PoSH ESP Case Law 2 Vishakha Guidelines

Delhi High Court U.S. Verma, Principal, D.P.S. ... vs National Commission For Women & ... on 12 October, 2009 Author: S.Ravindra Bhat * IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on :

06.04.2009

Pronounced on :

12.10.2009

+ WP (C) No.1730/2001

U.S. Verma, Principal, D.P.S. Faridabad ............ Petitioner

Through : Mr. Raju Ramachandran, Sr. Advocate with Mr. Reetesh Singh and Mr. R.P. Singh, Advocates

WP(C) No.1733/2001

Delhi Public School Society ............ Petitioner

Through : Mr. Rakesh K. Khanna, Sr. Advocate with Mr. Puneet

Mittal

and Mr. Surya Kant, Advocates

Versus

National Commission for Women & Ors. ......... Respondents

Through : Ms. Malvika Rajkotia, Advocate

WP(C) No.1731/2001

Jayshri Kannan and Anr. .......... Petitioners

Through : Ms. Malvika Rajkotia, Advocate

Versus

U.S. Verma & Ors. .......... Respondents

Through : Mr. Raju Ramachandran, Sr. Advocate with Mr.Reetesh Singh and Mr. R.P. Singh, Advocates for Respondent No.1. Through : Mr. Rakesh K. Khanna, Sr. Advocate with Mr.

Puneet

Mittal and Mr. Surya Kant, Advocates for DPS Society.

CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1. Whether the Reporters of local papers Yes may be allowed to see the judgment?

2. To be referred to Reporter or not? Yes

WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 1 3. Whether the judgment should be Yes reported in the Digest?

HON'BLE MR. JUSITCE S.RAVINDRA BHAT

*

1. In W.P. No.1730/2001, two inquiry reports dated 29.06.1999 regarding the alleged sexual harassment at Delhi Public School, Faridabad (hereafter the "School") issued by the National Commission for Women (first respondent, hereafter "the Commission") are impugned. The petitioner is hereafter referred to as "Verma". One report, as received by him, is alleged to be of a three-member committee and the other, of a four-member committee, received by the DPS Society; both these committees were constituted on 25.05.1999. It is stated that both committees were constituted to look into the same allegations made by the common complainants (respondents no. 3 to 6, who are petitioners in W.P.-1731/2001 and referred to as "the teachers") in complaints dated 09.04.1999. Both the reports are similar in content and their conclusions are based on evaluation of common facts and statements of the same witnesses. The complaints were made before the Chairman of the Delhi Public School Society (hereafter DPS Society), by the teachers. The DPS Society has filed W.P. (C) No.1733/2001, and concerned allegations of sexual harassment by Verma, of the three complainants. 2. Verma alleges that the Commission could not have constituted two separate committees to investigate into the same matter on same date. It is pointed out that the four-member committee comprised of all the three members of the other committee, which was the three- member committee. The fourth member of the committee never participated in the proceedings. It was alleged that the no such committee was ever constituted and the reports were a sham, by pointing out that the petitioner was never informed about constitution of any committees. It is also stated that out of the four WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 2 complaints only one, dated 17.11.1998, was made to the Commission and the rest were addressed to the Chairman DPS Society. Verma states that on the back of these complaints contained an endorsement "delivered by hand, received by me on 17.05.1999" sd/- Shayeeda S. Hameed. Further, the two reports talk of the press conference held on 13.05.1999 held by the Commission along with the complainants. Thus, the Commission is put in the position of the complainants and as such it be could not be allowed to be a judge in its own cause. The approach of the Commission is challenged as being contrary to principles of natural justice and in transgression of all norms of exercise of legal authority since neither a copy of the complaints nor the material on which the investigation was initiated were ever supplied to Verma, despite repeated requests. His rights were prejudiced, as a notice of contents of the charges was never supplied to him; he was also never called upon to respond to any of the complaints; only summons were issued to him on 28.05.1999 to attend and depose before the Commission, without disclosing to him in what capacity and for what purpose was he had to report. The summons were not issued by any of the two committees formed for investigating the matter.

3. It is stated that the committees summoned none of the witnesses rather it was the Commission that summoned the witnesses. Two witnesses' statements, i.e. Dr. Kamla Chowdhary and Justice (Retd.) N.N. Goswamy, Chairman, DPS Society were recorded on 25.05.1999 and summons were issued to them on 21.05.2009, four days prior to the constitution of the two committees. In the absence of any committee (on the date of issuing summons) the witnesses could not have deposed before such committees. It is also pointed out that no proceeding of the Commission ever took place. Verma states that only after repeated requests for providing a copy of the complaints and the documents, was he merely allowed to see and note down the contents of the complaints on 11.06.1999, and except for complaint dated 17.11.1998 WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 3 no other complaint was made to the Commission. The Commission by neither putting Verma to notice nor supplying him a copy of the complaints and other documents violated principles of natural justice. The two reports nowhere discuss the dates on which the complaints were received, by Commission. Verma was neither given any notice nor allowed to participate in the day-to-day proceedings before the committees, and he was not permitted to cross- examine the witness or engage the services of an advocate. The complainants were allowed assistance by lawyers and NGOs. Further the citation of the instances of sexual harassments, innuendo, assault, demand for sexual favour and verbal abuses made against him are devoid of any particulars, vague and unspecific. The reports do not point out instances relating to which complainants aired their grievances. 4. Verma also challenges report of Dr. Kamla Chowdhary dated 17.02.1999, and other instances of sexual harassment, which were subsequently brought to the Commission's notice. He states that the four complaints shown to him were the complaints of Shyista Jabeen Raza, Jayshree Kannan and Shrini Kaul, dated 09.04.1999 and the complaint of Mrs. Anju Gupta dated 22.04.1999. Therefore it was not possible to give a report on the complaints two months before their presentation. He questions the veracity of the report of 17.02.1999 as it was without informing him of the charges against him or providing him a copy of the complaint and requiring him to appear. The authenticity of Dr. Chowdhary's report dated 17.02.1999 is also doubted as it does not mention of recording of statements of the witnesses, and, being conjectural, is based on no evidence. Verma contends that Dr. Chowdhary, in her letter dated 05.04.1999, admitted that no evidence was recorded by her before writing her report. 5. The finding in Ms. Choudhry's report regarding the DPS Society having not taken any action despite request by the Commission and letter dated 09.05.1999 of IFSHA / WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 4 SHAKSHI (NGOs) is alleged as incorrect. It is stated that a five member "complaints committee" was constituted by the DPS Society on 20.04.1999, and the fact was revealed to the Commission. Verma denies refusing to accept summons as stated in the impugned reports. He also challenges the Commission's action in examining the Vice Principal of DPS Faridabad, Mrs. Renu Mittal; she proceeded on leave on 08.05.1997 and rejoined on 26.08.1997 and the very next day she again proceeded on leave. Thereafter she got herself transferred to DPS, R.K. Puram and remained there ever since. Thus, she could possibly have nothing to depose. The complaints pertain to the period that she was not at DPS, Faridabad. The conduct of the Commission in not letting the teaching staff depose in Verma's favour and when had also written letters to the Commission for this purpose, is also questioned. The finding in the impugned reports that any threats to complainants, intimidation or pressure to withdraw the complaints were brought to the notice of the school authorities is challenged.

6. It is pointed out that during a Press Conference on 13.05.1999 and at the time of lodging the FIR there were only three of the four complainants, the fourth complainant (fifth respondent) refused to respond to the summons issued by the Commission. In such circumstances it is hard to comprehend why the impugned reports were made in respect of four complainants. Verma alleges that a reading of the impugned reports shows that no witness supported the allegations or corroborated the complainants' version. It is submitted that the Faridabad Police, (including senior officials of the rank of DSP and a lady inspector) investigated the complaints and concluded in the report dated 22.06.1999 that they were baseless, recommending cancellation of the FIR registered against Verma. Further the impugned reports are challenged as beyond the jurisdiction of the committees in as much as they recommend reinstatement of the complainant teachers and staff members with full back- wages and continuity of service, and termination of the Principal. In terms of Section 10 of the National Commission for WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 5 Women Act (the Act) the Commission merely has powers to investigate the matter. It is alleged that the conduct of the complainants, Respondents 2 to 6 was malafide and motivated in an attempt to lower the image of the school and Verma, its Principal. On the basis of the above, quashing of the two impugned reports dated 29.06.1999 is sought. 7. The teachers and the Commission deny Verma's allegations, and urge that the report of the Sharda Nayak Committee (set up by the society hereafter called "the Vishakha Committee" or the "Sharda Nayak Committee") cannot be accepted. They argue that the Commission's report, written after following principles of natural justice, and recording depositions on oath, indicts Verma, and should be accepted. Their position is similar to what is taken by them in their writ petition, and would be discussed in detail, later in the judgment. 8. The DPS Society is aggrieved by the report of the National Commission. It claims to be an institution of repute, which has established several prominent and well known schools throughout the country. It contends that its Faridabad School was established in 1995 and that Verma was a leading spirit and had acted as its Principal. That school had 2600 students at the time of filing of the writ petition. It states that Verma had 38 years' teaching experience with unblemished career and was responsible for building up the Faridabad school. 9. The DPS Society alleges that the teachers' complaints are devoid of credence as all of them apparently colluded or joined hands to vilify Mr. Verma and the DPS Society. The DPS Society alleges that - Ms. Shyista Jabeen Raza (hereafter referred to as Ms. Raza) worked between 1.7.1997 and 7.4.1998 and was terminated due to inadequacies WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 6 in her work. The society relies upon memos issued to her on 20.08.1997, 22.09.1997 and 14.10.1997. It is alleged that Ms. Raza celebrated her birthday and accepted gifts from the students; the DPS Society also alleged that complaints were made against her from the Supervisor on two occasions. It is alleged that upon being served with the termination letter, Ms. Raza expressed the desire to resign; the affidavit of Ms. V. Lakshmi dated 28.07.1999 to that effect is relied upon. It is also alleged that after the termination on 9.4.1998 Ms. Raza sent a letter stating that she had suffered miscarriage on 7.4.1998 and was advised to rest for 45 days, she sought medical leave w.e.f. 13.04.1998. It is stated that on 9.4.1998 she met the then President of the Society Mr.Salmaan Khursheed and later wrote a letter on 30.04.1998 to the Member (Education) of the DPS Society. It is claimed that in that letter she leveled allegations of vindictiveness against the DPS Society. The DPS Society alludes to a review sought by Ms. Raza on The DPS Society's writ petition

27.5.1998 regarding the termination of her services, which was rejected by the Society on 23.06.1998. In these circumstances, it is alleged that Ms. Raza joined DAV School, Ballabhgarh on 6.7.1998. The DPS Society alleges that on 11.10.1998 Ms. Raza wrote a letter to the then President of the Society where she admitted representing on 30.04.1998 and reiterating the allegations made. 10. As regards the second teacher, Ms. Jayshree Kannan (hereafter referred to as "Ms. Kannan"), it is alleged that she was appointed as TGT w.e.f. 1.7.1995 on probation for a year and that she applied for the post of PGT in 1998. The DPS Society contends that there were discrepancies in the work experience claimed by her. It is contended that during her employment, on 2.9.1996, Ms.Kannan by a letter requested to be relieved of her duties, as she needed to devote more time at home. The Society also contends that she worked between 1996-1998 till applying for the post of PGT and never asked for being relieved. It also alleged that Ms. Kannan was careless and lost two answer scripts, of mid semester exams of a class Tenth student. It is alleged that WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 7 while giving her explanation she never mentioned about any harassment. The Society alleges that on 12.10.1998, the Secretary of the Principal of the Faridabad School noticed variation in Ms.Kannan's experience and credentials and submitted a note, which led to her being called by the Principal and discrepancies being pointed out. This ultimately resulted in her stopping to report to the school w.e.f. 12.10.1998 when she also resigned. Later she wrote on 15.10.1998 stating her desire to withdraw the resignation letter. It is contended that for the first time on 20.10.1998 Ms.Kannan wrote a detailed letter to the Chairman of the DPS Society complaining against Verma leveling allegations without any allegation of sexual harassment. The DPS Society refers to further correspondence between her and the school whereby acrimonious letters were written when she was asked to report on her absence; it is alleged that in a later letter dated 2.12.1998, though several allegations were made, nothing about the sexual harassment by Verma was ever referred to. 11. About Ms. Anju Gupta, the third teacher, the Society alleges that she was appointed as TGT on 1.7.1995 to teach Physics. The society refers to several complaints received about her performance and her eventual resignation on 23.07.1996. The Society states that though the resignation was submitted, it was not forwarded by the Principal for acceptance to the Society; however, Ms. Gupta's record was erratic and she sought 47 days' leave in 1998-1999. It is stated that eventually she resigned on 11.11.1998 on the basis of a medical certificate stating that she suffered from mitral wall prolapse syndrome. 12. The last staff member Ms. Shrini Kaul, the sixth respondent in the DPS Society's petition, joined the School on ad-hoc basis on 15.4.1998 and worked till 31.3.1999; as Receptionist. The DPS Society refers to some general allegations about Ms. Kaul's alleged misconduct and what it terms as her objectionable behaviour. It relies upon the WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 8 complaint of a parent and states that Ms. Kaul used to travel in private cars after school hours. The Society alleges that the Principal of the School, on 4.12.1998, saw her boarding a Maruti car and confronted her next day, upon which she became furious, alleging that it was her personal matter. 13. The Society alleges having received a letter from Ms. Raza dated 1.12.1998 and its President, referring the matter to the Member (Education) who in turn placed it before the Chairman - Justice (Retd.) N.N. Goswami (hereafter "the Chairman"). He requested Ms. Kamla Choudhry to look into the matter and report to him. On 11.1.1999 Dr. Kamla Choudhry informed Verma that the DPS Society constituted a two-Member Committee

comprising herself and Ms. Sharda Nayak asking him to appear before that Committee on 14.1.1999. The DPS Society states that on 17.2.1999 Dr. Choudhry forwarded a report. The same is produced with the petition. It would be relevant at this stage to extract the said letter, which reads as follows: - "February 17, 1999 Justice N.N. Goswamy, DPS Society Flat No.26 & 27, F-Block DPS Staff Chambers East of Kailash New Delhi - 110 065 Dear Justice Goswamy: You have referred to me two cases of alleged sexual harassment from teachers of DPS, Faridabad, against Mr. U.S. Verma, Principal of the School. The two files refer to the cases of - I have interviewed Principal Verma, as well as Mrs. Raza and Jayshri Kannan. In addition I have interviewed 4 others who have left the school WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 9 alleging in two cases, sexual harassment, and in other two cases "harassment" and unbecoming behavior of the Principal. I have gone through the files and listened to the Principal and the six aggrieved persons - most of whom have left service. After the long and painful interviews I have no doubt in my mind that sexual harassment and blatant outrage of women's modesty has taken place in at least 3 cases and plain harassment in two cases. The wealth of detail in the women's descriptions of the events, settings, Principal Verma's conversations and actions conveyed complete conviction, a sense of authenticity that was enhanced by the evident pain which accompanied the revelations. Several of them alleged that Principal Verma was able to get 'signed papers' supporting his version of any event he chose to highlight from some people who worked for the school. Because of fear and hope of favors, they did what he asked them to do in terms of helping to fabricate the documents he needed for harassment. Independently, some of the women who tried to stand up to him, mentioned that Principal Verma said nothing could happen to him since - in his words - "the President is in my right pocket, and the Chairman in my left pocket". These very words were quoted independently by 4 of the interviewees. Attempts at 'physical contact' was mentioned by 3 persons. The violation of 'decency' was alleged by all. The rejection of Principal Verma's sexual advances was used for issuing notices alleging that work was not being properly carried out. The statement of Chief Justice A.S. Anand of the Supreme Court seems to describe the situation of the interviewees well. Chief Justice Anand said that "sexual harassment is a form of discrimination projected through unwelcome sexual advances, the request of sexual favors and other verbal and physical conduct with sexual overtures, either directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance". Further, he stated "the behavior of the accused did not cease to be outrageous for want of an actual assault or WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 10 touch by the superior officer". Principal Verma's behavior seems to have gone even further than the criteria laid by the Supreme Court. (i) Mrs. Sayishta Jabeen Raza (ii) Jayshri Kannan.

The evidence of the 6 women interviewed inspired confidence. And although I believe that further investigation is not necessary, if however, this investigation has to be pursued further

then in order to have a fearless probe the right conditions by speaking fearlessly will have to be assured so that nepotism does not subvert a free and fair probe.

Given the contemporary sensitivity of the issue of sexual harassment in our public life, the possibility that the media already has a scent of these happenings, I believe the Chairman needs to take strong and urgent action so that when this Pandora Box does open - as is quite possible - there is no room for an impression to be created that the DPS Society and its offices bearers were tolerating such reprehensible behavior.

Best wishes, Yours sincerely Sd/-

(Kamla Chowdhry) Vice-President : DPS"

14. Apparently, in a subsequent meeting, senior Members of the Working Committee of the Society discussed the report during which Dr. Kamla Choudhry stressed about the need for confidentiality. The DPS Society refers to a letter written by Dr. Kamla Choudhry on 5.4.1999 stating as follows:- "You mentioned in the meeting that in the files referred to me of Mrs. Sayisha Jabeen Raza, and of Jayshri Kannan, no mention of sexual harassment has been made. I agreed that in the written files of these two teachers, accusations of sexual harassment have not been made. IT was only during the interviews with these two teachers and others I invited that considerable data emerged which led me to the conclusion that a serious problem exists in DPS Faridabad and that the Society needs to take urgent concrete steps in handling it. WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 11 In the meeting on April 1 you had asked me to find out if the women who allege sexual harassment will write to you, giving details of such harassment. The teachers and other employees who alleged sexual harassment say that they have already given details of such harassment to The Society via the Vice- President. They were reluctant to put it down on papers fearing that the Principal with his power base in Faridabad might harm them further. However, if the Society wishes written notes (even after my investigation!) three of the interviewees were ready to do so and will be sending it o to you for further action. I assured them that you were keen on taking appropriate action and will be protected. I would like to emphasise again that it is important to take urgent action. The media has already a scent of these happenings and before this Pandora's box opens publicly we should be seen to be doing the right thing at the right time. I also hope that you are considering the guide-lines as given by the Court for appointing a Complaints Committee for handling investigations of sexual harassment." The above letter was written to the Chairman of the DPS Society, which says that immediately after the event, complaints were received by it, from Ms. Raza, Ms. Kannan and Ms. Kaul, on 17.04.1999, and that another complaint dated 22.4.1999 was received from Ms. Anju Gupta. The DPS Society alleges that these complaints were after thoughts and were concocted. It is alleged that the complainants and the National Commission, with an NGO held a press conference on 13.5.1999 leveling reckless allegations of sexual harassment in DPS, Faridabad. The DPS Society states that 105 teaching and non-teaching staff of the DPS, Faridabad in a meeting, resolved that the charges leveled against Verma were baseless; it refers to a Resolution forwarded to the Society on 19.5.1999. The Society states that in the meanwhile it had set up the Sharda Nayak Committee, which requested the complainants to

attend its hearings. On 17.5.1999, two of the complainants - Ms. Raza and Ms. Kannan declined to appear before the Committee by writing letters; Ms. Kaul informed the Committee she had some prior engagements and was unable to attend the meeting.

WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 12

15. The DPS Society submits that the National Commission preceded post-haste to lodge a complaint with the police authorities and also went ahead with own proceedings through two Committees. It also alludes to hearing dated 17.6.1999 and 21.6.1999 before the Sharda Nayak Committee when the complainants did not appear and the final date was fixed on 29.6.1999. It is contended that by then, the witnesses in support of Mr. Verma had been examined; the complainants appeared but did not depose and left the premises, which ultimately led to closure of the Society's Committee proceedings. It is contended that the same day, i.e. 29.6.1999, the National Commission, without providing any opportunity to the DPS held a press conference and released its reports holding Verma guilty of the charges of sexual harassment. Later on 2.7.1999, the DPS Society's complaint committee submitted an enquiry report, which after extensively considering all the materials concluded that there was no substance in the teachers' complaints. The Society alleges that the police report of the police dated 22.6.1999 was also received by it; that along with the two reports of the National Commission a report of the DPS Committee dated 2.7.1999 was made available to its General Body on 12.8.1999. After due deliberations and consideration of the matter, Society accepted the report and rejected the two reports of the National Commission. The Managing Committee of DPS Faridabad also followed suit on 16.8.1999. The Society also refers to an order, dated 28.10.1999 by the Magistrate, who accepted the closure of the complaints and rejected the Teachers' objections. 16. Besides joining Mr. Verma's contentions about the lack of jurisdiction of the National Commission and the proceedings enquiring into allegations leveled by the Teachers as was done, it is contended that provision of the Act particularly Section-10 do not permit any adjudicatory role, to the Commission. Relying on the Act, both Verma and the Society submit that the National Commission is only a consultative and advisory WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 13 body, clothed with investigative powers and its recommendations are not binding. The learned Sr. counsel for the DPS Society urges that the pattern of the enactment is similar to legislation setting up other Commissions - as in the case of National Minorities Commission, National Commission for Backward Classes etc. Reliance was placed upon decisions reported as Bal Patil & Anr. V. Union of India and Ors . 2005 (6) SCC 690 and T.T. Anthony v. State of Kerala 2001 (6) SCC 181 to submit that such Commissions cannot assume adjudicatory functions. It is also contended that the questions of sexual harassment at the workplace, addressed to by the Supreme Court in Visakha v. State of Rajasthan 1997 (6) SCC 241 also did not contemplate any role of the Commission as has been assumed in the present case. Learned counsel argued that if the intention of the Supreme Court was to clothe the Commission with any role, there would have been some express mention of such intention in the judgment. Reference is made to the decision in Delhi Domestic Working Women Forum v. Union of India 1995 (1) SCC 12 where the Supreme Court visualized a role for the National Commission under the Protection of Human Rights Act , 1993; the Court had also directed the National Commission to frame a scheme. 17. It is contended that one of the cardinal principles upon which our legal system is founded is a fair procedure, which should be followed by every authority before arriving at adverse findings against anyone. Such fair procedure would include prior reasonable notice,

notification of the subject matter of enquiry or charge, reasonable opportunity to defend oneself and evaluation of the materials by impartial and unbiased tribunal who would render findings based on the materials presented during the course of the proceedings. The DPS Society supports Verma's contention that each of these essentials were breached by the National Commission while arriving at its conclusions, adverse conclusions regarding sexual harassment of the teachers. Both of WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 14 them rely upon the Sharda Nayak Committee report dated 2.7.1999, which exonerates Verma and states that it was compliant with the direction in Visakha's case. 18. The teachers deny the Society's allegations, and contend that the procedure adopted by the Sharda Nayak committee was defective, as the NGO member did not participate in the inquiry, which was why they did not attend its hearings. It is argued that the school and the society did not show any seriousness in dealing with the complaints, despite the Commission writing to them, in December, 1998, which led to the teachers approaching an NGO, in April, 1999. The Commission was concerned about the school's lack of responsiveness, despite the binding directions in Vishaka, as a result of which it was constrained to inquire into the matter; its conclusions accorded with the previous report of Dr. Kamala Chowdhary, of 17.2.1999. The attempt of the school to close the issue was deplorable, as it violated the law declared by the Supreme Court. The teachers' position is discussed in greater detail below. 19. The teachers, in their Writ Petition (W.P. (C) No.1731/2001) seek a direction to the DPS Society to terminate the services of Verma, and reinstate them (the petitioners) to their jobs with full back salary and consequential benefits. They also seek implementation of the Kamla Chowdhary Committee report dated 17.02.1999 and without prejudice to that, the findings and recommendations by the Commission's report dated 29.06.1999. 20. The teachers assert that the DPS Society and the School have a public duty towards the female staff, teachers and students, which they have failed to perform, thus infringing the Fundamental Rights as guaranteed under Articles 14, 19 and 21 of the Constitution. The teachers allege that Verma was found guilty of sexual harassment in WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 15 the report of the Commission and the Kamla Chowdhary Committee report, and non- compliance with the directions of the said report are illegal. Once the Committee was formed the second respondent was bound by its findings. The conduct of the Society in allowing Verma to continue in service violated the directions in the Commission's report to terminate his services. 21. It is pointed out that the committee set up by the DPS Society to investigate the matter was not in accordance with the Vishakha Judgment guidelines as there was no NGO participation. A member of that committee who claimed NGO credentials did not inspire confidence in the minds of the teachers. Despite requests, the terms of reference of that Committee were not divulged to them, which contravened principles of natural justice. It is alleged that the members of the DPS Society and the School attempted to cover up Verma's illegal acts. It was stated that the Chairman of DPS Society, in his deposition before the Commission, threatened the petitioners for seeking NGO support and stated that their careers were "sealed". It is stated that in not giving one month's obligatory notice to the second petitioner before terminating her services during the probation period the authorities violated Rule 28 (1) of Chapter VIII of Central Board of Secondary Education Affiliation Bye-laws, which regulate the conditions of service for the employees working in the school. It is stated The teachers' writ petition

that the teachers lost their jobs and are unable to secure fresh ones, resulting in grave financial difficulty; and it is alleged that the DPS Society is preventing the petitioners from securing jobs and even the police complaints by them in that regard have failed. 22. It is argued that Ms. Kamla Chaudhry's report unequivocally recorded a prima facie finding of sexual harassment by Verma after having met all the complainants and after interviewing them. It is urged that this finding is corroborated by the report of the Commission, which went into the complaints in great detail, recorded the depositions of witnesses, including of two members of the management of the DPS society, before WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 16 concluding that Verma had behaved improperly and that such behavior amounted to sexual harassment within the meaning of the term spelt-out in Vishakha. 23. Ms. Rajkotia, learned counsel submitted that the Chairman of DPS Society, had deposed before the National Commission. She relied upon the deposition and submitted that he mentioned about the complaints by the teachers. Denying that Verma was not given adequate opportunity, learned counsel pointed out that he had appeared and sought time to inspect the complaints. Learned counsel stated that Verma had filed a detailed para-wise reply to the complaint, which starkly contradicted his submission that he did not have access to the Commission's reports. It is submitted that Verma filed a Medical Certificate before the Commission expressing his inability to appear and yet was available on those same dates for deposition before Sharda Naik Committee constituted by the school. Learned counsel submitted that the Commission's report cannot be characterized as beyond its jurisdiction. Relying on Section 10 of the Act, it was argued that the Commission's investigative powers were sufficiently broad to encompass enquiries of the kind it held in relation to the complaints by the teachers. After being satisfied that the school and the Society were not acting upon the complaints, despite some background - here the emphasis being upon Kamla Chaudhry report of February, 1999 - the Commission took-up the task of investigating the matter suo motu. Learned counsel argued that the responsibility of ensuring that Vishakha guidelines were implemented both in letter and spirit was that of the employer. Though Vishakha may not have expressly spelt-out any role of the Commission, on a fair reading of the judgment and the mandate cast upon it by the law, it could be reasonably inferred that any failure by the employer to comply with the Vishakha procedure could result in the Commission taking-up the job and enquiring into the matter - which happened in this case. It was argued by the teachers that the allegation that the Commission did not follow a fair procedure is unfounded because summons were issued to Verma and the management; the latter was represented and depositions of its WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 17 Managing Committee members, including the Chairman were recorded. Refuting the submission by Verma and DPS that two Committees had been appointed, the teachers argued that in fact the Commission had constituted a three-member Committee on 25.05.1999 and that the fourth member was added on 17.06.1999. 24. Attacking the Sharda Naik Committee report, the teachers submit that the DPS Society did not adhere to the Vishakha guidelines. It is submitted that inspite of submission of the complaints in September 1998, no action was taken, which led to some of the teachers approaching the Commission in November 1998, which asked asked the DPS Society to look into the matter on 01.12.1998. Dr. Kamla Choudhry therefore investigated into the matter and recorded that there were clear instances of sexual harassment by Verma. These were brought to the notice of the DPS Society, which took no further action - and as records of these cases reveal, even resolved not to do anything further. Constrained by this deliberate wall of

silence, the teachers lodged complaints on 09.04.1999, alleging sexual harassment by Verma. The DPS society then woke-up and claimed that the Sharda Naik Committee was set-up on 20.04.1999 and that held its first meeting on 05.05.1999 and requested the complainants to be present on 17.05.1999. 25. It was argued that the teachers had reservations about Sharda Naik Committee and had written on 15.05.1999 to Ms. Sharda Naik, asking particulars about it (the Committee) after which they would decide to participate further in the matter. This letter was never responded to. It is submitted that Sharda Naik Committee comprised only representatives of the management and the NGO member, mandated by Vishakha was not involved. This resulted in the entire proceeding getting vitiated, its findings, illegal. The teachers urge that in the absence of any order suspending or transferring Verma, as was required by Vishaka, the Sharda Naik committee should not have proceeded with its inquiry. The Supreme Court guidelines in this regard, urged their WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 18 counsel, were specific - if the complainants were in employment, they were to be given the choice of a transfer, or else, the alleged perpetrator should have been temporarily posted away somewhere, or asked not to attend work, as a confidence assuring measure. The school deliberately ignored this. 26. It is submitted that the DPS society flouted the law in Vishaka, as the records of this case establish. Counsel argues that the Sharda Naik Committee had initially submitted a report, which revealed that the NGO member was co-opted only for two hearings. Reliance was placed on the report, submitted to the society, dated 30.6.1999, to say that Ms. Chandrika Vasudev was nominated late during the proceeding, at the behest of Ms. Sharda Nayak. The relevant part of the said document, (at page 182, of WP 1731/2001) is as follows: "...The Chairperson of the Committee Mrs. Nayak met the Chairman suggesting that a third party, a woman, be co-opted in order to counter any criticism from the complainants that the Committee did not "meet the guidelines of the Supreme Court". The Chairman agreed and the chairperson made considerable efforts to contact women in NGO's and women's organizations. Mrs. Chandrika Vasudev, a business woman and social worker kindly agreed to spare the time on two afternoons 17 th and 18th June...." It is argued that the DPS Society, in its reply to these averments, says that the report dated 30.6.1999, was a "draft" since it was not signed by all members of the (Sharda Naik) committee, and that this discrepancy was noticed by the Society, after which all members of the committee signed the report; yet the Society does not deny that the draft did mention that Ms. Vasudev participated only on two dates, in June, 1999. The teachers also submit that the Sharda Naik committee's report displays a zeal to "get on" with the matter, and see if Verma could be exonerated, and is contrary to the intendment of Vishaka, which is to enquire into allegations of sexual harassment, at the workplace. The DPS Society, and the Committee, made no attempt to answer the WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 19 concern of the teachers, in relation to composition (of the Committee) voiced in the letter of 15.5.1999, by Ms. Raza, which had elicited specifics about the its mandate, to be satisfied about the bona fides of the society. It is submitted that another letter, dated 8th June, 1999 was written, repeating the request - this was in response to the committee's intimation (dated 28.5.1999) about the hearing scheduled on 17 th June, 1999.

27. The teachers argue that the DPS society's actions belie its claims of having acted fairly - the minutes of the society's meetings are relied on for the purpose. It is also argued that even

the Sharda Naik Committee report ex-facie reveals a pre-disposition to exonerate Verma. Learned counsel submitted that the report records that during the first sitting when two teachers had appeared, in response to the intimation, they expressed reservations about the participation of two members, i.e. Dr. Nanda and Mr. Narender Kumar as they "were associated with Mr. Verma and they felt they would not get a fair hearing." At this, those said members (of the Nayak committee) "withdrew" from the committee, as recorded in its report. Yet, point the teachers, they later participated; Mr. Narender Kumar even appeared to have given his personal observations about his meeting with one of the teachers, which really constituted his being a witness, thus completely negating his neutral position as an unbiased member of a fact finding committee. It is, in these circumstances, argued that the Sharda Nayak Committee report cannot be accepted, and the court should act upon Dr. Kamla Chowdhary's report, and the Commission's report, which had indicted Verma. 28. Verma counters the teachers' allegations, stating that they are wrong and incorrect and that, besides, they have suppressed material facts. It is stated that the FIR dated 22.05.1999 filed by the teachers with the Faridabad police was found to be baseless and false upon investigation and the objections raised against the final report of the Faridabad Police (by the teachers) were rejected by the court on 28.10.1999. WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 20 Verma also contends that Ms. Kaul was a receptionist in the school between the period of 14.04.1998 to 05.12.1998. According to him, the Kamala Chowdhary Committee report and the Commission's report were ex-parte, in defiance of principles of natural justice as no charges were ever framed against him and no notice was served on him. He was also not provided with a copy of the complaints or allowed to participate in the day- to-day proceedings of the Committee/Commission in this matter. The Kamla Chowdhary, Committee report, says Verma is devoid of evidence and statements of witnesses as they were never recorded. The report of the Commission has recorded statements of four witnesses none of whom were connected with the School in any manner nor were eye-witnesses. The Commission had ignored the requests of the all the teaching and non-teaching staff of the School for being permitted to depose in the matter. 29. Verma says that Ms. Kannan joined the school in July, 1995 as T.G.T. teacher, and after working for about two and a half years she applied a PGT position. Her application contained wrong and misleading credentials, which contradicted her application for the TGT post, furnished by her in 1995 and, on being questioned on 12.10.1998 she tendered her resignation and stopped coming to school. Later by letter dated 15.10.1998 she withdrew her resignation but did not resume office. She then sent a medical certificate dated 16.11.1998 of a private doctor seeking medical leave from 25.10.1998 to 24.11.1998, and finally on 25.11.1998 she again sent a handwritten resignation letter stating that she will not be able to render services on the ground of deteriorating health. The resignation letter was accepted after three months notice period and she was relieved from her duties. Verma alleges that Ms. Raza joined the school on 01.07.1997 on probation for one year, during which her work and conduct was unsatisfactory and her services were terminated w.e.f. 07.04.1998 (after approval of the Chairman of the DPS Society) on 19.03.1998, and all her dues were cleared. Ms. WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 21 Kaul was appointed as Receptionist on ad- hoc basis for one year w.e.f. 14.04.1998. She stopped reporting for work from 05.12.1998 and abandoned her job.

30. Verma denies that when a teacher in D.P.S., R.K. Puram he held the post as a government teacher. He denies that he was transferred from R.K. Puram to Faridabad and states that he

was selected for the post of Principal for D.P.S., Faridabad in an open selection after the vacancy was advertised in the press. Prior to that he had served as Vice Principal at D.P.S., R.K. Puram for five years. It is stated that immediately upon receiving the teachers' complaint in April, 1999 a six member complaints committee was constituted by the D.P.S. Society to investigate the matter in conformity with the Vishakha guidelines. The said committee, upon examining the allegations concluded that they were false and baseless. There was no dereliction in performance of duties by Verma. It is submitted that complaint dated 17.11.1998 of Ms. Raza, sent to the Commission did not contain any allegation of sexual harassment. It was addressed to the President of the DPS Society, who marked it to the Chairman, in whose opinion it was a service matter and he appointed a two-member committee comprising of Dr. Kamla Chowdhary and Sharda Nayak to look into it and directed them to submit a short report. This committee, it is submitted, seems to have never met, nor recorded any evidence. It is alleged that the petitioners have misquoted the statement of the Chairman before the Commission. The letter by the second petitioner dated 30.04.1998 contained no allegations of sexual harassment and further, she stated that she had suffered miscarriage on 07.04.1998 despite which she could meet the President of DPS Society on the morning of 09.04.1998. 31. The Commission, in its returns and affidavits, recounts the history of the litigation, mentioning how its report attracted suo motu attention by the Supreme Court, which initiated proceedings, deemed to be under Article 32 of the Constitution of WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 22 India. During pendency of those proceedings (in which the Society and Verma were issued with notices) writ petitions were filed on behalf of Mr. Verma, and the Society, in this court. Eventually, the matters were directed to be heard by this court. 32. The Commission submits to receiving a complaint from Ms. Raza, in November, 1998, and asking the DPS society, through a notice dated 1.12.1998, to make suitable enquiries; it also submits that consequent to its request, Dr. Kamla Chowdhary, a member of the DPS staff, was asked to look into the matter; she reported to the Society by her letter dated 17.2.1999, corroborating that indeed, there were instances of such conduct, by Mr. Verma, that amounted to sexual harassment. It also states that since the DPS Society took no action, letters were written to it, by the victims- all teachers and employees of DPS Faridabad, on 9.4.1999, through an NGO. Since no action was forthcoming, the NGO addressed a press meeting on 13th May, 1999. The Commission denies that the press meeting was held under its aegis, and mentions that only one of its members was present then. 33. The Commission refutes having adopted an unfair procedure, alleged by Verma, or the DPS Society. It submits that no less than four summons were sent to Verma; he attended the Commission hearing, and submitted that he had no copy of the complaints, and other materials. He was allowed inspection, and he availed of that opportunity, on 11th and 12th June, 1999, after which he failed to attend the hearings. It is submitted that repeated summons to the DPS society did not evoke any response, and ultimately, at his convenience, having regard to the Chairman's (of the society) status, a hearing was given on 22.6.1999; on that day the fourth member could not be present, as the meeting was scheduled at the convenience of the Chairman. Stand of the National Commission

34. The Commission relies on its report, and submits that all precaution was taken to grant opportunity to the concerned parties, including the complainants, the Society, and WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 23 Verma. It states that only one report- dated 29th June, 1999 was issued, and that the other was a copy, produced by Verma and the Society which is an unauthorized draft version. It points out to the differences between the two, to say that they are mainly in regard to mistakes, and errors, and not as regards matters of substance. 35. It is contended by the Commission that the powers under Section 10 - particularly Section 10(1) (e) and (f) are sufficiently broad to encompass jurisdiction to enquire into specific allegations concerning women's issues, which include complaints of sexual harassment at the workplace, aimed at informing appropriate government authorities, to ensure suitable remedial action. It is submitted that though Vishaka does not expressly assign any role to the Commission in such matters, if such function fall within the legitimate sphere of its jurisdiction, the court should not restrict the provision, through statutory interpretation.

The questions requiring decision

36. The following questions, according to this court, arise for consideration: (1) Jurisdiction of the Commission and fairness of the procedure adopted by it; (2) Whether the DPS Society and the DPS Faridabad followed the Vishaka guidelines suitably, in addressing the allegations of sexual harassment at the workplace, by the teachers;

(3) If the answer to the previous question is in the negative, the appropriate relief.

37. The Commission is a statutory body for women, set up in 1992, by Central Government under, the National Commission for Women Act , 1990 (Act No. 20 of 1990). The objective of the Commission is to represent the rights of women in India and to provide a voice for their issues and concerns. It has published about and campaigned WP(C) Nos..1730/2001, 1731/2001 & 1733/2001 Page 24 on several issues that concern women in India, such as dowry, equal representation for women in jobs, politics, religion and the exploitation of women workers. The Commission has also dealt with allegations concerning police abuses against women. The functions of the Commission, (set up under Section 3 ) are spelt out in Section 10 . They include investigation and examination of matters relating to the safeguards provided for women under the Constitution and other laws; present to the Central Government, reports upon the working of those safeguards; draw up reports and recommendations for effective implementation of safeguards for improving the conditions of women by the Union or any State; review, from time to time, the existing provisions of the Constitution and other laws affecting women and recommend amendments to suggest remedial legislative measures to address, inadequacies or shortcomings in such legislations. The Commission is also empowered to "take up the cases of violation of the provisions of the Constitution of other laws relating to women with the appropriate authorities"

38. Section 10 of the Act, which sets out the functions of the Commission, is as follows:

"10. Functions of the Commission. -- (1) The Commission shall perform all or any of the following functions, namely: -- (a) Investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws;

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