INTRODUCTION
Petitioner: Apparel Export Promotion Council
Respondent: A.K. Chopra
Date of Judgment: 20/01/1999
Bench: V.N. Khare
FACTS
A.K. Chopra, the respondent, was serving as a private secretary to the chairman of the appellant, Apparel Export Promotion Council. On 12th August 1988, the respondent compelled one female employee (Miss X) of the council by using his superior position to accompany him to the Business Centre at Taj palace hotel to take dictation from the chairman even though she was not trained enough to take the dictations. By taking advantage of the secluded place at the business centre, the respondent tried to molest her by sitting too close to her and touching her despite her several objections. He even tried to molest her in the lift while coming to the basement of the business centre. On 18th August, the respondent was placed under suspension based on the complaint lodged by her on 17th August before the director of the appellant. An enquiry officer was appointed to look into the matter who based on all the witnesses and evidence concluded that the respondent was guilty of molestation and his act against Miss X was not up to the test of decency and modesty. Based on the enquiry officer’s report, the respondent was removed from service by the disciplinary authority on 28th June 1989.
The respondent filed an appeal before the Staff committee (Appellate authority) of the appellant-employer against the order of his removal from service where his appeal was dismissed. The respondent then filed a writ petition in the High Court against the decision of the staff committee. The learned single judge held that the respondent tried to molest her, not molested her. So, the writ was dismissed with the direction to the appellant to reinstate the respondent in the office outside Delhi for a period of a minimum of two years without back wages.
The appellant in a response filed Letters Patent Appeal (L.P.A) against the order of the learned single judge but the L.P.A was also dismissed by the division bench based on the same conclusion given by the learned single judge. Aggrieved with the order, the employer-appellant appealed to the Apex court via Special leave petition which was granted.
ISSUES
1) In the cases of sexual harassment, whether the physical contact is the requisite ingredient or not?
2) If a superior’s behaviour against a woman employee does not withstand decency and modesty, will it be amount to sexual harassment or not?
3) Whether “trying to molest” a woman employee at the “place of work”, not constitute an act unbecoming of good conduct and behaviour expected from the superior or not?
4) Does Whether High court has the jurisdiction to interfere in the adequate decision made by the disciplinary authority or not?
RATIO DECIDENDI
In “Vishaka v. the State of Rajasthan[2]”, The apex court gave a broader definition of “sexual harassment” which includes unwelcome sexually determined behaviour (whether directly or by implication) as:
- a) physical contact and advance;
- b) a demand or request for sexual favours;
- c) sexually-coloured remarks;
- d) showing pornography;
- e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
OBITER DICTA
The learned single judge of the High Court made a narrow interpretation of the term “Sexual Harassment” and held that the respondent “tried to molest her”, not molested her or “had not managed to molest her” as there was no evidence of Physical contact.
JUDGEMENT
The supreme court gave a broader interpretation to the term “molestation” and also opined that physical contact is not the sole indicator to deal the sexual harassment cases. The apex court held that the respondent’s action was notwithstanding the decency and modesty, hence it amounted to “Sexual Harassment”.
The apex court also held that the High court had overlooked the fact that, in departmental proceedings, the disciplinary authority (enquiry officer) and the case of appeal, the appellate authority (staff committee) can be the sole judge to re-appreciate the evidence as they are the fact-finding authorities. So, in this case, the High court did not have the authority to interfere with the quantum of the punishment.
Hence, the apex court set aside the order of the High Court and upheld the punishment imposed by the Disciplinary Authority and the Departmental Appellate Authority of removal of the respondent from service.
ANALYSIS
The case “Apparel Export Promotion Council v. A.K Chopra[3]” has brought the issue of sexual harassment of women at the workplace in the light. In this case, the respondent, A.K. Chopra used his superiority and tried to molest the female employee of the appellant, Apparel Export Promotion Council.
The first issue of the case was that whether the High court has the power to interfere with the decision of the Disciplinary Authority and the Appellate authority when there was no evidence that the findings of the enquiry officer and the appellate authority were faulty, arbitrary or perverse. The apex court after observing various precedents like “B.C. Chaturvedi v. Union of India[4]”, “Union of India v. Sardar Bahadur[5]” etc. came to the conclusion that the interference of the High Court regarding the findings of the departmental authority and the punishment imposed was erroneous.
The second issue was whether “Physical contact” is the essential element for the cases of sexual harassment or not. Here the High court made a narrow interpretation of the term “Sexual Harassment” and used the dictionary meaning of the terms “molestation” and “physical assault” while stating that the respondent had not “actually molested” Miss X, he had only “tried to molest” her and had “not managed” to make physical contact with her.
I disagree with such an absurd judgement given by the High Court. Such misinterpretation would set bad example in front of society, defame the nation and also will degrade women empowerment. No law in India defines “touching” or “physical contact” and this uncertainty led to the misinterpretation. If this kind of interpretation would be allowed, then many perpetrators would be able to escape with the help of this ambiguity.
CONCLUSION
“Sexual Harassment” is a social issue which not only affects women but also society at large. It brings gender discrimination to society. “Sexual harassment at the workplace” discriminates the women and also hampers women empowerment.
“Apparel Export Promotion Council v. A.K. Chopra” was the first case in which the Apex court upheld the Vishakha Judgement where it maintained its decision that sexual harassment of women in the workplace is in violates the fundamental rights under Article 14, 19 and 21. The Judgement also upheld the validity of various international conventions like CEDAW (Convention on the Elimination of All Forms of Discrimination Against Woman, 1979), the Beijing Declaration, ICESCR (International Covenant on Economic, Social and Cultural Rights) which advocates several provisions for women due to absence of any domestic law regarding this issue at that time. Now, the guidelines given by the apex court during the Vishakha judgement laid the founding stone of the POSH, 2013 which aims to protect women from sexual harassment at workplaces.
Author(s) Name: Rumela Biswas (Christ University, Delhi)
References:
[1] AIR 1999 SC 625
[2] Vishaka and Ors. v. State of Rajasthan and Ors [1997] AIR SC 3011
[3] AIR 1999 SC 625
[4] B.C. Chaturvedi v. Union of India (1996) ILLJ 1231 SC
[5] Union of India v. Sardar Bahadur (1972) ILLJ 1 SC
