Madrasdated High Court · 2007

Both the petitions are filed under Article 226 of theConstitution of India. W.P.No.10157 of 2000 has been filed prayingto Issue a Writ of Declaration to declare that the enquiryconstituted by the first respondent and being conducted by the 3rdrespondent vide ROC NO.24/2000 Con B2 dated 14-6-2000 is illegal andunconstitutional and consequently direct the first respondent toimplement the directions given by the Hon'ble Supreme Court inVishaka vs. State of Rajasthan (AIR 1997 SC 3011) and properlyinvestigate into the petitioner's complaint dated 18-2-2000 againstthe 2nd respondent through an independent complaints committeeconsisting of representatives of Women's Organisations and NGOs andpunish him after affording due protection to the petitioner. W.P.No.29024 of 2003 has been filed praying to issue a Writof Certiorarified Mandamus, to call for the records of the respondentin R.O.C. No.24/2000 Con B.2 dated 10.10.2002 and to quash the same,directing the respondent to reinstate the petitioner in service withall attendant benefits.For Petitioner: Mr. S.V.Jayaraman, in W.P.No.29024/03, Senior Counselwho is R2 in for Mr.K.BalachandranWP.10157/2003 For Petitioner in W.P.No.10157/00: Ms.R.VaigaiFor Respondent in W.P. No.29024/03: Mr.B.Rajendran for R1 & R3 in W.P. No.10157/00 : Mr.C. Kalaiselvan AGP COMMON ORDERDHARMA RAO ELIPE, J.While the Complainant in the domestic enquiry, which wasinitiated on her complaint, has filed W.P.No.10157 of 2000 seeking aWrit of Declaration, the delinquent Officer who was inflicted withthe order of compulsory retirement has filed W.P.No.29024 of 2003challenging the said punishment. Since both the matters areinextricably connected with each other, they were heard together forbetter appreciation of the facts of the case and this common order ispassed. https://hcservices.ecourts.gov.in/hcservices/

2. On the basis of the complaint dated 18.2.2000 given by thepetitioner in W.P.No.10157 of 2000 (hereinafter referred to as 'thecomplainant') against the petitioner in W.P.No.29024 of 2003(hereinafter referred to as the delinquent officer), alleging 'sexualharassment' and 'indecent behaviour' at the place of work,disciplinary proceedings were initiated against the delinquentofficer in which he was found guilty and the punishment of compulsoryretirement from service was imposed on him. 3. The complaint against the delinquent-officer, in the words ofthe complainant, is as follows:"My Lord, with regret, I would like to submit that soonafter days of my deputation to the Advisory Board, Mr. K.Muthukumarasamy started behaving with me in an impropermanner by using intolerable words. He used to blabber somany things including saying that his wife is a permanentpatient and that he is not leading a happy married lifeand so on. Since then, I have been avoiding him and heused to get annoyed for that. Later this became anuisance and he started going to the extent of writinghis expressions in bits of papers and giving it to me.Though, I use to destroy them then and there, I have somein hand. He even started calling my house in themidnights which I used to avoid saying one reason or theother.... ... ...Now, though I have been transferred from the saidTribunal (CLAA) recently, he is continuing his harassmentone way or the other. Even now instead of feelingremorse, he harasses me again and again by words anddeeds."4. A show cause notice was issued to the delinquent-officercalling upon him to submit his explanation. Since the explanationoffered by the delinquent-officer was found to be not satisfactory,the following charges were framed against him and a departmentalenquiry was initiated against him:1.That you, Thiru Muthukumarasamy, Deputy Registrar, nowon deputation as Deputy Registrar, Tribunal underCriminal Law Amendment Act, Chennai had behaved in animproper manner with Tmt. G. Pushkala, P.A. to Hon'bleJudges, while she was working as P.A. on deputation inthe said Tribunal by issuing two slips to hercontaining the following words: "I want to kiss oncheeks, chin and lips" "Jd;gk; neh;ifapy; ahHpirj;J,d;gk; nrh;f;f khl;lhah>" and this amounts to a demand or https://hcservices.ecourts.gov.in/hcservices/ request for sexual favours and sexual harassment at theplace of work and thereby you outraged her modesty andcaused mental torture and agony to her and thuscommitted the acts of misconduct unbecoming of aGovernment Servant for which you are liable to bepunished under the Tamil Nadu Civil Services(Discipline and Appeal) Rules.2.That you, Thiru K. Muthukumarasamy, Deputy Registrar,now on deputation as Deputy Registrar, Tribunal underCriminal Law Amendment Act, Chennai while Tmt.G.Pushkala, P.A. to Hon'ble Judges, was working as P.A.on deputation in the said Tribunal, called her house inthe midnights and caused mental torture and agony toher and that even after her transfer from the saidTribunal, you had harassed her again and again by wordsand deeds, thereby outraged her modesty and causedmental torture and agony to her and thus committed theacts of misconduct unbecoming of a Government servantfor which you are liable to be punished under the TamilNadu Civil Services (Discipline and Appeal) Rules."6. In the enquiry proceedings, the complainant examinedherself as P.W.1 and also examined five other persons, which includedher husband, her colleague and other court-staff. She also producedeight documents as documentary evidence. The delinquent-officerexamined a court-staff as defence witness and produced fourteendocuments as documentary evidence. The enquiry officer, on the basisof the materials placed before him, came to the conclusion that thedelinquent-officer harassed, pestered and subjected the complainantby a conduct against moral sanction and could not stand the test ofdecency and modesty and made unwelcome sexual advances, which actionwould squarely covered by the term "sexual harassment" even thoughthere was no physical contact and held that the delinquent was guiltyfor the act of "sexual harassment" in the work place against thecomplainant and as such the charges levelled against the delinquentwere proved. The delinquent-officer was given an opportunity tosubmit his further representation, if any, to the findings of theenquiry officer, but his further representation and representationmade by him in person were found to be not satisfactory and theAppointing Authority has accepted the findings of the enquiry officerand imposed the punishment of "compulsory retirement" from service onthe delinquent officer. 7. The learned senior counsel for the delinquentofficer/petitioner in W.P.No.29024 of 2003 has submitted that thepetitioner was originally appointed as Steno-Typist in the District https://hcservices.ecourts.gov.in/hcservices/ Court, Vellore in the Tamil Nadu Judicial Ministerial Service in theyear 1981 and later on in the year 1988, he was appointed on transferas P.A. to Hon'ble Judges and since his lien over the post in theparent department has not been severed as per the Fundamental Rules(FR) and Government Orders, his "Appointing Authority" is theDistrict Judge, Vellore, who alone is competent to initiatedisciplinary action and to impose punishment. It was furthercontended that since the alleged "sexual harassment" took place whenthe petitioner and the complainant were working in the Tribunal(CLAA), it is the Presiding Officer of the Tribunal who is thecompetent authority to initiate disciplinary action and to imposepunishment and that Madras High Court Service Rules will have nobearing and as such, the disciplinary proceedings initiated by therespondent was in violation of the procedures as well as the C.C.A.Rules.8. On the merits of the complaint, learned senior counsel forthe delinquent officer submitted that the two slips in question werepart of the materials prepared by the delinquent for submitting adissertation on the subject "Child Labour – Exploitation PreventiveMeasures and Indepth Study" to the Annamalai University forcompleting his M.L. Degree Course. Learned senior counsel furthersubmitted that the delinquent used to note down his thoughts on theabove said subject on bits of papers/slips and later on incorporatethe same in his dissertation and in fact, the complainant herselfassisted the delinquent in preparation of the dissertation and thatshe also knew well that the delinquent used to instantaneously jotdown his thoughts on bits of paper/slips and later on incorporate thesame in the dissertation. Learned senior counsel submitted that thelodging of the complaint was only a counter-blast to the delinquent'sdemand for repayment of the money borrowed by the complainant and inmaking such a complaint of "sexual harassment", the complainant wasinduced and encouraged by a group of disgruntled staff, who could notdigest the successive promotions viz. Sub Assistant Registrar,Assistant Registrar and Deputy Registrar given to the delinquent in ashort span of time. Learned senior counsel submitted that thewritings found on the two slips were not intended towards thecomplainant for soliciting "sexual favours" from her. The said slips,which were kept in the office room of the delinquent, were stealthilyremoved by the complainant for using the same as the basis for makinga complaint of "sexual harassment" against the delinquent.9. The learned counsel appearing for the complainant wouldsubmit that the delinquent officer, taking advantage of his positionas superior to that of the complainant, has started behavingindifferently and issued the slips expressing his quench towards her https://hcservices.ecourts.gov.in/hcservices/ and even made phone calls to her during middle of the nights,tarnishing her image in the family circle and disturbing her familylife also and unable to bear the torture meted out to her, thecomplainant had to lodge the complaint against the erring official,which was properly considered by the Enquiry Officer and theAppointing Authority, affording all opportunities to the delinquent.The learned counsel further submitted that since the enquiry officeroriginally appointed had not acted according to the rules, thecomplainant had filed W.P.No.10157 of 2000 and even sought for theimplementation of the directions of the Apex Court in VISHAKA ANDOTHERS vs. STATE OF RAJASTHAN AND OTHERS (AIR 1997 SC 3011) whereinthe Apex Court considering the fundamental rights of working womenunder Articles 14,19 and 21 of the Constitution, framed certainguidelines and norms for protection and enforcement of these rightsof the women at their workplaces, and prayed to allow W.P.No.10157 of2000 and dismiss W.P.No.29024 of 2003.10. Before dealing with the questions involved in thesematters, it must be said that though the complainant challenged theenquiry proceedings by filing W.P.No.10157 of 2000, casting remarkson the then Enquiry Officer, who was also impleaded as thirdrespondent, since the said individual has retired from the service, aDivision Bench of this Court by its order dated 5.11.2001, made inW.M.P.Nos.14658 and 14659 of 2000 has issued a direction to proceedwith the disciplinary enquiry by affording opportunity to both sidesby another Enquiry Officer. Consequent thereupon, the enquiry wasproceeded with, which culminated in the punishment of the delinquentofficer. Therefore, that part of the prayer in W.P.No.10157 of 2000becomes infructuous.11. The other part of the prayer of the complainant inW.P.No.10157 of 2000, to direct the 1st respondent/Registrar toimplement the directions of the Apex Court in Vishaka case (citedsupra), is in the nature of advancing the cause of justice and inthe larger interest of society. But, since during the pendency ofthe said writ petition, Complaints Committees have been constitutedby the High Court to look into the complaints made against theofficers and Staff of the High Court and the Judicial Officers andthe Judicial Ministerial Staff of the Subordinate Judiciary, byR.O.C.No.5000-A/2001-B2, dated 15.5.2001, nominating one Chairpersonand three Members for each Committee, thus answering such prayer ofthe petitioner and complying with the directions of the Apex Court inVishaka case, we hold that the writ petition filed by the complainantin W.P.No.10154 of 2000 in its entirety became infructuous. Hence,it is liable to be dismissed as such. https://hcservices.ecourts.gov.in/hcservices/

12. However, since the said proceedings of the Registrar doesnot contain names of the Chairperson or the Members, but carries abracketed information that they would be nominated as and whennecessary, we feel it appropriate to direct the Registrar General,High Court of Madras, to name Chairpersons and Members to suchCommittees, with no further loss of time, and circulate copies of thesame to all the Sections in the High Court and to all the SubordinateCourts, so that the aggrieved personnel can report to the respectiveCommittees to redress their grievances.13. During pendency of W.P.No.29024 of 2003, the complainantalso filed WPMP.No.17558 of 2006, praying to implead her as a partyto the said proceedings. Since she has been extensively heard on thepoints connected to and covered by W.P.No.29024 of 2003, as it beinga common hearing in the writ petition filed by the complainant andthe writ petition filed by the delinquent officer, we feel it notnecessary to implead her as a party in W.P.No.29024 of 2003.Accordingly, W.P.M.P.No.17558 of 2006 is dismissed.14. Thus settling these issues, now we shall proceed to dealwith the main matter in issue viz. the complaint lodged by thecomplainant, which ultimately culminated in imposing a punishment ofcompulsory retirement on the delinquent officer.15. The delinquent officer contended that since thepetitioner was originally appointed as Steno-Typist in the DistrictCourt, Vellore and since his lien over the post in the parentDepartment has not been severed, only the District Judge, Vellore iscompetent to initiate disciplinary action and to impose punishment.Though this plea was taken by the delinquent officer only at the timeof this writ petition and never raked up such an issue either beforethe Enquiry Officer or before the Appointing Authority, since thesame is in the nature of a legal question, we entertained the saidplea so as to be answered. On a perusal of the entire materialsplaced on record and the relevant provisions of law, we are not ableto appreciate the said contention of the delinquent officer for thereason that on his being appointed as P.A. to the Honourable Judgesin the High Court w.e.f. 27.1.1988, which is a permanent post,carrying a definite time-scale of pay and also enjoyed promotionsthereafter, including deputations, it cannot be said that his liencontinued in the Tamil Nadu Judicial Ministerial Service. 16. The delinquent officer further contended that since hewas deputed to the Tribunal constituted under the provisions of theCriminal Law Amendment Act, the competent authority to initiate https://hcservices.ecourts.gov.in/hcservices/ departmental proceedings, if any, is the Presiding Officer of theTribunal and the Madras High Court Service Rules will have no bearingon the Criminal Law Amendment Act Tribunal. For this purpose, herelied on G.O.Ms.No.111 Personnel and Administrative Reforms (FR.II)Department dated 2.5.1994 which deals with deputation of GovernmentServants to State Owned Corporations/Boards/Undertakings and toCooperative Institutions, Autonomous Bodies, Universities etc., whichhave no application to the case of the delinquent officer. Sinceadmittedly, he was appointed as P.A. to the Honourable Judges, whichwas a permanent post and carrying a definite pay scale and waspromoted thereafter also, as has already been stated supra, his liento the Tamil Nadu Judicial Ministerial Service was severed and hefalls within the disciplinary rules of the Madras High Court andtherefore, it cannot be said that the proceedings initiated by theHigh Court are void ab initio. Thus, rejecting the claim of thedelinquent officer, we shall now proceed to examine the charges,findings of the enquiry officer, which culminated in the order ofcompulsory retirement of the delinquent officer.17. The crux of the complaint made against the delinquentofficer is that by using his official position, he solicited sexualfavours from the complainant passing on written slips and disturbedher during midnights by making telephone calls to her residence andthereby outraged her modesty and caused mental torture and agony toher. In short, the complaint against the delinquent was "sexualharassment at the place of work".18. It is the case of the complainant that the delinquent-officer, taking advantage of his "superior" position in the HighCourt, the work atmosphere and the loan availed by her from thedelinquent to tide over the urgent financial crisis, started makingtacit expressions and gestures to gain sexual favours from her andforced her to surrender to his sexual desires. The complainantalleged that the delinquent openly stated to her that he very muchneeded her company to quench his sexual thirst since his wife,because of her health condition, was unfit for cohabitation. It wasfurther alleged that the delinquent, in pursuit of his attempts,passed on several slips in his handwriting to the complainantexpressing his sexual desire. It is on the basis of two such slips,containing certain expressions/lyrics written in the handwriting ofthe delinquent and alleged to be passed on by him to the complainant,the complaint had been filed. It was further alleged that thedelinquent disturbed the complainant at odd hours by making frequenttelephone calls to her residence and later threatened her with thehelp of the Police to withdraw the complaint made against him. https://hcservices.ecourts.gov.in/hcservices/

19. The delinquent-officer while admitting that the writingsfound on the two slips in question were written by him, denied theallegation that such writings were intended towards the complainantfor getting sexual favours and submitted that he never passed on anyslips containing any expression to the complainant. His consistentdefence was that the slips in question were part of his preparationfor submitting the dissertation on the topic "Sexual Harassment andAbuse of Girl Child Worker" for his M.L. Degree course. According tothe delinquent, since he demanded repayment of the money lent by hiswife to the complainant, the complainant, to wreak vengeance againsthim, had stealthily removed those slips from his office-room and usedthe same as the basis for her complaint. In making the complaint andpressing the same vigourously, she was instigated and encouraged by agroup of employees, who could not digest the accelerated promotionsearned by him.20. The enquiry officer framed five points for determinationon the basis of the two charges framed against the delinquent andafter giving findings on the five points, ultimately held that thecharges framed against the delinquent have been proved. A copy ofthe enquiry officer's findings was furnished to the delinquent and hewas called upon to submit his representation, if any, on the saidfindings. The delinquent was also given a personal hearing beforethe appointing authority. The appointing authority, while rejectingthe further representation of the delinquent, accepted the findingsof the enquiry officer and ordered to impose the punishment ofcompulsory retirement from service on the delinquent. The period ofsuspension undergone by the delinquent was ordered to be treated as"not on duty" for all purposes. 21. Learned senior counsel for the petitioner-delinquentassailed the findings of the enquiry officer on the ground that theenquiry officer failed to appreciate the evidence in its properperspective. It was argued that the enquiry officer failed to takeinto consideration the vast discrepancies in the evidence of thecomplainant and that the complainant had improved her complaint madebefore the Registrar General which goes to show that she wasinstigated and encouraged by other staff who bore ill-will againstthe delinquent because of his quick and successive promotions. Itwas further argued that it is the complainant's case that thedelinquent started misbehaving with her soon after her deputation,i.e. from December, 1998, and if that were to be true, it is verystrange and unbelievable that she ventured to borrow money from thedelinquent, ignoring such sexual harassment. This only goes to showthat the alleged sexual harassment never took place. The allegedcomplaint of "sexual harassment" was made only with a view to get https://hcservices.ecourts.gov.in/hcservices/ away with the repayment of the amount borrowed by the complainant. 22. Insofar as the two slips in question are concerned,learned senior counsel argued that the enquiry officer had failed toappreciate the fact that such slips were prepared by the delinquentfor the purpose of the preparation of the dissertation for M.L.Degree course. Further, it was argued that at no point of time, thedelinquent had handed over any slips expressing his sexual desire.The complainant herself said that the delinquent had passed onseveral slips with obscene expressions and that she had destroyed allexcept the said two slips, which establishes clearly the attitude ofthe complainant to wreck vengeance against the delinquent. Further,there was no identity of the author of those slips, nor was thereany indication that the message therein was directed towards thecomplainant. The learned senior counsel argued that the complainantstealthily removed the slips which were kept in the office-room ofthe delinquent and used the same against the delinquent. Thedelinquent is leading a happy married life and there was no necessityfor him to solicit sexual favours from anyone much less thecomplainant. 23. The learned counsel for the complainant submitted thatwhen the delinquent officer has not made any complaint against theconduct of enquiry, like procedural irregularity or lack ofopportunity, this Court, sitting under Article 226 of theConstitution of India, cannot act like an appellate Court to re-appreciate the evidence. The learned counsel for the complainantrelied on a judgment of the Apex Court in APPAREL EXPORT PROMOTIONCOUNCIL vs. A.K.CHOPRA [(1999) 1 SCC 759], wherein it has been held:"Regarding the nature of approach that courts shouldtake while dealing with cases of sexual harassment atthe place of work of female employees, it is to borne inmind that sexual harassment is a form of sexdiscrimination projected through unwelcome sexualadvances, request for sexual favours and other verbal orphysical conduct with sexual overtones, whether directlyor by implication, particularly when submission to orrejection of such a conduct by the female employee wascapable of being used for effecting the employment ofthe female employee and unreasonably interfering withher work performance and had the effect of creating anintimidating or hostile working environment for her.Any action or gesture, whether directly or byimplication, aims at or has the tendency to outrage themodesty of a female employee, must fall under thegeneral concept of the definition of sexual harassment. https://hcservices.ecourts.gov.in/hcservices/ In a case involving charge of sexual harassment orattempt to sexually molest, the courts are required toexamine the broader probabilities of a case and not getswayed by insignificant discrepancies or narrowtechnicalities or the dictionary meaning of theexpression "molestation“. They must examine the entirematerial to determine the genuineness of the complaint.The statement of the victim must be appreciated in thebackground of the entire case. Where the evidence ofthe victim inspires confidence, as is the position inthe instant case, the courts are obliged to rely on it.Such cases are required to be dealt with greatsensitivity. Sympathy in such cases in favour of thedelinquent superior officer is wholly misplaced andmercy has no relevance.“It has also been held therein:"Findings of disciplinary proceedings should not betreated as one of criminal trial. Courts should examinethe broader probabilities of the case and not get swayedby insignificant discrepancies or narrow technicalities.They must examine the entire material to determine thegenuineness of the complaint"24. There is no quarrel regarding the proposition laid downby the Apex Court. In this context, it is to be mentioned that asagainst the impugned order passed by the Appointing Authority in thiscase, no appeal remedy is available to the delinquent officer and theonly remedy available for him is to invoke the jurisdiction of thisCourt under Article 226 of the Constitution. Further more, inMATHURA PRASAD vs. UNION OF INDIA [(2007) 1 SCC 437, considering theentire case law on the subject of judicial review, the Apex Court hascategorically and in no uncertain terms has ruled:"When an employee, by reason of an alleged act ofmisconduct, is sought to be deprived of his livelihood,the procedures laid down under the sub-rules arerequired to be strictly followed. A judicial reviewwould lie even if there is an error of law apparent onthe face of the record. If statutory authority uses itspower in a manner not provided for in the statute orpasses an order without application of mind, judicialreview would be maintainable. Even an error of fact forsufficient reasons may attract the principles ofjudicial review."25. True, sexual harassment, in any form, at workplace mustbe viewed seriously and culprits should not be allowed to escape fromthe clutches of law since, to narrate in the words of Dr.Justice https://hcservices.ecourts.gov.in/hcservices/ A.S.Anand, former Chief Justice of India, 'it humiliates andfrustrates a victim of crime when the offender goes unpunished or islet off with a relatively minor punishment as the present system paysno attention to his injured feelings. Imposition of appropriatepunishment on the criminal is the response of the courts to thesociety's cry for justice.' 26. But, at the same time, it should be kept in mind that acharge of this nature is very easy to make and is very difficult torebut. When a plea is taken of false implication for extraneousreasons, Courts have a duty to make deeper scrutiny of the evidenceand decide the acceptability or otherwise of the accusations. Everycare has to be taken to separate chaff from the grain. The veracityand genuineness of the complaint should be scrutinised to prevent anymisuse of such laudable laws enunciated for the upliftment of thesociety and for equal rights of people without gender discrimination,by anybody under the garb of 'sexual harassment', lest the justicerendering system would become a mockery.27. In PANDURANG SITARAM BHAGWAT vs. STATE OF MAHARASHTRA[(2005) 9 SCC 44 ], at page 47 the Apex Court has held: "The approach of the learned trial Judge as noticedsupra that ordinarily a lady would not put her characterat stake may not be wrong but cannot be applieduniversally. Each case has to be determined on thetouchstone of the factual matrix thereof. The lawreports are replete with decisions where charges underSections 376 and 354 IPC have been found to have beenfalsely advanced." 28. Keeping in mind the above propositions of law laid downby the Apex Court and further since, as has already been adverted tosupra that there is no appeal remedy to the delinquent officer asagainst the impugned order of compulsory retirement inflicted on himwith a stigma and the only remedy to him is under Article 226 of theConstitution, we are of the view that in such matters, the Courtshould be more vigilant in assessing the case so as to renderjustice, to its true meaning to uphold the majesty of justice andlaw.29. As could be seen from the complaint of the complainant,the delinquent officer is accused of issuing two slips to her, firstslip containing English writings as "I want to kiss on cheeks, chinand lips" and the second slip containing the Tamil scribblings as"Jd;gk; neh;ifapy; ahHpirj;J ,d;gk; nrh;f;f khl;lhah>", the Englishtranslation of which, as has been narrated by the Appointing https://hcservices.ecourts.gov.in/hcservices/ Authority, is "Can't you give me pleasure at times of crisis, byplaying music..."30. Admittedly, both these slips were in the handwriting ofthe delinquent officer, but not addressed to the complainant. Thecomplainant claims that they were handed over to her by thedelinquent officer, for which there is no evidence on record,expressing his illegal and immoral quench towards her. As againstthe said charge, a strong, cogent, consistent, probable and reliabledefence has been raised by the delinquent officer stating that as astudent preparing for M.L. Dissertation, he had collected variousmaterials as and when available from various journals and magazinesand the materials so collected were written in small slips of paperswith an intention to prepare a rough draft subsequently. Thematerials so collected in various bits of papers were kept in hisoffice table, which had no lock and key and the alleged slips ofpapers, alleged to have been given to the complainant, were amongmany bits of papers in which materials have been gathered by him fromvarious sources. When he was preparing his M.L. Dissertation, hefound some of the slips being either misplaced/lost and immediatelyhimself along with his colleagues in the Tribunal, including thecomplainant searched for the said materials. But, they could not betraced. Hence, he gathered the relevant materials once again andsubmitted his M.L. Dissertation titled "Child Labour-Exploitation-Preventive Measures and its study indepth". 31. The delinquent officer further submits that to emphasisethe difference between infatuation and true love, some lines from thepoem written by great Tamil poet "Bharathidasan" and a portion from anovel 'Payum Oli Nee Enakku' written by great novelist Janakiram werequoted in one slip from his memory. Further, to highlight theexploitation of women workers despite their non-acceptance for anyfavour/s, another quotation was written. His further case is thatthe complainant helped him in typing out his M.L.Dissertation, whichwas admitted by her in her evidence also, and only to avoid the loanof Rs.10,000/= advanced by his wife, to the complainant, she haspitted the slips, which she has stolen/had possession of against himat the instance of some jealous colleagues, who were unable tobear/digest his frequent promotions.32. A perusal of the entire materials placed on record wouldshow that the husband of the complainant by name Mr.GanapathySubramanian was an accused in C.C.No.2056 of 1996 on the file of theCourt of VII Metropolitan Magistrate, Madras for an offence underSection 138 of the Negotiable Instruments Act and to bail out herhusband from criminal prosecution, the complainant borrowed a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.10,000/= from the wife of the delinquent officer, by executing apromissory note dated 14.6.1999, for which D.W.1 was the witness,agreeing to repay the same within three months with interest at 24%p.a. which, according to the complainant, was repaid by her.According to the complainant, at the relevant time, the delinquentofficer was misbehaving with her. If there is truth in hercontention and complaint, the complainant should not have sought thehelp of the delinquent officer and received money from his wife. Noprudent man would seek the help of anybody, if there is genuinereason to believe that such a person is causing any kind ofharassment to him. When such a serious complaint of sexualharassment has been made by the complainant against the delinquentofficer, if it is really true, in the firm view of this Court, sheshould not have approached the delinquent officer, which raises astrong suspicion about the genuineness and veracity of her complaint,which was not erased by the complainant. This aspect also favoursthe strong and consistent defence raised by the delinquent officerthat only to avoid payment of the debt towards him, this falsecomplaint has been lodged by the complainant against him.33. The Appointing Authority also, in para No.11, hasobserved that the complainant ought not to have approached thedelinquent for a loan of Rs.10,000/= even if it was so urgent andnecessary to bail out her husband from criminal prosecution since shefelt that she was being sexually harassed by the delinquent and wasvexed with him and ought not to have attempted at all to borrow anymoney from him, but has proceeded on wrong footings to found thedelinquent guilty of the charges. 34. When such a strong and consistent defence was advanced onthe part of the delinquent employee, by examining D.W.1 also to provethe loan advanced by his wife to the complainant and the subsequentcompromise mooted by the complainant herself, but taking a 'U' turnon the ground it would tell upon her, further leading to some kind ofpunishment from the Registry for lodging such a complaint andwithdrawing it later, the Enquiry Officer proceeded only on the basisthat the writings on Exs.P2 and P.3 were admitted by the delinquent,forgetting the fact to which extent they were admitted. In thelight of the above factual matrix of the case on hand, we are unableto appreciate the argument advanced on the part of the complainantthat in all such cases of sexual harassment, the defence of thedelinquent officer would be that he advanced a loan to thecomplainant and only to avoid repayment of such loan amount, a falsecomplaint has been lodged by the complainant, since neither thefactum of borrowing an amount of Rs.10,000/= from the wife of thedelinquent officer nor the execution of the pronote was denied by the https://hcservices.ecourts.gov.in/hcservices/ complainant. Further, as has already been observed supra, throughthe evidence of D.W.1 it is clear that the complaint mooted acompromise, but has taken 'U' turn on the ground that it may lead toinitiation of disciplinary proceedings against her for lodging such acomplaint and withdrawing it later. Therefore, the argument advancedon the part of the complainant is rejected.35. When the slips does not contain anybody's name oraddress, much less the name of the complainant and when a strongcase has been put up on the part of the delinquent that they weremisused by the complainant, who assisted him in preparing his M.L.Dissertation, to avoid the loan amount, the Enquiry Officer, ought tohave considered the matter in depth in proper perspective. Thefailure on the part of the Enquiry Officer to appreciate the evidenceavailable on record in its proper perspective, led to miscarriage ofjustice. Though the standard of proof in departmental enquiryproceedings is not as that of in criminal proceedings and it issufficient to prove the preponderance of probability, since theEnquiry Officer failed to appreciate the entire probabilities of thecase from the proper perspective of the cases put up on either side,he has landed in an erroneous conclusion leading to miscarriage ofjustice, since even the Appointing Authority has taken the findingsof the Enquiry Officer as God's saying in spite of abundant materialavailable on record contra.36. The delinquent officer marked his Dissertation submittedon "Child Labour-Exploitation-Preventive Measures and Indepth Study"as Ex.D.14 before the Enquiry Officer, which fortifies his defencethat he intended the contents in those two slips for his dissertationsince Page Nos.12 and 13 of his Dissertation contains the contents ofExs.P.2 and P.3. The same is extracted hereunder:"A scene is also available. At factories/Offices/PrivateEstablishments, Officers/employers have this in mind, asadistic approach to tease the working women. When theworking woman is a new recruit, they do this in the garbof helping/giving the training to the work. When theyraise a voice or when they resist, they will fly off.Another kind of Officers/employees are also available.With nicety in their words, with utmost begging, chockedwith emotion they will beg with the woman folk saying:With permission, I want to kiss on cheeks, chins and lips.If agreeable, please give your hands, if not, excuseme....”"To get rid of the sexual harassment, among all the thingsthey should be understood to have the variation betweensexual harassment, true love and infatuation. This https://hcservices.ecourts.gov.in/hcservices/ student thinks that youngsters should read good magazines,epics like Ramayana, Mahabharata, Bharathiar songs, novelswritten by famous writers Kalki, Sivasankari 'Nandu',Indumathi's 'Tharaiyil Irangum Vimanangal', Janaki Raman's'Paviyum Oli Nee Yenakku' and recent one of “Adu OruNilakalam'. Cinemas also try to exhibit good films,avoiding cheep comedy etc.,..."37. While such is the factual position that the contents ofExs.P.2 and P.3 are the ingredients of Ex.D.14, a strange finding wasrecorded by the Enquiry Officer that since because the contents ofEx.P.2 and P.3 find a place in Ex.D14, it cannot be stated that theywere not intended to the complainant. The Appointing Authority, inPara No.9 of his order, found that 'as rightly pointed out by theEnquiry Officer, there is no link between the dissertation submittedby the delinquent and the plea made by him that they were notesprepared for the said purpose, as the dissertation was submittedduring August 1999 while the contents of Exs.P2 and P3 are of themonth of September/October 1999 during Dasara holidays'. In thelight of the above clinching evidence available on record, this Courtis unable to appreciate the findings of the Enquiry Officer, whichwere taken for granted by the Appointing Authority, leading tomiscarriage of justice.38. At this juncture, it is relevant to point out that ascould be seen from the Certificate issued by Mr.R.Viduthalai,Advocate, 101, New Law Chambers, High Court Madras, who was the guideof the delinquent officer for his Dissertation, the same was dated29.8.1999. But, the complaint of the complainant is dated 18.2.2000.When such is the factual position, that too in the absence of anydate or name of the addressee in Exs.P.2 and P.3, we are unable toappreciate the findings of the Enquiry Officer and the AppointingAuthority that Exs.P.2 and P.3 were intended only towards thecomplainant and they were handed over by the delinquent to thecomplainant during Dasara Holidays. 39. Furthermore, to the 'acknowledgements' annexed to hisDissertation, the delinquent expressed his sincere thanks, amongothers, to the complainant also, for their constant unstintedencouragement, support and valuable assistance during the course ofthe said research. Therefore, it cannot be said the delinquentofficer has fraudulently introduced such writings into hisDissertation only to escape from the allegations of the complainant. https://hcservices.ecourts.gov.in/hcservices/

40. The Enquiry Officer has not even bothered to look at thedefence evidence, which, as said above, is strong, cogent, consistentprobable and reliable in nature.41. The explanation offered on the part of the complainantfor delay in lodging the complaint that since she was a probationer,she feared to lodge the complaint, cannot also be appreciated sinceby the time she lodged the complaint on 18.2.2000 also, she was aprobationer. Further more, there is no restriction or prohibitionfor any probationer to lodge any such complaint. The otherexplanation that since the delinquent officer was her superior, hewould have impaired the chances of her probation being declared, ifshe venture to lodge such a complaint against him also cannot beaccepted, since, only the Appointing Authority is competent todeclare her probation and the delinquent officer or any other officerfor that matter has no role to play in such decisions of theAppointing Authority. 42. Regarding the other charge of phone calls made by thedelinquent officer during midnights to the complainant, thedelinquent officer has replied that under compelling circumstancesthat too on two or three occasions, he contacted her during daytimethat too during holidays requesting repayment of loan advanced byhis wife to the complainant and nothing more nothing less. Evenregarding the allegation of the complainant that the delinquentofficer had made telephone call to her from Delhi, wherehe had been on an official duty, a strong case has beenput up on the part of the delinquent officer that heinstructed her to hand over the computerized speech to the HonourableChief Justice before lunch. In this context, it is relevant tomention that the delinquent officer has produced materials beforethis Court in the form of typed set, to show that the thenHonourable Chief Justice used to give handwritten material fortyping. When such is the position, it is paining to note that thesaid defence put up by the delinquent officer was not even consideredby the Enquiry Officer and without any discussion, he observed onPoint No.2 as follows:"P.W.2 also corroborated the factum of calling P.W.1 bydelinquent from Delhi. From the narration of events, itis proved that the delinquent called P.W.1 at herresidence over phone on several occasions including acall from Delhi."The same reasoning would apply to the alleged phone calls made by thedelinquent officer to the P.A. Section, where the complainant used tosit. It is on record that there is no much work in the Tribunalwhere the delinquent officer and the complainant were deputed and https://hcservices.ecourts.gov.in/hcservices/ hence the complainant used to attend the Courts to take downdictations and she used to sit either in the Personal Secretary'sroom or in the P.A. Section. Therefore, it is but probable for thedelinquent officer to contact her wherever she is, to leave anyinstructions imparted to him by the Honourable Chief Justice. Thisaspect has not at all been considered by the Enquiry Officer and theAppointing Authority. Except the interested ipse dixit of thecomplainant and her husband, there is nothing on record tosubstantiate such a serious charge levelled against the delinquentofficer. 43. At this point, we feel it appropriate to record themotivated intention of the complainant. The complainant lodged hercomplaint on 18.2.2000, based on which an Official Memorandum wasissued to the delinquent officer on 1.3.2000, seeking for hisexplanation and charges were framed against him on 5.6.2000.Thereafter, on 20.6.2000, the complainant sent another complaint tothe Registrar General, High Court, wherein besides giving details inminute, she made allegations against the then Enquiry Officer, whowas a senior-most District Judge on other duty as Special Officer ofthe Vigilance Cell of the High Court, as if he intimidated her andthe entire examination by the Enquiry Officer was aimed at bullyingher and discrediting her character. The complainant narrated thequestions put to her by the then Enquiry Officer. From the saidquestions alleged to have been put by the Enquiry Officer, we areable to understand that the then Enquiry Officer wanted to apprisehimself fully of the matter, which were commented otherwise by thecomplainant, since she might have thought that her desired goalcannot be achieved. We are prompted to comment so because in thevery same complaint, she requested the Registrar General to suspendor atleast transfer the delinquent officer from the High Court, as ifotherwise the delinquent will continue to misuse his position as anOfficer of the High Court as if the Enquiry Officer was obliged tothe delinquent officer, and requested to stay the enquiry until aCommittee is constituted as per Visaka judgment of the Apex Court.As already stated supra, the delinquent officer, has no authority tointerfere in the enquiry proceedings, which were being conducted by asenior-most District Judge and there was no such complaint alsoeither from the earlier Enquiry Officer or the subsequent EnquiryOfficer. This fact would establish that the complainant is destinedto go to any extent, to achieve her desired goal. Further more, thesaid complaint of the complainant, as observed supra, is dated20.6.2000. The very next day i.e. on 21.6.2000, she filedW.P.No.10157 of 2000 before this Court, without even waiting for thereply from the Registrar General to her complaint dated 20.6.2000. https://hcservices.ecourts.gov.in/hcservices/

44. Another aspect this Court wants to point out is that asagainst the delinquent officer, the complainant lodged a criminalcomplaint in Cr.No.29 of 2001 before the B4 High Court Police for theoffences under Sections 294(b) and 506(1) IPC on 7.11.2001. When thesaid case was called by the VII Metropolitan Magistrate, G.T.,Chennai on 25.4.2005, she was not present and there is norepresentation also for the complainant. Therefore, the FIR wasclosed as further action dropped. Thereafter, no step was taken bythe complainant to pursue her criminal complaint, probably becauseshe has already achieved her desired goal of throwing the delinquentofficer from his official position in the departmental proceedingsinitiated at her initiation on 10.10.2002 itself, on which date theorder of compulsory retirement was served on the delinquent officer.The complainant lodged the said criminal complaint on 7.11.2001during the pendency of the enquiry proceedings, i.e. after 21 monthsof her complaint to the Registrar General (which was given by her on8.2.2000), which, in our view, is only to create documentaryevidence in her favour so as to be used in the departmentalproceedings which shows her motivated intention of achieving herillegal goal of throwing the delinquent officer from his officialposition. As has already been observed supra, neither the EnquiryOfficer nor the Appointing Authority appreciated the materials onrecord in their proper perspective, resulting in miscarriage ofjustice.45. The entire reading of the Enquiry Officer's Reportdepicts his pre-concluded mind and trying to supply reasons tosubstantiate the same, which was approved by the AppointingAuthority. The entire findings of the Enquiry Officer, which werecarried on by the Appointing Authority went on hypothesis and withoutappreciating the materials placed on record in their properperspective, leading to miscarriage of justice.46. In VISHAKA vs. STATE OF RAJASTHAN (1997) 6 SCC 241, theApex Court has prescribed the guidelines and norms to ensure theprevention of sexual harassment of women and in clause (2) it hasbeen prescribed as follows: “For this purpose, sexual harassment includes suchunwelcome sexually determined behaviour (whether directlyor by implication) as: ( a ) physical contact and advances; ( b ) a demand or request for sexual favours; ( c ) sexually-coloured remarks; ( d ) showing pornography; https://hcservices.ecourts.gov.in/hcservices/ ( e ) any other unwelcome physical, verbal or non-verbalconduct of sexual nature. Where any of these acts is committed in circumstanceswhereunder the victim of such conduct has a reasonableapprehension that in relation to the victim's employment orwork whether she is drawing salary, or honorarium orvoluntary, whether in government, public or privateenterprise such conduct can be humiliating and mayconstitute a health and safety problem. It isdiscriminatory for instance when the woman has reasonablegrounds to believe that her objection would disadvantageher in connection with her employment or work includingrecruiting or promotion or when it creates a hostile workenvironment. Adverse consequences might be visited if thevictim does not consent to the conduct in question orraises any objection thereto.” 47. From the above discussion, we are satisfied that theallegations levelled against the delinquent officer by thecomplainant in her complaint do not attract any one of the aboveconditions prescribed by the Apex Court in the above Judgment, topunish the delinquent officer such as (a) physical contact andadvances; (b) a demand or request for sexual favours; (c) sexually-coloured remarks; (d) showing pornography; (e) any other unwelcomephysical, verbal or non-verbal conduct of sexual nature. There isno physical contact and advances made by the delinquent officertowards the complainant and the writings on Exs.P.2 and P.3 cannotbe considered as a demand or request for sexual favours as the saidmaterial is meant only for inclusion in the Dissertation for his M.L.We find that there are no sexually coloured remarks made against thecomplainant by the delinquent officer or showing any pornography andany other unwelcome physical, verbal or non-verbal conduct of sexualnature. Therefore, initiation of disciplinary proceedings againstthe complainant is not at all warranted since no fundamental right ofthe complainant or her right to live with gender equality enshrinedunder Articles 14,15,19(1)(g) and 21 of the Constitution is violated.Therefore, we hold, as rightly contended on behalf of the delinquentofficer, that the complainant misused Exs.P.2 and P.3, which were inher possession, with ulterior motive to avoid repayment of the loanobtained by her from the wife of the delinquent officer on apromissory note executed by her on 14.6.1999 to get relief to herhusband from the criminal case in C.C.No.2056 of 1996 on the file ofthe Court of VII Metropolitan Magistrate, Madras for the offence https://hcservices.ecourts.gov.in/hcservices/ under Section 138 of the Negotiable Instruments Act. Therefore, wehold that the framing of charges, conduct of enquiry and passing theimpugned order of compulsory retirement on the delinquent officer areall illegal and liable to be quashed. Accordingly, we order thatthe delinquent officer is entitled to be reinstated into service withall attendant benefits including continuity of service and backwages.Therefore, W.P.No.29024 of 2003 filed by the delinquent officer isentitled to be allowed.In the result, as has already been observed supra,W.P.No.10157 of 2000 filed by the complainant is dismissed asinfructuous and W.P.No.29024 of 2003 filed by the delinquent officeris allowed. The delinquent officer is ordered to be reinstated intoservice with all attendant benefits, with continuity of service andbackwages. If, by this time, the delinquent officer attained theage of superannuation, he shall be treated as retired in usual courseafter attaining the age of superannuation. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarJai/RaoToThe Registrar General,High Court of Judicature at MadrasChennai-600 1041 cc to ms.R. Vaigai,Advocate, sr. 361931 cc to Mr.K. Balachandran, Advocate, Sr. 36198W.P.Nos. 10157/2000 & 29024/2003 and WPMP.17558 of 2006JRG (CO)kk 21/6