By its Secretary K. GomathiHaving its Office at:20/2 Engineer Subbaraya Mudali StreetVellore v. The State of TamilnaduRep. By its SecretaryDepartment of Health & Family WelfareFort

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:05.01.2007CORAM:THE HON'BLE MR. JUSTICE P. SATHASIVAMANDTHE HON'BLE MR. JUSTICE S. TAMILVANANW.P.No.18868 OF 1997The Tamilnadu Village HealthNurses’ Association (Reg.No.13/93)Rep. By its Secretary K. GomathiHaving its Office at:20/2 Engineer Subbaraya Mudali StreetVellore... Petitionervs.1.The State of TamilnaduRep. By its SecretaryDepartment of Health & Family WelfareFort St. George, Chennai 600 009.2.The Director of Public Health & Preventive Medicine DMS Complex, Teynampet Chennai 600 006.3.The Superintendent of Police Tiruvarur District.4.Dr.P. Elangovan5.Feminist Association for Social Action a Society registered under the Tamil Nadu Societies Registration Act, 1975, rep. By its Secretary.6.V. Geetha Coordinator, Tamizhaga Pengal Orunginaipu Iyakam No.4, Rangan Street, T.Nagar, Chennai 17. https://hcservices.ecourts.gov.in/hcservices/

7.Penn Urimai Iyakkam a Society registered under the Societies Act, rep.by its Secretary. (R.5 to R.7 were impleaded as respondents 5 to 7, as per the order of this Court dated 03.09.2003 made in WPMP.Nos.2545, 2715 and 3960 of 1998). .. RespondentsWrit Petition filed under Article 226 of the Constitutionof India praying for issuance of a writ of Mandamus as statedtherein.For petitioner : Mr. VasudevanFor respondents : Mr. M. Sekar 1 to 3 Special Government Pleader Mr. S. Vijayakumar for R.4. Ms. D. Geetha for R.6. Ms. Geetha Ramaseshan for R.7. No appearance for R.5...ORDER(Order of the Court was made by P. SATHASIVAM,J.)The Tamil Nadu Village Health Nurses’ Association through itsSecretary filed the above writ petition to issue a writ of Mandamusdirecting the respondents 1 to 3 to take appropriate action againstthe 4th respondent- Dr.P.Elangovan, with regard to the sexualharassment in the work place by following the directions of theSupreme Court in Vishaka and Others v. State of Rajasthan and Others[(1997) 6 SCC 241].2. The case of the petitioner Association as briefly stated ishereunder: (a) The deponent is the District Secretary of the petitionerAssociation. The petitioner Association was formed in the year 1987and registered in 1993 to represent the grievances and other needs ofthe village Health Nurses throughout Tamil Nadu. Right from thebeginning, the Nurses at Kadugoor village in Ariyalur taluk have beenfacing sexual harassment and abuse from Dr.P.Elangovan, MedicalOfficer at Poyyur Sub-Primary Health Centre, 4th respondent herein.The Kadugoor Primary Health Centre had four sub-centres at Poyyur,Sankarudi, Vilangudi and Manakkal. The review meetings were to be https://hcservices.ecourts.gov.in/hcservices/ held at Ariyalur Panchayat Union Office on last Tuesday of everymonth. The 4th respondent, Dr.P.Elangovan made the Village HealthNurses to stand throughout the meetings and also wrapped theirknuckles and screwed ears for minor mistakes and he used to pokeinto their hips and waists. (b) On 29.7.1997, during one of the meetings the Village HealthNurses were asked to demonstrate the fundus test to locate theposition of a 12 week foetus of a pregnant woman. He ordered oneShantha (Sector Health Nurse – in short, 'SHN') who was pregnant todemonstrate the fundus test in front of male orderlies and others.All the men present began to dark and make fun of the above SHNs. forthe predicament faced by them. As the said demonstration wouldnecessitate them to disrobe to present the naked limbs to the gaze ofall persons, they refused to do so and began to cry. (c) On 30.7.1997, a written complaint of the above saidharassment by the 4th respondent, Dr.P.Elangovan was prepared, signedby 12 Village Health Nurses and submitted to the Perambalur DistrictDeputy Director of Medical Services and a copy was marked to theAssociation. On 1.8.1997, when the Village Health Nurses,Parameswari, Rajeswari and Suseela were waiting at Ariyalur BusStand, one Chellamuthu who is known to Dr.P.Elangovan allegedlythreatened them with physical harm unless they withdrew thecomplaint. Becoming fearful for the safety of their lives, theVillage Health Nurses sent fax message to the Hon’ble Chief Ministerof Tamil Nadu seeking protection. They also informed their immediatesuperiors about the threat to their lives. As the superiors refusedto extend any protection, the said Village Health Nurses,Parameswari, Rajeswari and Suseela made complaint to Ariyalur Policeon 2.8.1997. They were again threatened by the said Chellamuthu whenthey came out of the Police Station. First information report wasregistered in Crime No.267 of 1997 on the file of Ariyalur PoliceStation under sections 341, 352 and 506(II) IPC. (d) The said Dr.P.Elangovan also used to take away the leavesalary by telling the Nurses that they are not entitled to the samesince they are on medical leave for certain days and thereby makethem sign the registers by force, but he never used to show thecredit side that the money was returned and pocketed the entiremoney. In one particular case, he summoned one Primary Health CentreNurse, by name, Shantha while she was on field work and insisted thatsince it became late, she could sleep in his clinic itself forwhich she replied that she had relatives and left the place. He usedto use abusive words referring to women nurses. In the year 1996-97,he withheld Rs.500/- from the above said Nurse which was a portion ofpongal Bonus for which he gave no explanation. In 1994, he soldPolio Drops for Rs.60/- to Village Health Nurses. When he insistedto remove the nurse strip and show him the foetal position in 12 https://hcservices.ecourts.gov.in/hcservices/ week pregnant woman, she broke down. He also insisted that sheshould act-out the delivery process. He used to collect money forfilling up petrol to his vehicle and was never in the habit ofreturning the same. On 28.8.1997, the said Shantha received a letterfrom another Nurse stating that the said Medical Officer had arrangedsome persons to strip of her saree and that she should be carefulabout the same. Due to this timely warning she made arrangements notto go to the area and thus saved herself from the situation. He alsomade the Nurses to palpate by stripping of sarees. In this regard,complaints were given to the Director of Public Health, 2nd respondentherein on 19.9.1997 and 18.10.1997.(e) Even though all the affected Village Health Nurses reportedthe matter to their immediate superiors, no enquiry was conducted andhence, all the Village Health Nurses demonstrated before the RegionalDirector’s Office at Ariyalur on 11.8.1997. Though an enquiry wasordered against Dr.P.Elangovan, nothing was fruitful. No action wastaken against Dr.P.Elangovan, but the affected Village Health Nurseswere punished for their complaints. The failure of the Department ofPublic Health and Preventive Medicine to take necessary steps tosafeguard the work environment of Village Health Nurses and toprotect their fundamental rights and also to take action againstDr.P.Elangovan is contrary to the mandate of the Supreme Court inVishaka case. Further, the so-called enquiry/enquiries conducted bythe official respondents have not resulted in any action against the4th respondent, not fulfilling the complaint mechanism as set out bythe Supreme Court in Vishaka case. The Department has also donenothing to prevent such harassment made by the said Medical Officer.In those circumstances, having no other remedy, the Association hasfiled the above writ petition highlighting the grievances of theirmembers.3. The Special Secretary to Government, Health and FamilyWelfare Department, Madras filed a counter affidavit on behalf ofrespondents 1 to 3, wherein it is stated that pursuant to therepresentations of Village Health Nurses working in Health SubCentres, Ariyalur taluk, an enquiry was conducted by the AdditionalDirector of Public Health and Preventive Medicines on 12.8.1997 and13.8.1997 with the Doctors and staff members of Kadugur, Poyyur,Manakal, Sundakudi and Vilankudi Primary Health Centres. It wasdecided that Dr.P.Elangovan could be released to Director of Medicaland Rural Health Services side and disciplinary action should beinitiated against him after receipt of enquiry report. 4. The Deputy Director of Health Services also conducted anenquiry on 1.8.1997. In the enquiry report, the Deputy Directorstated that on various dates fixed for enquiry, the Village HealthNurses neither attended the enquiry, nor came forward to submit theirwritten statements regarding the sexual harassment, but, instead, https://hcservices.ecourts.gov.in/hcservices/ they went on agitation and hence, he could not proceed further withthe enquiry. Thereafter, Tamil Nadu Village Health NursesAssociation submitted a representation dated 8.12.1997 to theDirector of Public Health and Preventive Medicine requesting him totake action against Dr.P.Elangovan for his sexual harassment againstthe Village Health Nurses. Their demand was considered by theGovernment in G.O.(Rt.) No.1764, Health and Family Welfare Departmentdated 23.12.1997 by which an Enquiry Committee was constituted witha direction to submit a report before the end of December, 1997.Even after the constitution of the Enquiry Committee, the VillageHealth Nurses did not participate in the enquiry conducted on8.1.1998, 9.1.1998 and 23.1.1998. Meanwhile, the petitioner filedmiscellaneous petition in W.M.P.No.2287 of 1998 and obtained an orderof stay of further proceedings of the enquiry. 5. The Committee constituted by the Government consists of fourmembers including one Chairperson and all the four members are women.The 4th member Dr.Kausalya Devi is from Non-Governmental Organisationviz., one of the Trustees of Gandhigram Rural Institute, DindigulDistrict. Inasmuch as the allegation relating to sexual harassmenthas been referred to the Enquiry Committee which would submit itsreport only after a detailed enquiry, after vacation of stay ordisposal of the above writ petition, the respondents are not in aposition to make any comment on the factual averments made by thepetitioner in respect of the sexual harassment perpetrated by the 4threspondent against the Village Health Nurses. 6. During the pendency of the writ petition, the FeministAssociation for Social Action, a Society registered under the TamilNadu Societies Registration Act, 1975, represented by its Secretary,V.Geetha, Coordinator, Tamizhaga Pengal Orunginaipu Iyakam and thePenn Urimai Iyakkam, a Society registered under the Societies Act,represented by its Secretary were impleaded as respondents 5 to 7respectively. 7. Heard Mr. Vasudevan, learned counsel for the petitionerAssociation, Mr.M.Sekar, learned Special Government Pleader forrespondents 1 to 3, Mr.S.Vijayakumar, learned counsel for the 4threspondent, Ms.D.Geetha, learned counsel for 6th respondent andMs.Geetha Ramaseshan, learned counsel for the 7th respondent.8. The relief sought for in the writ petition is to takeappropriate action against the 4th respondent, Dr.P.Elangovan withregard to the sexual harassment in workplace in terms of thedirections of the Supreme Court in Vishaka case. In the earlierparagraphs, we have already referred to several allegations/instanceslevelled against the 4th respondent, Dr.P.Elangovan. It is needlessto say that if the same are substantiated by duly constitutedCommittee, necessary action would be taken by the competent https://hcservices.ecourts.gov.in/hcservices/ authority. In such circumstances, it is not proper for this Court togive a finding as to the merit/genuineness of those allegations. 9. It is the stand of the first respondent/State Government thatconsidering the representation by the petitioner-Association, theGovernment in G.O.(Rt.) No.1764, Health and Family Welfare Departmentdated 23.12.1997 constituted the Enquiry Committee with followingpersons as members to enquire into the alleged sexual harassment onthe Village Health Nurses:1.Tmt.Sheela Rani Chunkath, I.A.S., Director of Reproductive Child Health and DANIDA and Commissioner of Maternity and Child Health ……Chairperson2. Dr.Nageswari, Deputy Director of Medical Education(Schemes),Office of the Director of Medical Education.……Member3.Tmt.V.Sumathi Kumaraswamy,Professor, Government College of Nursing, Chennai Medical College,Chennai.……Member.4. Dr.Kausalya Devi,Trustee, Gandhigram Institute,Dindigul.……Member(Non-Government Organisation)10. In the same order, the Government also directed the EnquiryCommittee to submit a report on the persons responsible for suchharassment before the end of December, 1997. It is also explainedin the counter affidavit that after the constitution of theCommittee, the Village Health Nurses alleged to have been affected bythe sexual harassment by the 4th respondent-Dr.P.Elangovan did notparticipate in the enquiry conducted on 8.1.1998, 9.1.1998 and23.1.1998, but, according to the Government, they filed the abovewrit petition praying for direction to enquire into the matter interms of the directions of the Supreme Court in Vishaka case. It isalso the grievance of the Government that even when the EnquiryCommittee was constituted in terms of the directions of the SupremeCourt in Vishaka case, the petitioner filed an interim applicationin W.M.P.No.2287 of 1998 for stay of further proceedings under theG.O.(Rt.) No.1764, Health and Family Welfare Department dated23.12.1997 and this Court, by order dated 11.2.1998, stayed allfurther proceedings under the Government Order. In thosecircumstances, according to the Government, the Committee is not in a https://hcservices.ecourts.gov.in/hcservices/ position to continue the enquiry proceedings. 11. With regard to the constitution of the Committee as well asthe stand of the Government in appointing four women membersincluding one Dr.Kausalya Devi, Trustee of Gandhigram Institute,Dindigul, a non-governmental organization, being 4th member,Mr.Vasudevan, learned counsel for the petitioner submitted thatexcept the 4th member, all others are Government officials and theyare connected with Health Department wherein the 4th respondent,Dr.P.Elangovan is serving as a Medical Officer. As per theguidelines formulated by the Apex Court in Vishaka case, theComplaints Committee should be headed by a Woman and not less thanhalf of its members should be women. Further, a third party eitheran NGO or other body who is familiar with the sexual harassmentshould also be nominated as one of members of the Committee.Mr.Sekar, learned Special Government Pleader has also brought to ournotice that pursuant to the above judgment of the Supreme Court, theChief Secretary to the Government instructed all Heads of Departmentsto constitute Complaints Committee, and he also placed before uscopies of various orders/instructions issued. Though we accept thestand taken by the Government in constituting a Committee,unfortunately, the Committee is not in a position to enquire intothe matter and submit its report in view of the stay of all furtherproceedings under the Government Order at the instance of thepetitioner. In view of several details/particulars furnished in theaffidavit, we are of the view that it is but proper to find out thetruth in order to ameliorate the grievance expressed by the personsaffected. 12. Mr.S.Vijayakumar, learned counsel for the 4th respondentsubmitted that in view of the fact that the 4th respondent was verystrict in maintaining administration, certain allegations have beenmade against him and as on date, he is having only a short tenure inGovernment Service and prayed for dismissal of the writ petition. Atthe same time, as stated earlier, the complaints/allegations madeagainst the 4th respondent, Dr.P.Elangovan cannot be taken lightly. 13. It is true that gender equality includes protection fromsexual harassment and right to work with dignity, but, in a caseinvolving charge of sexual harassment, the courts are required toexamine the broader probabilities of the case and the Courts mustexamine the entire material to determine the genuineness of thecomplaint. This kind of cases are to be dealt with greatsensitivity. Sympathy in favour of the superior officer is misplacedand at the same time, the statement of victim must be appreciatedkeeping in mind the entire gamut of the case. 14. It is true that the Committee was constituted by theGovernment to enquire into the matter and submit a report to the Head https://hcservices.ecourts.gov.in/hcservices/ of the Department. Since nearly nine years have elapsed and in theabsence of details about the availability of the very same persons,we are not inclined to permit the same Committee to proceed furtherwith the matter. Instead, inasmuch as several affected Village HealthNurses represented their grievance to their immediate superiors andothers either individually or through Association, we feel it properto direct the Government to constitute a fresh Committee to enquireand find out the truth in order to determine the genuineness of theallegations made against the 4th respondent-Dr.P.Elangovan. 15. Accordingly, we issue the following directions:(i) the first respondent/Government is to constitutea fresh Enquiry Committee on the basis of directions of theSupreme Court in Vishaka case to enquire into theallegations relating to sexual harassment of Village HealthNurses by the 4th respondent-Dr.P.Elangovan within a periodof eight weeks from the date of receipt of copy of thisorder;(ii) after the constitution of the Enquiry Committee, thesame may be intimated to the petitioner Association as wellas the persons who made complaints against the 4threspondent- Dr.P.Elangovan;(iii) the Committee shall enquire and submit its reportwithin a period of three months from the date of itsconstitution; and(iv) it is made clear that if there is no proper responsefrom the persons/complainants due to efflux of time, it isfor the Committee to submit its views to the appropriateauthority.Accordingly, the writ petition is ordered with the above directions.No costs.KhSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary State of Tamilnadu Department of Health & Family Welfare Fort St. George, Chennai 600 009.2.The Director of Public Health & Preventive Medicine DMS Complex, Teynampet Chennai 600 006.3.The Superintendent of Police Tiruvarur District.1 CC TO THE G.P, SR 12551 CC TO MR.S. VIJAYKUMAR, ADVOCATE SR 11831 CC TO MR.S.S. VASUDEVAN, ADVOCATE SR 1685 Order in W.P.18868/199705.01.2007SSV(CO)BP/10.1