SEXUAL HARASSMENT – WHETHER PHYSICAL HARASSMENT IS NECESSARY?
Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625
FACTS IN BRIEF:- The respondent was removed from his post as an employee of the appellant Apparel Export Promotion council after the relevant disciplinary authorities found him guilty of sexually harassing X, a junior female employee. He filed a writ petition before the High Court challenging his dismissal. A single judge allowed the petition, finding that the respondent’s dismissal was unjustified on the grounds that he had only tried to molest X and had not actually established any physical contact with her. The appellant was ordered to be reinstated. This was upheld by a Division Bench of the High Court. This judgment was challenged by the dismissing organisation.
JUDGEMENT: - The Supreme Court held as follows;
1. In the absence of procedural irregularity, the High Court was wrong to interfere with the findings of fact recorded by the disciplinary authorities and with the punishment which they had imposed.
It is a well-settled principle that, in exercising the power of judicial review, the court is not concerned with the correctness of findings of fact which are reasonably supported by evidence, but with the decision-making process itself.
2. Sexual harassment is a form of sex discrimination projected through direct or implied unwelcome sexual advances, requests for sexual favours and other verbal or physical conduct of a sexual nature. It is exacerbated when submission to or rejection of such conduct by the female employee may affect her employment, unreasonably interfere with her performance at work and create an intimidating or hostile working environment for her.
3. Each incident of sexual harassment in the workplace is incompatible with the dignity and honour of women and violates the fundamental rights to equality, life and liberty. In this case, the Apex court observed;
“ Each incident of sexual harassment at the place of work, results in violation of the fundamental right to gender equality and the right to life and liberty – the two most precious fundamental rights guaranteed by the Constitution of India. The contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honor of a female and needs to be eliminated and that there can be no compromise with such violations, admits no debate.”
1. Rejecting outright the stand taken by the High Court, the Supreme Court held that the respondent’s behaviour did not cease to be outrageous for want of physical contact and the observations made by the High Court to the effect that the respondent did not actually molest X because he did not establish such contact with her were highly unacceptable.
2. Consequently the Apex Court held that the respondent’s conduct offended against morality, decency and X’s modesty. It constituted an act unbecoming of the good conduct and behaviour expected from a superior employee and undoubtedly amounted to sexual harassment. Therefore, any reduction in punishment was bound to have a demoralizing effect on women employees and is a retrograde step.