty Such
D sexual harassment is incompatible with the dignity and honour of a female
and there can be no compromise with such violations-Further, International
Instruments cast an obligation on India to gender sensitise its laws and its
Courts are obliged to follow such International Conventions-ILO Seminar
at Manila (1993)-'--convention on the Elimination of All Fonns of Discrimination Against Women, 1979 ("CEDAW')-Beijing Declaration on
E Women International Covenant on Economic, Social and Cultural Rights.
Article 226--Departmental enquiry-Findings of fact-interference
with-By High Court-Held, High Court should not nonnally interfere unless
the findings are based on no evidence or are perverse and/or legally unF tenable-High Court cannot sit as an appellate authority and substitute its
own conclusion regarding the guilt of the delinquent-Adequacy or inadequacy of evidence cannot be canvassed before the High ·Court-As regards
punishment/penalty imposed, High Court should not nonnally interfere unless
it is impennissible or shocks its conscience-fn the circumstance of the case,
High Court . e"ed in interfering with the findings of fact and punishment
G imposed which were upheld by appellate authority.
Articles 32 and 226-Violation of human rights-Cases of-Held,
Supreme Court and High Courts must apply International Conventions and
Nonns especially when there is no inconsistency between them and .the
H domestic law occupying the field.
....
,_
APP AREL EXPORT PROMOTION COUNCIL v. AK CHOPRA
119
,;;. -
Administrative Law:
A
Judicial review-:-Nature and scope of-Held, Judicial review is 11ot an
appeal from a decision out review of the ma1111er of arriving at the decision-It
is 11ot co11cemed with the con-ect11ess of the decision but is confined to the
exami11ation of the decision-making process, namely, pri11ciples established
B
-·
by law a11d mies of natural justice a11d fair play-Cowt ca1111ot substitute its
,.
judgment for that of the admi11istrative authority.
Sexual harassme11t-Of female employee~At place of work-Defi11ed.
Words and Phrases:
c
"Sexual harassme11t" a11d "molestatio11"-Mea11i11g of.
The respondent was working as a Private Secretary to the Chairman
of the appellant-Council. It was alleged that the respondent tried to molest
a woman employee of the Council, Miss X who was at the relevant time D
,,,
working as a Clerk- cum-Typist. She was not competent or trained to take
dictation. The respondent, however, insisted that she go with him to the
Busi"uess Centre at Taj Palace Hotel for taking dictation from the Chairman and type out the matter. Under pressure of the respondent, she went
to take the dictation from the Chairman. While Miss X was waiting for the
E
Director in the room, the respondent tried to sit too close to her' and
despite her objection did not give up his objectionable behaviour. She later
on took dictation from the Director. The respondent told her to type it at
the Business Centre of the Taj Palace Hotel, which was located in the
Basement of the Hotel. The respondent offered to help her so that her
-..
typing was not found fault with by the Director. The respondent volunF
I
teered to show her the Business Centre for getting the matter typed and
taking advantage of the isolated place, again tried to sit close to her and
touch her despite her objections. The draft typed matter was corrected by
Director (Finance) who asked Miss X to retype the same. The respondent
again went with her to the Business Centre and repeated his overtures.
G
Miss X told the respondent that she would "leave the place if he co11tinued
...
to behave like that". The respondent did not stop. Though he went out from
the Business Centre for a while, he again came back and resumed his
objectionable acts. According to Miss X, the respondent had tried to molest
her physically in the lift also while coming to the basement but she saved
herself by pressing the emergency button, which made the door of the lift H
120
SUPREME COURT REPORTS
(1999] 1 S.C.R.
A to open. Miss X apart from narrating the whole incident to the Director
.....
(Personnel) orally, submitted a written complaint also. The respondent
was placedi under suspension. A charge sheet was served on him. The
Enquiry OIIlcer after considering the documentary and oral evidence and
the circumstances of the case arrived at the conclusion that the respondent
B
had acted against moral sanctions and that his acts against Miss X did
not withstand the test of decency and modesty. He, therefore, held the
·-
charges levelled against the respondent as proved.
_,
The departmental authorities keeping in view the fact that the actions of the respondent were considered to be subversive of good discipline
c and not conducive to proper working in the appellant Organization where
there were a number of female employees, took action against the respondent and removed him from service.
Aggrieved by the order of removal from service the respondent filed
a departmental appeal before the Staff Committee of the appellant. The
D Staff Committee came to the conclusion that the order passed by the
...
Director General terminating the services of the respondent was legal,
.,,
proper and valid. The appeal was dismissed and the removal of the
respondent for causing "sexual harassment" to Miss X was upheld.
E
The respondent, thereupon, filed a writ petition in the High Court,
challenging his removal from service as well as the decision of the Staff
Committee dismissing hi~ departmental appeal. Single Judge allowed the
writ petition and held "that. .... the petitioner tried .to molest and not that
the petitioner had in fact molested the complainant." The Single Judge,
therefore, disposed of the writ petition with a direction that 'the responF dent be reinstated in service' but that he would not be entitled to receive
,,..
any back wages. The Division Bench dismissed the Letters Patent Appeal
... -
filed by the appellant and agreed with the findings recorded by the Single
Judge that the respondent had "tried" to niolest and that he had not
"actually molested " Miss X and that he had "not managed" to make the
G slightest physical contact with the lady and went on to hold that such an
act of the respondent was not a sulilcient ground for his dismissal from
service. Hence this appeal.
,,
The following questions arose before this Court:
H
Does an action of the superior against a female employee, which is
APP AREL EXPORT PROMOTION COUNCIL v. A.K CHOPRA
121
against moral sancthms and d.oes not withstand test of decency and A
modesty not a111~unt to sexual· harassment' Is physical contact with the
female employee an essential ingredient of such a charge? Does the allegation that the superior 'tri.ed to mol.est' a female employee at the "place of
work'', not constitute an act unbecoming of good c-0nduct and behavjour
expected from the superi-0r? This . Court iilso c<1nsidered the nature of approach expected fi:om the law courts to cases involving sexual harassment.
Allowing the appeal, this Court
B
HELD: 1.1. Any .action or gesture which, whether directly or by implication, aims at or has the tendency to outrage the modesty .of a female C
employee, must fall under the general concept of the definition of sexual
harassment. While dealing with cases of sexual harassment at the place of
work of female employees the Court should bear 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 D
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 interferi11g With her work performance and
had the effect of creating an intimidati~g or hostile working environment
f11r her~ [138-F, 139-H, 140-AJ
E
1.2. In a case involving a charge of sexual harassment or attempt to
sexually molest, the courts ·are required to examine the broader. probabilities of a case and not get s\Vayed ·by insignificant discrepancies or
narrow technicalities or dictionary nieani11g of the expression "molestation". They must examine the entire. material to determine the genuineness . F
of the complaint. The statement ·lif 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 superior officer is wholly misplaced and G
mercy has. no relevance. [141-E-FJ
Vishaka v. State ofRajasthan, [1997) 6 SCC 241, followed.
2.1. Each incident of sexual harassment, at the. place of work, results
in violation of the Fundamental Right to Gender Equality and the Right to H
122
SUPREME COURT REPORTS
[1999] 1 S.C.R.
A Life and Liberty • the two most precious Fundamental Rights guaranteed
....
by the Constitution of India. The contents of the fundamental rights
guaranteed in our Constitution are of sufficient amplitude to encompass
all, facets of gender equality, including prevention of sexual harassment
and abuse and the courts are under a constitutional obligation to protect
B
and preserve those fundamental rights. That sexual harassment of a female
at the place of work is incompatible with the dignity and honour of a female
·-
and needs to be eliminated and that there can be no compromise with such
_,
violations, admits of no debate. The message of international instruments
such as the Convention on the Elimination of All Forms of Discrimination
Against Women, 1979 ("CEDAW ") and the Beijing Declaration which
c directs all States to take appropriate measures to prevent discrimination
of all forms against women besides taking steps to protect the honour and
dignity of women is loud and clear. This is also in keeping with the International Covenant on Economic, Social and Cultural Rights. These international instruments cast an obligation on the Indian State to gender
sensitise its laws and the Courts are under an obligation to see that the
D message of the international instruments is not allowed to be drowned. The
""
Courts are under an obligation to give due regard to International Conven-
,,.
tions and Norms for construing domestic laws more so when there is no
inconsistency between them and there is a void in domestic law. [140-B-H]
E
Prem Sankar v. Delhi Administration, AIR (1980) SC 1535; Mackninnon Mackenzie and Co. v.Audrey D' Costa, [1987) 1SCC469; Sheela Barse
v. Secretary, Children's Aid Society, [1987) 3 SCC 50; Vishaka v. state of
Rajasthan, JT (1997) 7 SC 392; People's Union for Civil Libe1ties v. Union
of India, JT (1997) 2 SC 311 and D.K Basu v. State of West Bengal, [1997)
1 sec 416, referred to.
F
_.,
2.2. In the instant case, the High Court appears to have totally
-· -.-
ignored the intent and content of the International Conventions and
Norms while dealing with the case. In cases involving violation of human
rights, the Courts must forever remain alive to the international instruG
ments and conventions and apply the same to a given case when there is
no inconsistency between the international norms and the domestic law
occupying the field. [141-C]
'1
3.1. In the instant case, the High Court re-appreciated the evidence
while exercising power of judicial review and gave meaning to the expression
H "molestation" as if it was dealing with a finding in a criminal trial. It was not
.,_
APP AREL EXPORT PROMOTION COUNCIL v. AK. CHOPRA
123
;.~
the dictionary meaning of the word "molestation" or "physical assault" A
which was relevant. The statement of Miss X before the Enquiry Officer as
well as in her complaint unambiguously conveyed in no uncertain terms as
to what her complaint was. Repeatedly, did Miss X state before the Enquiry
Officer that the respondent tried to sit clo.~e to her and touch her and that
she reprimanded him by asking that he 'should not do these things'. The B
_,
material on the record, thus, clearly establishes an unwelcome sexually
,.
determined behaviour on the part of the respondent against Miss X, which
was also an attempt to outrage her modesty. [137-E-G; G-H; 138-E-F]
3.2. The entire episode reveals that the respondent had harassed,
pestered and subjected Miss X, by a conduct which is against moral sane- c
tions and which did not withstand the test of decency and modesty and
which projected unwelcome sexual advances. Such an action on the part of
the respondent would be squarely covered by the term "sexual "harassment".
The evidence on the record clearly establishes that the respondent caused
sexual harassment to Miss X, taking advantage of his superior position in D
..
the Council. [137-H; 138-A; G]
-"''
3.3. The observations made by the High Court to the effect that since
the respondent did not "actually molest" Miss 'X but only "tried to molest"
her and, therefore, his removal from service was not warranted, rebel
against realism and lose their sanctity and credibility. In the instant case, E
the behaviour of the respondent did not cease to be outrageous for want of
an actual assault or touch by the superior officer. [141-D]
4. Regarding the question of punishment the High Court overlooked
....
the ground realities and ignored the fact that the conduct of the re- spon· F
I
dent against his junior female employee, Miss X, was wholly against moral
sanctions, decency and was offensive to her modesty. Reduction of punishment in a case like this is bound to have a demoralizing effect on the women
employees and is a retrograde step. There was no justification for the High
court to interfere with the punishment imposed by the departmental
G
authorities. The act of the respondent was unbecoming of good conduct and
..
behaviour expected from a superior officer and undoubtedly amounted to
;..'
sexual harassment of Miss X and the punishment imposed by the appellant,
was, thus, commensurate with the gravity of his objectionable behaviour
and did not warrant any interference by the High Court in exercise of its
power of judicial review. [141-F-H; 142-A]
H
A
B
124
SUPREME COURT REPORTS
[1999] 1 S.C.R.
5.1. The High Court overlooked the settled position that in
departmental proceedings, the Disciplinary Authority is the sole Judge of
facts and in case an appeal is presented to the Appellate Authority, the
Appellate Authority has also power/and jurisdiction to re-appreciate the
evidence and_ come to its own conclusion, on facts, being the sole fact.
finding authority. Once findings of fact, based on appreciation of evidence
are recorded, _the High Court in Writ Jurisdiction may no_t normally
interfere with those factual findings unless it finds that the recorded
findings were based either on no evidence or that the findings were wholly
perverse and/or legally untenable. The adequacy or inadequacy of the
evidence is not permitted to be canvassed before the High Court. Since,
C the High Court does not sit as an Appellate Authority, over the factual
findings recorded during departmental proceedings, while exercising the
power of judicial review, the High Court cannot normally speaking sub·
stitute its own conclusion, with regard to the guilt of the delinquent, for
that of the departmental authorities. Even insofar as imposition of penalty
D or punishment is concerned, unless the punishment or penalty imposed by
the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should
not normally substitute its own opinion and impose some other punish·
ment or penalty. [133-A-D]
E
5.2. It is a well-settled principle tnat even though Judicial Review of
administrativ_e action must remain flexible and its dimension not closed,
yet the Court in exercise of the power of judicial review is not concerned
with the correctness of the findings of fact on the basis of which the orders
are made so long as those findings are reasonably supported by evidence
p and have been arrived at through proceedings which cannot be faulted with
for procedural illegalities or irregularities which vitiate the process by
which the decision was arrived at. Judicial Review, it must be remembered,
is directed not against the decision, but is confined to the examination of
the decision- making process. [133-E-FJ
G
Chief Constable of the Nolth Wales Police v. Evans, (1982) 3 All ER
141, referred to.
6.1. Judicial Review, not being an appeal from a decision, but a
review of the manner in which the decision was arrived at, the Court while
H exercising the power of Judicial Review must remain conscious of the fact
(\
·-
APPAREL EXPORT PROMOTION COUNCILv. AK CHOPRA
125
that if the decision has been arrived at by the Administrative Authority A
·after following the principles established by law and the rules of natural
justice and the individual has received a fair treatment to meet the case;
against him, the Court cannot substitute its judgment for that of the
Administrative Authority on a matter which fell squarely within the sphere
of jurisdiction of that authority. [134-B-C]
Union of India v. Sardar Bhadur, [1972] 4 SCC 618; Union of India
v. Panna Nanda, [1989] 2 SCC 177; B.C. Chatwvedi v. Union of India,
[1995] 6 SCC 749 and Govemment of Tamil Nadu v. A. Rajapandian,
[1995] 1 sec 216, relied on.
6.2. In the instant case both the Single Judge and the Division Bench
of the High Court fell into patent error in interfering with the-findings of
B
c
fact recorded by the departmental authorities and interfering with the
quantum of punishment, as if the High Court was sitting in appellate
jurisdiction. From the judgments of the Single Judge as well as the D
Division Bench, it is quite obvious that the findings with regard to an
"unbecoming act" committed by the respondent, as found by the
Departmental Authorities, were nut found fault with even on re-appreciation of evidence. The High Court did not find that the occurrence as alleged
by the complainant had not taken place. Neither the Single Judge nor the
Division Bench found that the findings recorded by the Enquiry Officer or E
G1e Departmental Appellate Authority were either arbitrary or even perverse. As a matter of fact, the High Court found no fault whatsoever with
the conduct of Enquiry. The High Court fell in error in interfering with
the punishment, which could be lawfully imposed by the departmental
authorities on the respondent for his proven misconduct. To hold that F
since the respondent had not "actually molested,' Miss X and that he had
only "tried to molest" her and had "not managed" to make physical contact
with her, the punishment of removal from service was not justified, was
erroneous. The High Court, should not have substituted its own discretion
for that of the authority. What punishment was required to be imposed,
in the facts and circumstances of the case, was a matter, which fell G
exclusively within the jurisdiction of the competent authority and did not
warrant any interference by the High Court. [136-D-G; 137-A-B]
7. At the conclusion of the hearing, the respondent submitted that
he was repentant of his actions and that he tenders an unqualified apology H
126
SUPREME COURT REPORTS
[1999] 1 S.C.R.
A and that he was willing to also go and to apologize to Miss X, Now, it is
too late in the day to show any sympathy to the respondent in such a case.
Any lenient action in such a case is bound to have a demoralizing effect
on working women. Sympathy in such cases is uncalled for and mercy is
misplaced. (142-B]
B
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 226-227
c
D
of 1999.
From the Judgment and order dated 15.7.97 of the Delhi High Court
in L.P.A. Nos. 27 and 79 of 1997.
P.P. Rao, A.P. Dhamija, Sushi! Jain and A. Mishra for the Appellant.
K.T.S. Tulsi and V.C. Mahajan, D.K. Garg, Vikas Pahwa and R.C.
Kaushik for the Respondent.
The Judgment of the Court was delivered by
DR. ANAND, CJ. Special Leave granted.
Does an action of the superior against a female employee which is
against moral sanctions and does not withstand test of decency and modesE ty not amount to sexual harassment? Is physical contact with the female
employee an essential ingredient of such a charge? Does the allegation that
the superior 'tried to molest' a female employee at the "place of work", not
constitute an act unbecoming of good conduct and behaviour expected
from the superior? These are some of the questions beside the nature of
approach expected from the law courts to cases involving sexual harassF
ment which come to the forefront and require our consideration.
Reference to the facts giving rise to the filing of the present Appeal
by Special Leave at this stage is appropriate :
The respondent was working as a Private Secretary to the Chairman
G of the Apparel Export Promotion Council, the appellant herein. It was
alleged that on 12.8.1988, he tried to molest a woman employee of the
Council, Miss X (name withheld by us) who was at the relevant time
working as a Clerk-cum-Typist. She was not competent or trained to take
dictations. The respondent, however insisted that she go with him to the
H Business Centre at Taj Palace Hotel for taking dictation from the Chair-
.,
APPAREL EXPORT PROMOTION COUNCIL v. AK CHOPRA (DR. ANAND, CJ.]
127
man and type out the matter. Under the pressure of the respondent, she A
went to take the dictation from the Chairman. While Miss X was waiting
for the Director in the room, the respondent tried to sit too close to her
and despite her objection did not give up his objectionable behaviour. She
later on took dictation from the Director. The respondent told her to type
it at the Business Centre of the Taj Palace Hotel, which is located in the
Basement of the Hotel. He offered to help her so that her typing was not
found fault with by the Director. He volunteered to show her the Business
Centre for getting the matter typed and taking advantage of the isolated
place, again tried to sit close to her and touch her despite her objections.
The draft typed matter was corrected by Director (Finance) who asked
Miss X to retype the same. The respondent again went her to the Business
Centre and repeated his overtures. Miss X told the respondent that she
would "leave the place if he co11ti11ued to behave like that". The respondent
did not stop. Though he went out from the Business Centre for a while, he
again came back and resumed his objectionable acts. According to Miss
B
c
X, the respondent had tried to molest her physically in the lift also while D
coming to the basement but she saved herself by pressing the emergency
button, which made the door of the lift to open. On the next day, that is
on 16th August, 1988 Miss X was unable to meet the Director (Personnel)
for lodging her complaint against the respondent as he was busy. She
succeeded in meeting him only on 17th August, 1988 and apart from
narrating the whole incident to him orally submitted a written complaint
also. The respondent was placed under suspension vide an order dated
18th August, 1988. A charge-sheet was served on him to which he gave a
reply denying the allegations and asserting that "the allegations were imaginary and motivated". Shri J.D. Giri, a Director of the Council, was
appointed as an Enquiry Officer to enquire into the charges framed against
the respondent. On behalf of the management with a view to prove the
charges as many as six witnesses were examined including Miss X. The
respondent also examined seven witnesses. The Enquiry Officer after
considering the documentary and oral evidence and the circumstances of
E
F
the case arrived at the conclusion that the respondent had acted against
moral sanctions and that his acts against Miss X did not withstand the test G
of decency and modesty. He, therefore, held the charges levelled against
the respondent as proved.
The Enquiry Officer in his report recorded the following, amongst
other, findings : •
H
A
B
c
128
SUPREME COURT REPORTS
[1999) 1 S.C.R.
"8.1. Intentions of Shri A.K. Chopra were ostensibly manifested in
his actions and behaviour; Despite reprimands from Miss X he
continued to act against moral sanctions;
8.2. Dictation and subsequent typing of the matter provided Shri
A.K. Chopra necessary opportunity to take Miss X to the Business
Centre a secluded place. Privacy in the Business O:ntre room
made his ulterior motive explicit and clear;
8.3. Any other conclusion on technical niceties which Shri A.K.
Chopra tried to purport did not withstand the test of decency and
modesty."
The Enquiry Officer concluded that Miss X was molested by the
respondent at Taj Palace Hotel on 12th August, 1988 and that the respondent had tried to touch her person in the Business Centre with ulterior
motives despite reprimands by her. The Disciplinary Authority agreeing
D with the report of the Enquiry Officer, imposed the penalty of removing
him from service with immediate effect on 28th June, 1989.
Aggrieved, by an order of removal from service, the respondent filed
a departmental appeal before the Staff Committee of the appellant. It
appears that there was some difference of opinion between the Members
E of the Staff Committee and the Chairman of the Staff Committee during
the hearing, 'but before any decision could be arrived at by the Staff
Committee, the respondent, on the basis of some unconfirmed minutes of
the Staff Committee meeting, filed a Writ Petition in the High Court il!ter
alia challenging his removal from service. On January 30, 1992, the Writ
p
Petition was allowed and respondent Nos. 1 and 3, therein, were directed
to act upon the decision of the Staff Committee, assuming as if the decision,
as alleged, had been taken at the 34th Meeting of the Staff Committee on
25th July, 1990. The appellant challenged the judgment and order of the
High Court dated 30th January, 1992, through Special Leave Petition
(Civil) No. 3204 of 1992 in this Court. While setting aside the judgment
G and order of the High Court dated 30th January, 1992, a Division Bench
of this Court opined:
"We have been taken through the proceedings of the meeting
starting from 33rd meeting upto 38th meeting by both the learned
H
Counsel appearing for the respective parties. Considering the same
••
-..
APPAREL EXPORT PROMOTION COUNCIL v. AK CHOPRA [DR ANAND, CJ.)
129
,.._
it appears to us that the alleged decision taken on the said Agenda A
No. 5 in the 33rd an-d 34th meeting is in dispute and final decision
on the same has not yet been taken and the alleged resolution on
the said Item No. 5 still awaits ratification. In that view of the
matter, the High Court was wrong in deciding the disputed question of fact in favour of Respondent No. 1. We, therefore set aside B
-1
the impugned order of the Delhi High Court as according to us
~-
the final decision on the resolution taken on the said Agenda No.
5 has not yet been finally ratified. We are not inclined to consider
the other questions sought to be raised_ in this appeal and the said
questions sought are kept open. In view of the pendency of the c
matter for a long time, we direct the appellant-company to convene
the meeting of Staff Committee as early as practicable but not
exceeding two months from today so that the question of ratification of the resolution on the said Agenda No. 5 taken in the
meeting of the Staff Committee is finally decided."
D
...
'"
Pursuant to the above directions, the Staff Committee met again and
considered the entire issue and came to the conclusion that the order
passed by the Director General terminating the services of the respondent on 28th June, 1989 was legal, proper and valid. The appeal was
E
dismissed and the removal of the respondent for causing 'sexual
harassment' to Miss X was upheld. The respondent, thereupon, filed
Writ Petition No. 352 of 1995 in the High Court, challenging his
removal from service as well as the decision of the Staff Committee
dismissing his departme~tal appeal.
'*
F
"'
The learned Single Judge allowing the Writ Petition opined "that. ....
the petitioner tried to molest and not that the petitioner had inf act molested
the complainant." The learned Single Judge, therefore, disposed of the Writ
Petition with a direction that 'the respondent be reinstated in service' but
that he would not be entitled to receive any back wages. The appellant was G
;.
directed to consider the period between the date of removal of the respon-
·.,.!
dent from service and the date of reinstatement as the period spent on duty
and to give him consequential promotion and all other benefits. It was,
:1
however, directed that the respondent be posted in any other office outside
--",
Delhi, at least for a period of two years.
H
130
SUPREME COURT REPORTS
[1999] 1 S.C.R.
A
The appellant being aggrieved by the order of reinstatement filed
·'4
Letters Patent Appeal No. 27 of 1997 before the Division Bench of the
High Court. The respondent also filed Letters Patent Appeal No. 79 of
1997 claiming "back wages and appropriate posting". Some of the lady
employees of the appellant on coming to know about the judgment of the
B
learned Single Judge, directing the reinstatement of the respondent, felt
agitated and filed an application seeking intervention in the pending L.P .A.
The Division Bench vide judgment and order dated 15th July, 1997, dis-
••
missed the L.P.A. filed by the appellant against the reinstatement of the
respondent. The Division Bench agreed with the findings recorded by the
learned Single Judge that the respondent had "tried" to molest and that he
c had not "actually molested" Miss X and that he had "not managed" to make
the slightest physical contact with the lady and went on to hold that such
an act of the respondent was not a sufficient ground for his dismissal from
service. Commenting upon the evidence, the Division Bench observed :
D
"We have been taken in detail through the evidence/deposition of
Miss X. No part of that evidence discloses that A.K Chopra even
....
managed to make the slightest physical contact with the lady. The
)le
entire deposition relates that A.K. Chopra tried to touch her.
As we have said that no attempts made, allegedly by A.K.
E
Chopra, succeeded in making physical contact with Miss X, even in
the narrow confines of a Hotel 'lift'.
•
To our mind, on such evidence as that was produced before
the Enquiry Officer, it is not even possible to come to a conclusion
F
that there is an "attempt to molest" as there have been no physical
contact. There being no physical contact between A.K. Chopra and
..
Miss X, there cannot be any attempt to "t1ied to molest" on the part
~
of A.K. Chopra".
I-'
(Emphasis ours)
G
Aggrieved by the judgment of the Division Bench,· the employerappellant has filed this appeal by special leave.
~
We have heard learned counsel for the parties and perused lhe
~
H record.
APPAREL EXPORT PROMOTION COUNCIL v. AK CHOPRA [DR. ANAND, CJ.]
131
j.,-
The Enquiry Officer has found the charges established against the A
;,..
respondent. He has concluded that the respondent was guilty of molestation and had llied to physically assault Miss X. The findings recorded by
the Enquiry Officer and the Disciplinary Authority had been confirmed by
the Appellate Authority (the Staff Committee) which admittedly had co-extensive powers to re- appreciate the evidence as regards the guilt as well as B
_,
about the nature of punishment to be imposed on the respondent. The Staff
,.
Committee while dealing with the question of punishment has observed:
"Shri Chopra has also mentioned in his appeal that the penalty on
him was harsh and disproportionate to the charge levelled against c
him. On this, the Staff Committee observed that no lenient view
~
would be justified in a case of molestation of a woman employee
~
when the charge was fully proved. Any lenient action in such a
case would have a demoralizing effect on the working women. The
Staff Committee, therefore, did not accept the plea of Shri Chopra
that a lenient view be taken in his case."
D
_,,
-"'.'.
The learned Single Judge, did not doubt the correctness of the
occurrence. He did not disbelieve the complainant. On a re- appreciation
of the evidence on the record, the learned Single Judge, however, drew his
""
own inference and found that the respondent had "tried to molest" but E
since he had not "actually molested" the complainant, therefore, the action
of the respondent did not warrant removal from service. The learned Single
Judge whole directing the reinstatement of the respondent observed :
"15. In the totality of facts and circumstances, ends of justice would
meet if the petitioner is reinstated in service but he would not be
F
_,
entitled to any back wages. The Council shall consider this period
I
j ..
as on duty and would give him consequential promotion to the
petitioner. He shall be entitled to all benefits except back wages.
The petitioner shall be posted in any other office outside Delhi, at
least for a period of two years."
G
"'
(Emphasis ours)
',,i
-\
The Division Bench of the High Court also while dismissing the
i
L.P .A. filed by the appellant did not doubt the correctness uf the occur-
~·
rence. It also concluded that since the respondent had not actually molested H
'=l.
132
SUPREME COURT REPORTS
( 1999) 1 S.C.R.
A Miss X and had only tlied to assault her and had "not managed" to make
·-..i,
any physical contact with her, a case of his removal from service was not
..
made out. Both the learned Single Judge and the Division Bench did not
doubt the correctness of the following facts:
1.
That Miss X was a subordinate employee while the responB
dent was the superior officer in the organization ;
i•·
2.
That Miss X was not qualified to take any dictation and had
so told the respondent;
c
3.
That the respondent pressurized her to come with him to Taj
Palace Hotel to take dictation despite her protestation, with
an ulterior design;
4.
That the respondent taking advantage of his position, tried to
molest Miss X and in spite of her protestation, continued with
D
his activities which were against the moral sanctions and did
not withstand the test of decency and modesty;
"·
":>.
5.
That the respondent tried to sit too close to Miss X with
ulterior motives and all along Miss X kept reprimanding him
E
but to no avail;
6.
That the respondent was repeating his implicit unwelcome
sexual advances and Miss X told him that if he continued to
behave in that fashion, she would leave that place;
F
7.
That the respondent acted in a manner which demonstrated
unwelcome sexual advances, both directly and by implication;
• _.
8.
That action of the respondent created an intimidated and
hostile working environment in so far as Miss X is concerned.
G
The above facts are borne out from the evidence on the record and
on the basis of these facts, the departmental authorities keeping in view
the fact that the actions of the respondent were considered to be subversive
\~
of good discipline and not conducive to proper working in the appellant
Organization where there were a number of female employees, took action
H against the respondent and removed him from service.
APPAREL EXPORT PROMOTION COUNC!Lv. AK CHOPRA (DR. ANAND. CJ.)
133
The High Court appears to have over-looked the settled position that A
-,>-
in departmental proceedings, the Disciplinary Authority is the sole judge
..
of facts and in case an appeal is presented to the Appellate Authority, the
Appellate Authority has also the power/and jurisdiction to re-appreciate
the evidence and come to its own conclusion, on facts, being the sole fact
finding authorities. Once findings of fact, based on appreciation of B
~
evidence are recorded, the High Court in Writ Jurisdiction may not nor-
>··
mally interfere with those factual findings unless it finds that the recorded
findings were based either on no evidence or that the findings were wholly
perverse and/or legally untenable. The adequacy or inadequacy of the
evidence is not permitted to be canvassed before the High Court. Since, c
the High Court does not sit as an Appellate Authority, over the factual
findings recorded during departmental proceedings, while exercising the
power of judicial review, the High Court cannot normally speaking substitute its· own conclusion, with regard to the guilt of the delinquent, for
that of the departmental authorities.