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Sexual harassment at defence establishments

By Rakesh Shukla

If a woman employed in the defence services files sexual harassment charges at the workplace, she is likely to be further harassed by the initiation of disciplinary proceedings against her, as the recent case of the principal of Army Public School demonstrates

The few instances of sexual harassment at the workplace in the army and airforce that have surfaced in the public domain have resulted in the woman complainant being further harassed by the initiation of disciplinary proceedings against her. The woman is charged with various counts of professional misconduct and is eventually dismissed from service. Or, the level of harassment increases until she is forced to quit her job.  

Earlier instances have been of complaints of sexual harassment in the workplace by women officers, with allegations against their superiors. In the present case, reported as D S Grewal versus Vimmi Joshi 2009 (1) SCALE 54, the Supreme Court dealt with a case of sexual harassment of the woman principal of Army Public School in Pithoragarh.

Vimmi Joshi applied for and was appointed trained graduate teacher at General B C Joshi Army Public School in Pithoragarh. Later, she was appointed post-graduate teacher (mathematics) and worked as officiating principal from February 10, 2003, to August 10, 2003. Joshi was appointed principal of the school on February 10, 2004.  

Brigadier Grewal is chairman of the school management committee and Colonel Hitendra Bahadur, deputy commander, 69 Mountain Brigade posted at Pithoragarh, is the committee’s vice-chairman.

In connection with security cover for the Amarnath Yatra, Bahadur travelled to Sonamarg from where he wrote a letter to Vimmi Joshi. In the letter, Bahadur confessed his love for Joshi. The letter was full of compliments to Joshi, ranging from her intelligence and maturity to comments about her slender, fashionable body. Bahadur expressed a wish to hold her hand, and the letter ended with “lots of love”.

Principal Joshi stated that Hitendra Bahadur used to make advances towards her, and reported the matter to Brigadier Grewal. Joshi’s father too met Grewal in this regard and alleged that Grewal abused him. On October 12, 2004, Grewal wrote a letter to Joshi referring to her allegations against Bahadur. The letter stated that her father had met Grewal and had made similar allegations. It went on to say that Joshi had been directed to forward the allegation in writing. It concluded that cognisance of the matter was not being taken as written allegations had not been received.

Thereafter, on or around October 25, 2004, the managing committee received two anonymous complaints against Joshi from headquarters. A memorandum dated October 25, 2004, was issued to the principal asking her for her comments on the allegations. Joshi gave her comments in a letter dated October 27, 2004. Her services were terminated by an order dated December 4, 2004, issued by Grewal.

Joshi filed a writ petition in the high court questioning the legality of the termination order, alleging sexual harassment by Hitendra Bahadur as one of the grounds. It was contended on behalf of Grewal and Bahadur that the termination order had nothing to do with the sexual harassment complaint. It was argued that Hitendra Bahadur’s letter could not be said to amount to sexual harassment. Further, that Bahadur, who had nothing to do with the school management, had sent the letter from Sonamarg, so the case would not fall within the ambit of sexual harassment at the workplace. In the interim period, an inquiry was said to have been conducted where the report, dated January 20, 2005, concluded that this was not a case of sexual harassment. The report recommended counselling for Bahadur.

Based on the contents of the letter, the admissions of both officers, and termination of Joshi’s services, the high court reached a finding of sexual harassment. It directed the secretary, Ministry of Defence and the chief of army staff to take disciplinary action against Grewal and Bahadur. The court observed that the order was being passed in view of the law laid down by the Supreme Court in Visakha versus State of Rajasthan (1997) 6 SCC 241 (Visakhacase) with regard to sexual harassment in the workplace.

The standard response of managements, specially the defence establishment, to a woman’s complaint of sexual harassment in the workplace is to charge her for insubordination, disobeying the orders of superiors, and other acts constituting professional misconduct. In the present case, the army management went a step further and filed a First Information Report (FIR) against Joshi alleging financial irregularities. After an investigation, the police submitted a report exonerating Joshi which was accepted by the chief judicial magistrate, Pithoragarh, by order dated February 13, 2006.

Grewal and Bahadur appealed to the Supreme Court stating that the high court should not have arrived at the finding that Bahadur was responsible for sexual harassment so as to pass a final judgment, while simultaneously directing the initiation of disciplinary proceedings in the matter. Further, that Joshi was on one-year probation and that her services could be terminated by giving a month’s notice or salary, without assigning any reason. It was argued that Joshi had not submitted a written complaint despite having had the opportunity. Lastly, it was submitted that Bahadur had already undergone an inquiry, therefore the order of the high court directing an inquiry was misconceived.

It was submitted on behalf of Vimmi Joshi that the letter had been written by the vice-chairman of the managing committee of the school to the principal who was his subordinate. It was argued that the matter had been brought to the notice of the chairman and that no further complaint in writing had been necessary. Further, that the circumstances of the case clearly show that termination of Vimmi Joshi’s services was malafide under the law.

The Supreme Court observed that as Joshi’s writ petition was pending before the high court it would not go into the merits of the case. However, it noted that in the Visakhacase, the Supreme Court had laid down guidelines with regard to initiation of disciplinary proceedings, formation of complaints committees, and the putting in place of a complaints mechanism for cases of sexual harassment in the workplace. The complaints committee has to be headed by a woman; at least half of its members have to be women. A third party, like an NGO familiar with the issue of sexual harassment, must be involved in the committee to prevent undue pressure from seniors in the organisation. The court noted that a Protection of Women against Sexual Harassment at Workplace Bill, 2007, had been drafted showing that lawmakers had accepted the guidelines laid down in the Visakha judgment.

Coming to the present case, the court noted that Vimmi Joshi was working as principal of the school and was drawing a salary. The Army Public School was a public enterprise. Joshi had been humiliated by the letter, and by Bahadur’s alleged advances. The court held that Joshi had reasonable grounds to believe that her objections would be a disadvantage in connection with employment, or would create a hostile working environment. According to Joshi, adverse consequences followed as a result of her job termination.

The Supreme Court noted that neither had a mechanism for redressal of Joshi’s complaints been put in place, nor had a complaints committee been constituted as required under law. It observed that it was a matter of “great regret” that the army had failed to put a complaints mechanism in place and had ignored the ruling of the apex court in the Visakha case. The judgment held that disciplinary proceedings could be instituted after a prima facie finding as to the role of the delinquent. The purported inquiry by the army exonerating Hitendra Bahadur was found not to have provided a complete picture. The apex court held that the high court could not have reached a finding of it being a clear case of sexual harassment without further enquiry into the matter.

The Supreme Court directed the high court to appoint a three-member committee headed by a woman. And in the event that the finding was of sexual harassment, the report should be sent to the army authorities for initiation of disciplinary proceedings. The management of the Army Public School was held guilty of violating the guidelines laid down in the Visakha case and directed to pay Rs 50,000 to Joshi towards expenditure incurred on the case.

(Rakesh Shukla is a Supreme Court lawyer) 

InfoChange News & Features, May 2009