Holding

The Supreme Court held that the High Court could not deem a clear case of sexual harassment without a constitutionally mandated complaints committee and proper inquiry, and therefore ordered the appointment of a three‑member complaints committee headed by a woman.

Summary

The case concerned the termination of Vimmi Joshi, a principal of an Army public school, who alleged sexual harassment by the Vice‑Chairman of the School Managing Committee, Col. Hitendra Bahadur. The High Court had held that a clear case of sexual harassment existed and ordered disciplinary action against the officers, despite the absence of a Vishakha‑compliant complaints committee. The Supreme Court examined whether the High Court could reach such a conclusion without a proper complaint mechanism, noting that the Army had failed to constitute a complaints committee as mandated by the Vishakha guidelines and Article 144 of the Constitution. The Court held that the High Court erred, modified its order, and directed the appointment of a three‑member committee headed by a lady to investigate the complaint, with any findings to be sent to the Army for disciplinary action. It also ordered the school management to bear the costs of the petitioner’s counsel.

Issues considered

The High Court's authority to declare a clear case of sexual harassment without a Vishakha‑compliant complaints committee.
Whether the Army authorities complied with the Vishakha guidelines and Article 144 in handling the complaint.
Whether the termination of the principal was lawful under the Army Welfare Education Society (AWES) service rules.
The necessity of constituting a complaints committee in the absence of specific legislation.

Legislation cited

Constitution of Indias. Article 144

Subjects

sexual harassmentVishakha guidelinescomplaints committeeArticle 144termination of servicearmydisciplinary actionworkplace harassmentpublic enterpriseservice rules

Judgment

[2008] 17 S.C.R. 864

A D.S. GREWAL
v.
VIMMI JOSHI & ORS.
(Civil Appeal No. 7355 of 2008)

DECEMBER 17, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

Service Law - Termination - Complaint of sexual
harassment by principal of Army School against army officer-
C Vice Chairman of School Managing Committee -
Termination of complainant- Interim order by High Court that
delinquent caused sexua/. harassment to complainant and
directed Army Authorities to initiate disciplinary action - On
appeal held: No complaint committee was cons_tituted - No
D mechanism put in place for redressal of complaint by victim
- Army Authorities ignored the guidelines laid down in
Vishakha's case by Supreme Court as regard disciplinary
action, complaint mechanism and complaint.:committee
;.
·- ~

which was to be given effect to in terms of Article 144 - Hence,
High Court directed to appoint three members committee
E headed by a lady - In case delinquent found guilty, Army
Authorities would initiate disciplinary action against him -
Guidelines - Constitution of India, 1950 - Article 144.
Respondent no. 1 was working as the principal of
. ..
Army Public School. Brigadier DS is the Chairman of the
F School Managing Committee while Col. HB is the Vice
Chairman. It is alleged that Col. HB used to 111ake
advances towards respondent no. 1. She brought the
matter to the notice of the Chairman. Respondent No. 1
was asked to give the complaint in writing. Subsequently,
G the Managing Committee received two anonymous
complaints against respondent no. 1. Respondent no. 1 ,
replied to the allegations made. However, her services
were terminated. Respondent challenged the order of
termination alleging s'exual harassment by Col. HB.
H 864
D.S. GREWAL v. VIMMI JOSHI & ORS. 865

Meanwhile inquiry was conducted. Respondent no. 1 A
participated It was found not to be a case of sexual
harassment. Division Bench of High Court held that a
clear case of sexual harassment of respondent no. 1 was
made out. It directed the Secretary, Ministry of Defence
and Chief of Army Staff to take disciplinary action against" 8
the two officers. Hence the present appeal.
Disposing of the appeals, the Court
HELD: 1.1 In terms of the judgment of this Court in
*Vishakha and others v State of Rajasthan certain guidelines
have been laid down by this Court till an appropriate c
\egis\ation is made in this behalf, some of them being-
disciplinary action, complaint mechanism and complaints
committee. The Legislature too have keeping in mind the
guidelines from Vishakha recently drafted the Protection
of Women against Sexual Harassment at Workplace Bill, 0
2007. The Bill is to provide 'for the prevention and
redressal of sexual harassment of women at workplace
and formatters connected therewith or incidental thereto'.
The draft law provides for consideration of a mandatory
committee to hear complaints of sexual harassment. It
a!so stipulates the procedures for setting up of these E
committees. If the complaint is found to be true, the draft
law provides for monetary compensation. It also
stipulates a time period for completing the enquiry and
for employers to take action against the accused. The Bill
has not till yet been enacted by the Parliament. The Bill F
is cited only to show that the law makers too have
accepted the directions and guidelines which had been
laid down by this Court. [Para 19] [874-G-H; 875-A-B]
*Vishakha and Ors. vs. State of Rajasthan 1997 (6) SCC
241, relied on. G
1.2. Respondent No.1 was a working lady. She was
working as the Principal of the School. She was drawing
'a salary. It is a public enterprise. She felt humiliated not
only by reason of the said letter; according to her, HS
also made advances towards her. Therefore, she had a H
866 SUPREME COURT REPORTS [2008] 17 S.C.R.

A reasonable ground to believe that her objection, thus,
would cause disadvantage to her in connection with her
employment or work including her recruitment 01'
promotion or creating a hostile working environment.
According to her, adverse consequences visited as her
services have been terminated. [Para 20] [875-C-D]
8
Apparel Export Promotion Council v. A.K. Chopra 1999
(1) sec 759, referred to.
1.3. Before, a disciplinary proceeding is initiated in a
case of this nature, a prima facie finding has to be arrived ,....
c at as regards the role of the delinquent. The job of Col.
HS was merely to function as the Chairman in the
absence of the regular Chairman. It is not in dispute that • ,.
no Complaint Committee has been constituted; no
mechanism has been put in place for redressal of the
complaint made by the victim. For one reason or the
0
other Col. OS failed and/or neglected to take appropriate ""°
action. [Para 23] [875-G-H]
1.4. It is a matter of great regret that the army which
is a disciplined organization failed to provide a complaint
E mechanism and ignored the decision of this Court which
•.
was bound to be given effect to in terms of Article 144 of
the Constitution of India. A complaint committee as per
. 'Vishakha' was constituted for the other teachers and the
staff but evidently no complaint co/mmittee was
constituted for entertaining a complaint of this nature.
F Even the purported disciplinary action initiated by the
appellants does not provide a complete picture. A report
was submitted but whether any further action has been
. taken or not is not known. [Para 24] [876-A-C]
:-·'."~.' 1.5. The High Court without getting the matter
G enquired into could not have opined that it was ·a clear
cut case of sexual harassment of the writ petitioner and
on that basis directed initiation of a disciplinary action in
the manner. In modification of the order passed by the
,. High Court, it is directed that as no complaint committee
H

i
D.S. GREWAL v. VIMMI JOSHI & ORS. 867

has been constituted, which was imperative in character, A
the High Court may appoint a Three Members Committee
~
.. headed by a Lady and in the event it is found that the writ
petitioner was subjected to sexual harassment, the report
thereof may be sent to the army authorities for initiation
of a disciplinary action against the appellants herein on B
the basis thereof. All the expenditures which may be
incurred in this behalf may be borne by the Army
Authorities. As the Management of the School is guilty of
• -,.., violating the guidelines issued by this Court in Vishakha's
case, Management is directed to pay and bear all the cost
of the first respondent. Counsel fee is assessed at Rs, c
50,0001-. [Paras 25, 26, 27 and 28] [876-D-F-G]
• Case Law Reference:
997 (6) sec 241 Relied on. Paras
19, 24 and 28
D
1999 (1) sec 759 Referred to. Para 21
CIVIL AP PELLATE JURISDICTION : Civil Appeal No.
7355 of 2008.
From the Judgment and final Order dated 3.5.2006 of the
High Court of Uttaranchal at Nainital in Writ Petition No. 398 E
of 2004.
WITH
C.A. No. 7356 of 2008 and CA No. 7357 of 2008.
K.K. Rai, Manish Kumar, Nitin Bhatia, Shekhar Kumar,
S.K. Pandey and Rekha Palli for the Petitioner in SLP (C) No. F
,J&.~ 10143 of 2006.
Chetan Sharma, K. Singhal, Vineet Malhotra and Rekha
Palli for the Petitioner in SLP(C) No. 10044 of 2006 & 10046
of 2006.
G
S. Janani and Deepak Goel for the Respondents.
The Judgment of the Court was delivered by
·~ S.B. SINHA, J. 1. Leave granted.
2. These three appeals arise out of a common judgment
H
868 SUPREME COURT REPORTS [2008] 17 S.C.R.

A and order dated 3rd May, 2006 passed by a Division Bench
of the High Court of Uttaranchal at Nainital in Writ Petition No. r
398 (SIB) of 2004. ~

3. In Pithoragarh where an army unit is situated, an Army
Public School known as Gen. B.C. Joshi Army Public School Ir-

B is being run by a society known as Army Welfare Education

..
Society.
4. Appellant (Brig. D.S. Grewal, hereinafter referred to as
'Grewal') in Civil appeal arising out of SLP (C) No.10044 of ,.-
2006 is the Chairman of the School Managing Committee while
c Col. Hitendra Bahadur appellant in Civil Appeal arising out of.
SLP (C) No.10143 of 2006 is the Vice Chairman thereof.
Chairman, School Managing Committee and others are the
•
appellants in Civil Appeal arising out of SLP (C) No.10046 of
2006.
D 5. First respondent Vimmi Joshi applied for and was
appointed as a Trained Graduate Teacher in Gen. B.C. Joshi
Army Public School. She was later on appointed as Post
Graduate Teacher (Mathematics). She was confirmed in the
said post. She worked as an officiating Principal from
10.2.2003 to 10.8.2003. She was appointed as the Principal
E
of the school from 10 .2 .2004.
6. Appella.nt Hitendra Bahadur was a Deputy Commander, ....__
,
69 Mountain Brigade. He, at the relevant time, was posted at
Pithoragarh. While he was stationed at Sonamarg in connection
with providing security cover to pilgrims of 'Amarnath Yatra', he
F
wrote a letter to the first respondent, the contents whereof read ~.:
as under:-
"My dearest Vimmi,
Allow me to confess to you that I have fallen in love
G with you. What a man needs in a woman ? Love, trust and
faith, when I look deep into your eyes I find there in
abundance. No where in my life I have ever come across
a woman where intelligence, appearance, maturity and ~-
beauty is so well awarded in one single person as in you.
You are no doubt, a very charming and gorgeous woman,
H
D.S. GREWAL v. VIMMI JOSHI & ORS. 869
[S.B. SINHA, J.]

beautiful and attractive. You are very magnetic. Always A
elegantly drew-up, you look very stylist and fashionable
with slim and slender body. You appear absolutely fit,
intelligent, witty, confident, compassionate and very much
in control, you are truly a role model for all young people
at you place and most darling friend to me. I adore you 8
from the core of my heart and always value our friendship ..
You are precious and priceless. May I extend my hands.
towards you and hold your hands tightly and ask you to lean
on my shoulder when ever you need me. It will be a great
pleasure.
With lots of love.
c
Your
Sd/-
"H"'
7. Allegedly Hitendra Bahadur used to make advances.
0
towards respondent No.1. She reported the matter to Grewal. .
Her father also met him. Allegedly he was abused by Grewal.
8. On or about 12th October, 2004 Grewal addressed a
letter to respondent No.1 with respect to her allegations against ,
Hitendra Bahadur. She was allegedly .asked to give her E
complaint in writing stating:-
"1. I am writing to you regarding the allegation-made by ·
you against Colonel Hitendra Bahadur, SM, the Deputy ,
Commander of 69 Mountain Brigade.
2. On 27th Sep 04, during the interaction with me in my F
office at your request, you apprised me that the Deputy ·
Commander has written a letter to you. The letter was .
shown to me and I observed that the portion at the bottom
was torn and there was no name or signature. I asked you
as to why the portion was torn but no answer was given.
G
3. On 09 Oct 04, your father came to my office to meet
me. He also made an allegation against the Deputy ·
Commander. You were then asked by Maj Pankaj Bhola,
the BM of 69, Mountain Brigade to meet me in my office.
the matter was discussed and I directed you to forward H
870 SUPREME COURT REPORTS [2008] 17 S.C.R.
.. "
A the allegation in writing to me by 09 Oct. 04.
·4. Till date, the allegation has not been received by me.
\.-·
Hence, I will not take cognizance of the matter."
9. On or about 25th October, 2004 two anonymous
complaints were received by the Managing Committee from the
B Head Quarters as against respondent No.1. By a memorandum
dated 25th October, 2004 she was asked to give her comments
on the said allegations. She made her comments by her letter
dated 27th October, 2004. However, her services were
terminated by an order dated 4th December, 2004 stating :-
c "1. Refer to this Headquarters letter number 620401/1/
APS/Sigs-4 dated 30th Sep 2004 and Article 186 (f) of
AWES Rules and Regulations Vol.-1, for Army Schools/
Army Public School (Oct 2003 Edition).
2. SMC regrets to inform you that your services are no
D more required, hence your services are terminated
forthwith.
3: A cheque bearing machine number 176096 dated 04th
Dec 04 for Rs.14,200.00 (Rupees fourteen thousand two
hundred only) to~a·rds one month salary is enclosed as per
E the agreement.
4. Handing/Taking over all documents and other important
correspondence held on your charge will be carried out
with Mr. Kunwar Pratap Singh (Senior most PCT) of Gen
BC Joshi APS, Pithoragarn.
F Sd/-
(D.S. Grewal) ~~
Brig.
Chairman"
10. A writ petition was filed by her questioning the legality
G of the said order of termination ~lleging sexual harassment by
Hitendra Bahadur as one of the grounds, wherein an interim
order was passed o~ 3.5.2006. The said interim order is
impugned in these appe~ls. - '.f" ..(.

11. In the meanwhile a purported enquiry was conducted.
H Respondent No.1 allegedly participated therein. By a report
D.S. GREWAL v. VIMMI JOSHI & ORS. 871
[S.B. SINHA, J.]

dated 20th January, 2005 it was found to be not a case of A
sexual harassment. Hitendra Bahadur was directed to be
counseled.
12. Before the High Court appellants filed their counter-
affidavits inter alia contending :-
(i) That the order of termination has nothing to do with B
the alleged sexual harassment.
(ii) Writing a letter was merely appreciable in nature
and by reason thereof no sexual harassment was
-~

caused by Hitendra Bahadur.
(iii) Hitendra Bahadur has nothing to do with the
c
Management of the School and that the letter having
been sent from Sonamarg cannot be said to have
any sexual harassment at the work place of the first
respondent.
D
13. By reason of the impugned order, however, the Division
Bench found that it was a clear cut case of sexual harassment
of the writ petitioner-respondent No.1 herein. It was, therefore,
directed :- '
"Therefore, the Secretary, Ministry of Defence, Government
of India and the Chief of the Army Staff are directed to take E
disciplinary action against these two officers, as the case

- of sexual harassment is evident from the contents of the
letter and the admission by both the officers followed by
the termination of the petitioner.
7. We are passing this order in view of the law laid down
F
by the Hon'ble Apex Court in the case of "Vishakha &
others vs. State of Rajasthan reported in (1997) 6 SCC
' 241".
8~ The progress of the disciplinary action so taken in such
a serious manner which may even warrant the court martial G
proceedings of these two officers shall be submitted
befo~~ this Court within a· period of two months from the
date of production of the certified copy of this order."
\'

14. Before, h6wever, we embark upon the respective H
872 SUPREME COURT REPORTS [2008] 17 S.C.R.

A contentions of the parties we may notice that a review
application was filed before the High Court which was also
dismissed by order dated 18th May, 2006. The said order of
the High Court refusing to review its earlier order dated 3rd May,
2006 is not in question in these appeals.
B 15. We may furthermore place on record that a first
information report was also lodged against respondent No.1
by the school management alleging financial irregularities. After
investigation carried out in this behalf a final report was
submitted exonerating her and the report has been accepted ....
C by the Chief Judicial Magistrate, Pithoragarh by an order dated
13th February, 2006. ·
16. Mr. K.K. Rai and Mr. Chetan Sharma, learned senior
counsel appearing on behalf of the appellants would submit:-
(1) That the High Court should not have arrived at its
o finding that Col Hitendra Bahadur had caused
sexual harassment to respondent No.1, so as to
pass .a final judgment on the subject despite
· directing initiation of a disciplinary proceeding
against them.
E (2) As first respondent was appointed only on probation
for one year and during the probation period her
services could be terminated by giving one month's
notiee or salary in lieu thereof without assigning any
reason by th~ appointing authority, no case has
been made out·Ja'. pass an interim order of the
F
nature as tias been done by the High Court.
(3) As despite opportunities given she did not make
any domplaint in writing, cognizance of the said letter
dated 22nd July, 2004 of Col Hitendra Bahadur was
G (ightly not taken by Grewal.\
(4) As Hitendra Bahadur had already undergone an
enquiry, a direction,for second enquiry was wholly
misconceived.
17. Ms. S. Janani, learned counsel appearing on behalf
H of the writ petitioner-respondent No.1 on the .other hand would
D.S. GREWAL v. VIMMI JOSHI & ORS. 873
• [S.B. SINHA, J.]

contend:- A
......., (1) That admittedly the letter was written by the Vice
Chairman of the School Managing Committee to
respondent No.1, Vimi Joshi who was his
subordinate ;
(2) As the Vice Chairman of the Managing Committee 8
of the School, he was in a commanding position ;
(3) As the matter was brought to the notice of the
'I
~
Chairman of the School Managing Committee, no
further complaint in writing was required to be
-'ii made. c
(4) The circumstances attending to the case clearly
show that the termination of respondent No.1 's
services was mala fide and/or otherwise bad in law.
18. Indisputably the writ petition was filed by respondent
No.1 which is still pending. In our opinion, it would, thus, be not D
proper for us to enter into merit of the matter.
19. However, indisputably, in terms of the judgment of this
Court in Vishakha and others (supra) certain guidelines have
been laid down by this Court till an appropriate legislation is E
made in this behalf, some of them being, - disciplinary action,
complaint mechanism and complaints committee. These are
as under:-
l

' "6. Disciplinary action:
Where such conduct amounts to misconduct in F
employment as defined by the relevant service rules,
appropriate disciplinary action should be initiated by the
employer in accordance with those rules.
6. Complaint mechanism:
Whether or not such conduct constitutes an offence G
under law or a breach of the service rules, an appropriate
complaint mechanism should be created in the employer's
organization for redress of the complaint made by the
victim. Such complaint mechanism should ensure time-
llllli' bound treatment of complaints. H
874 SUPREME COURT REPORTS [2008] 17 S.C.R.

A 7. Complaints Committee:
The complaint mechanism, referred to in (6) above,
should be adequate to provide, where necessary, a
Complaints Committee, a special counsellor or other
support service, including the maintenance of
B confidentiality.
The Complaints Committee should be headed by a
woman and not less than half of its members should be
women. Further, to prevent the possibility of any undue
pressure or influence from senior levels, such Complaints
c Committee should involve a third party, either NGO or other
body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual
report to the Government Department concerned of the
complaints and action taken by them.
D The employers and person-in-charge will also report
on the compliance with the aforesaid guidelines including
on the reports of the Complaints Committee to the
Government Department."
The Court furthermore defined 'sexual harassment' to include:-
E "For this purpose, sexual harassment includes such
unwelcome sexually determined behaviour (whether directly
or by implication) as:
(a) physical contact and advances;
(b) a demand or request for sexual favours;
F
(c) sexually-coloured remarks;
(d) showing pornography;
(e) any other unwelcome physical, verbal or non-
verbal conduct of sexual nature.
G The Legislature too have keeping in mind the abovenoted
guidelines from Vishakha (supra) recently drafted the Protection
of Women against Sexual Harassment at Workplace Bill, 2007.
The Bill is to provide 'for the prevention and redressal of sexual
harassment of women at workplace and for matters connected
H therewith or incidental thereto'. The draft law provides for
D.S. GREWAL v. VIMMI JOSHI & ORS. 875
[S.B. SINHA, J.]

consideration of a mandatory committee to hear complaints of A
sexual harassment. It also stipulates the procedures for setting
up of these committees. If the complaint is found to be true, the
draft law provides for monetary compensation. It also stipulates
a time period for completing the enquiry and for employers to
take action against the accused. We are aware that the Bill has B
nc:it till yet been enacted by the Parliament. We cite the Bill only
to show that the law makers too have accepted the directions
and guidelines which had been laid down by this Court.
20. Respondent No.1 was a working lady. She was working
as the Principal of the School. She was drawing a salary. It is c
a public enterprise. She felt humiliated not only by reason of
the said letter; according to her, Hitendra Bahadur also made
advances towards her. She had, therefore, a reasonable ground
to believe that her objection, thus, would cause disadvantage
to her in connection with her employment or work including her
recruitment or promotion or creating a hostile working · D
environment. According to her, adverse consequences visited
as her services have been terminated.
21. Vishakha (supra) has been followed in Apparel Export
Promotion Council v. A.K. Chopra, [(1999) 1 SCC 759]
wherein a Division Bench of this Court inter alia held that in a E
case involving violation of human rights, the Courts must forever
remain alive to the international instruments and conventions
and apply the same to a given case when there is no
inconsistency between the international norms and the domestic
law occupying the field. F
22. Before, however, a disciplinary proceeding is initiated
in a case of this nature, a prima facie finding has to be arrived
at as regards the role of the delinquent. It has been stated
before us that the job of Col Hitendra Bahadur was merely to.
function as the Chairman in the absence of the regular G·
Chairman.
23. It is not in dispute that no Complaint Committee has
been constituted; no mechanism has been put in place for
redressal of the complaint made by the victim. For one reason
or the other Grewal failed and/or neglected to take appropriate H
876 SUPREME COURT REPORTS [2008] 17 S.C.R.

A action.
24. It is a matter of ,great regret that the army which is a
disciplined organization failed to provide a complaint.
mechanism and ignored the decision of th rs Court which was
bound to be given effect to in terms of Article 144 of the
B Constitution of India. A comp·laintcommittee as per 'Vishakha'
was constitµted for the other teachers and the staff but evidently
no complaint committee was constituted for entertaining a
complaint of this nature. Even the purported disciplinary action
initiated by the appellants does not provide a complete picture.
c A report was submitted but whether any further qction has been
taken or not is not known.
25. The High Court, in our opinion, without getting the
matter enquired into could not have opined that it was a clear
cut case of sexual harassment of the writ petitioner and on that
o basis directed initiation of a disciplinary action in the manner
as has been done in paragraph 8 noticed (supra).
-26. We, in modification, of the order passed by the High
Court direct that as no complaint committee has been
constituted, which was imperative in character, the High Court
E may appoint a Three Members Committee headed by a Lady
and in the event it is found that the writ petitioner was subjected
to sexual harassment, t~e report thereof may be sent to the
army authorities for initiation of a disciplinary action against the
appellants herein on the basis thereof. All the exp~nditures
F which may be incurred in.this behalf may be borne by the Army
Authorities ..
27. We would request the High Court also to consider the
desirability of disposing of the writ petition as expeditiously as
possible.
G 28. The appeals ar::e disposed of accordingly. As the
Management of the schoo'I is guilty of violating the guidelines
issued by this Court.in Vishakha and others (supra), we direct
that the Management to pay and bear all the cost of the first.
respondent. CounseLfee is assessed at Rs.50,000/-.
H N.J. Appeals disposed of.