Apparel Export Promotion Council v. A.K. Chopra
Supreme Court of India, 20 January 1999
A superior's unwelcome sexually determined conduct towards a female employee is sexual harassment even without physical contact, and the High Court wrongly interfered with his removal from service.
Facts
The respondent, Private Secretary to the Chairman of the appellant Council, was charged with trying to molest a woman clerk-typist (referred to as Miss X) at a hotel business centre in August 1988, where he took her for dictation and repeatedly tried to sit close to and touch her despite her objections. An Enquiry Officer found the charges proved and he was removed from service; the Staff Committee, as appellate authority, upheld the removal. A Single Judge of the Delhi High Court, finding that he had only tried to molest and had not actually molested her, ordered reinstatement without back wages. The Division Bench dismissed the employer's Letters Patent Appeal, holding that without physical contact there could be no attempt to molest.
Questions before the Court
- Whether conduct of a superior against a female employee that is against moral sanctions and fails the test of decency and modesty amounts to sexual harassment, and whether physical contact is an essential ingredient.
- Whether the High Court in writ jurisdiction could re-appreciate the evidence and interfere with the findings and penalty of the departmental authorities.
What the Court held
- In departmental proceedings the disciplinary and appellate authorities are the sole judges of fact. The High Court in judicial review may not interfere with their findings unless based on no evidence or wholly perverse, nor substitute its own view on penalty unless the penalty shocks its conscience. The High Court erred on both counts.
- Sexual harassment, as defined in Vishaka, is a form of sex discrimination through unwelcome sexual advances, requests for sexual favours and other conduct with sexual overtones, direct or implied. Any action or gesture that aims at or tends to outrage a female employee's modesty falls within it.
- Physical contact is not essential. The respondent's conduct did not cease to be outrageous for want of an actual assault or touch; courts must examine the broader probabilities, not dictionary meanings of 'molestation', and must deal with such cases with sensitivity.
- Courts must give due regard to international conventions and norms such as CEDAW when construing domestic law where there is no inconsistency. The removal from service was commensurate with the misconduct and was restored.
Why it matters
The judgment applies the Vishaka definition of sexual harassment in a service case and holds that physical contact is not necessary for it. It states that sympathy for the superior officer is misplaced and that reducing punishment in such cases demoralises working women, and it restates the limits of judicial review over findings and penalties in disciplinary proceedings.
In the Court's words
Copied from the official judgment; each passage links to its page.
“An analysis of the above definition, shows that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her.”
“Any action or gesture, whether directly or by implication, aims at or has the tendency to outrage the modesty of a female employee, must fall under the general concept of the definition of sexual harassment. The evidence on the record clearly establishes that the respondent caused sexual harassment to Miss X, taking advantage of his superior position in the Council.”
“They must examine the entire material to determine the genuineness of the complaint. The statement of the victim must be appreciated in the background of the entire case. Where the evidence of the victim inspires confidence, as is the position in the instant case, the courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy has no relevance.”
“Once findings of fact, based on appreciation of evidence are recorded, the High Court in Writ Jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court.”
Provisions interpreted
Related judgments
- Follows Vishaka v. State of Rajasthan (1997)“In Vishakas case (supra), a definition of sexual harassment was suggested.” (page 9)
Case and bench
- Parties
- Apparel Export Promotion Council v. A.K. Chopra
- Case
- Appeal by special leave from the Delhi High Court (number not printed in the file)
- Decided
- 20 January 1999
- Bench
- Dr. Anand, CJI, V.N. Khare
- Opinions
- Judgment delivered by Dr. Anand, CJI. No separate opinion appears in the file.
Questions on this case
2 questions in live Law Maker papers mention this case. Practise them with the landmark judgments questions.