Clarinda D'Souza vs Mccann Erickson India Limited
2002 Latest Caselaw 1194 Bom

JUDGMENT

S.J. Vazifdar, J.

1. The above Chamber Summons have been taken out by defendant Nos. 5, 6 and 7 and 8 respectively to have their names deleted from the plaint and proceedings of the above suit.

It is not without hesitation that I have decided to dismiss the Chamber Summons. The decision is notwithstanding my inability to disagree with the submissions of the learned counsel appearing on behalf of defendant Nos. 5 to 8 on merits. It is based entirely on the limited scope of Order 1, Rule 10(2) of the Code of Civil Procedure, 1908.

2. The plaintiff was an employee of defendant No. 1. Defendant No. 2 is the Chairman and Chief Executive Officer of defendant No. 1. Defendant No. 3 is the Senior Vice President and General Manager of defendant No. 1. Defendant No. 4 is the President and Chief Operating Officer of defendant No. 1.

Defendant No. 1 is a subsidiary of defendant No. 8. Defendant No. 8 holds over 90% shares in defendant No. I. Defendant No. 5 is the Executive Vice President Worldwide, Regional Director - Asia Pacific of defendant No. 8. Defendant No. 6 is the Worldwide Human Resource Director of defendant No. 8. Defendant No. 7 is the Vice Chairman and Chief Creative Officer and Director Global Brands as Manager of defendant No. 8.

3. The plaintiffs main grievance is, against defendant No. 2 in respect of their personal relationship which had nothing to do with either defendant No. 1 or defendant No. 8 or any of the other defendants. This is not disputed. The plaintiffs case is that she developed an intimate relationship with defendant No, 2 who pledged a life-time commitment to her. Based on certain representations, defendant No. 2 induced her to join defendant No. 1. The plaintiff was employed as the Vice President Creative Director, Bombay of defendant No. 1 on 19th July, 1996. From the plaint, documents and correspondence on record it is clear that the plaintiff is outraged with and has an enormous grievance against defendant No. 2 for cheating her by not carrying the relationship further. I should have though this to be purely a personal matter between the plaintiff and defendant No. 2. I will shortly set out the plaintiffs case against the remaining defendants and especially defendant Nos. 5 to 8 for it is that which is relevant for deciding the present Chamber Summons.

4. According to the plaintiff, from March 1997, as a result of their relationship having soured, the conduct of defendant No. 2 towards her, became nasty and unprofessional.

The plaint thereafter refers to the correspondence between the plaintiff and defendant No. 2 and the Police Complaint lodged by defendant No. 2. The same also indicates that upto this stage the grievance of the plaintiff was in respect of the personal relationship that she had with defendant No. 2. None of the other defendants come into the picture upto this stage.

5. From May 1999 and till the suit was filed, according to the plaintiff, defendant Nos. 3 and 4 upon instructions of defendant No. 2 continuously harassed her. The manner in which the plaintiff claims to have been harassed is set out in paragraph 3(i) of the Plaint which I shall set out verbatim :

"i)     Verbally abusing the plaintiff in front of office staff and her co-workers;
 

 ii)      ridiculing the plaintiff, and talking about her physical appearance and defects in front of office staff and her co-workers;  


iii) making references to the plaintiffs sexual practice in public;  


iv) sending messages, mail with sexual contents during working hours in  the  premises  of the  defendant No.   1   Company;  making unwarranted sexual advances towards the plaintiffs in the premises of the defendant No. 1; 


v) stereo-typing the plaintiff in gender-specific roles; 
 

vi) making  and  fabricating  false  allegations  and  threatening  the plaintiff with legal actions based on those allegations; 
 

vii)    undermining the plaintiffs professional suggestions or proposals; under-grading her work inputs; marginalising her presence in the organisation as well as in the industry;
 


viii)   intimidation through the defendant No. 2's subordinates who are the plaintiffs superior officials;
 

              ix)     stripping   off  the   plaintiff   of   her  job   responsibilities   and assignments restraining her from attending important meetings, conferences etc; 
 

x)      withholding the plaintiff's salary for five months; denial of due salary raise and other promotional benefits; 
 

xi)     isolating the plaintiff from the office staff, clients and professionals from the same industry; 


xii) maligning the plaintiff and creating a hostile work environment;
 

 xiii)   failure  to  ensure  healthy  work  environment  and  eliminating hostility, retaliation, discrimination etc; 
 

xiv)   failure to stop the on-going harassment and humiliation despite the plaintiff's repeated complaints." 
 

6. Mr. Grover, the learned counsel appearing on behalf of the plaintiff fairly stated that none of these instances are attributable to defendant Nos. 5 to 8.
 

The plaint does not contain any particulars regarding the nature of the alleged "unwarranted sexual advances towards the plaintiff in the premises of defendant No. 1". That however, as I shall explain later, is not relevant for the purpose of deciding the present Chamber Summons. By a letter dated 18-4-2000 the plaintiff was transferred to Hyderabad. According to her, this order was mala fide and in itself constituted sexual harassment.

7. This brings me to the plaintiff's case against defendant Nos. 5 to 8.

8. The plaintiff has averred that she reported the conduct of defendant Nos. 2 to 4 to defendant Nos. 5, 6 and 7 who are part of the senior management of defendant No. 8. Defendant Nos. 5, 6 and 7 it is alleged, in the corporate hierarchy oversee the actions of defendant Nos. 2 to 4 who report to them. The plaintiff further states that defendant Nos. 5 to 8 "did not prevent the on-going harassment, although they had the authority and power to do so."

In paragraph 6, the plaintiff has also stated that defendant Nos. 5 to 8 directly and indirectly approved of the sexual harassment of the plaintiff, "in that the harassment.... was ratified by the defendants by not taking any disciplinary action against the actions of the defendant Nos. 2, 3 and 4 though the management of the other defendants were aware of the same."

9. I have today by a separate order allowed the plaintiff's Chamber Summons for amendment of the Plaint. It is necessary therefore while considering the present Chamber Summons to consider the plaint as amended.

In the amended plaint details of the various instructions and policy guidelines issued by defendant Nos. 8 to defendant No. 1, obviously as the holding company. There is nothing in any of these instructions or guidelines which suggest that defendant No. 8 had either the power or the authority to institute or take any disciplinary action against the employees, directors or officers of defendant No. 1. However, the plaintiff has averred that defendant No. 8 exercises inter-alia all administrative control over defendant No. 1; that in personal matters defendant No. 8 exercises control over defendant No. 1 through defendant No. 2 and defendant Nos. 5 to 7 either by reporting hierarchy or by function; that defendant No. 2 reports to defendant No. 8 through defendant Nos. 6 and 7 either by way of hierarchy or function and that defendant Nos. 5, 6 and 7 hold a position of authority in defendant No. 8 and had supervisory authority over defendant No. 2 in his capacity as C.E.O. of defendant No. 1.

Finally, it is averred that defendant Nos. 5 to 8 deliberately did not set up any enquiry in respect of her grievance against defendant No. 2 or take any corrective measures to substantiate the sexual harassment at the hands of defendant No. 2.

10. Mr. Grover submitted that the refusal of defendant Nos. 5 to 8 to set up an enquiry was contrary to Clauses 1 and 3 of "The Guidelines and Norms" prescribed by the Supreme Court in Vishaka vs. State of Rajasthan, which read as under :

1. "Duty of the employer or other responsible persons in workplaces and other institutions:

It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required."

3. "Preventive steps:

All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

This failure according to him furnished the plaintiff a cause of action against defendant Nos. 5 to 8. Mr. Grover fairly stated that the only case of the plaintiff against defendant Nos. 5 to 8 is that they did not take any disciplinary action against defendant No. 2 for the alleged sexual harassment caused by him.

11. The present Chamber Summons have been taken out for striking out the names of defendant Nos. 5 to 8 from the Plaint and proceedings under Order 1, Rule 10(2) of the Civil Procedure Code which reads as under:

10(2) "The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

12. Mr. Grover agreed that it was not his case that defendant No. 8 merely by virtue of being a holding company, is bound to take disciplinary action against the officers of its subsidiary company - defendant No. 1 - for sexual harassment or otherwise. He, submitted that it was the plaintiffs case that defendant Nos. 5 to 8 as a matter of fact had the express and/or implied authority, to conduct such an investigation into the conduct of defendant Nos. 2, 3 and 4. In the circumstances it is not necessary to consider the authorities cited by Mr. Chagla to establish that defendant No. 8 by virtue of being the holding company had no such right, authority or obligation qua the employees of defendant No. 1.

13. Mr. Grover, submitted that the Chamber Summons are not maintainable under Order 1, Rule 10(2) of the Civil Procedure Code I am unable to agree with this submission. Under Order 7, Rule 11(a) a Plaint shall be rejected where it does not disclose a cause of action. According to Mr. Grover, if an application under Order 7, Rule 11(a) is not maintainable for any reason, recourse cannot be had to any other provision for any other relief on the ground that the Plaint does not disclose a cause of action.

14. If a particular defendant has no connection with the cause of action pleaded against the other defendants he is certainly a person improperly joined entitling him to make an application to have his name struck out. One of the grounds on which such an application can be made is that the plaint discloses no cause of action against the defendant. I find nothing in Order 1, Rule 10(2) of the Civil Procedure Code which limits its scope as suggested by Mr. Grover.

15. An application may not be maintainable under Order 7, Rule 11(a) for a variety of reasons. For instance, in the present case it may not be maintainable as defendant Nos. 5 to 8 are not the only defendants. The suit against the other defendants must proceed to trial. There is no application by them under Order 7, Rule 11. In such circumstances, it has been held that the proper course is to strike out the names of the defendants against whom there is no cause of action. (see Mst. Chandani vs. Rajasthan State, ).

16. The contrary view would lead to enormous injustice to defendants against whom the plaint discloses no cause of action. They would be forced to go through a long and expensive trial only because arrayed with them are others against whom the plaint discloses a cause of action.

17. However, a plea that the plaint discloses no cause of action is essentially one on a demurrer. Such a plea ought to be accepted only when the Court comes to a conclusion that even if the averments in the Plaint are proved, the plaintiff would not be entitled to the reliefs claimed. The Court must therefore presume that the facts stated in the plaint are correct. In view of the drastic consequences of upholding such a plea, it is axiomatic that it ought to be accepted only in clear cases. Moreover, while considering an application for striking out the name of a defendant on the ground that Plaint discloses no cause of action against him, the Court ought to act with great circumspection and even greater restraint.

18. Keeping these principles in mind, I must reject the Chamber Summons insofar as they are sought to be supported on the ground that the plaint discloses no cause of action against the defendant Nos. 5 to 8.

19. The plaint for instance contains averments that defendant No. 2 made unwarranted sexual advances towards the plaintiff; that the plaintiff reported the same to defendant Nos. 5 to 8; that defendant No. 8 exercises administrative control over defendant No. 1; that defendant Nos. 5 to 7 hold a position of authority in defendant No. 8 and had supervisory authority over defendant No. 2 in his capacity as C.E.O. of defendant No. 1; that defendant Nos. 5 to 8 did not prevent the on-going harassment although they had the authority and power to do so and that defendant Nos. 5 to 8 deliberately did not set up any enquiry in respect of her grievance against defendant No. 2 or take any corrective measures.

20. If I were to assume, as I must while deciding these applications, that the allegations in the plaint are established, I would dismiss these Chamber Summons on the limited ground that it is then not such a clear case as would entail striking out the names of defendant Nos. 5 to 8 at this stage.

21. I must hasten to clarify that by this I by no means suggest that even if the plaintiff establishes the facts in evidence she will be entitled to the reliefs claimed. I have been unable to find any reported judgment on this aspect and none has been cited at the bar. This is itself therefore a question which must await the trial. I say this despite my reservations about the tenability of the plaintiffs claim.

22. Mr. J. D. Dwarkadas submitted that the plaintiff, only in order to create a cause of action and build a nexus in the alleged case of sexual harassment, has made an attempt to build up a case of command hierarchy and vicarious liability. They invited my attention to the correspondence between the plaintiff and defendant Nos. 5 to 7 in this regard.

23. The correspondence between defendant No. 5 and the plaintiff I agree, does not indicate any duty, power or authority on the part of defendant No. 5 to 7 to either investigate or take any disciplinary action against defendant Nos. 2 or any other employee of defendant No. 1. Prima-facie, atleast the correspondence indicates that the plaintiff merely vented her grievances against defendant No. 2 to defendant Nos. 5, 6 and 7 as they were senior officers in defendant No. 8. Even the letter addressed by defendant No. 5 dated 30th July, 1999 stating that he is concerned with the role and effectiveness of the plaintiff with defendant No. 1 and would undertake some investigation of his own based on the facts prima-facie, does not indicate either that he had or represented that he had, the power 01 authority to do so.

24. I also agree with Mr. Kadam, that the correspondence between the plaintiff and defendant Nos. 6 and 7 suggests even less that they had either the authority or the obligation to make such an investigation. Indeed, the correspondence does indicate that the "plaintiff sought the intervention of defendant No. 5, 6 and 7 not because she thought that they had either an obligation or the authority to take action against defendant Nos. 2, 3 and 4 but merely because of their position in defendant No. 8.

25. I also find considerable force in the submissions on behalf of defendant Nos. 5 to 8 that the record does not substantiate the plaintiff's case of any authority or duty on the part of defendant Nos. 5 to 8 or any of them to hold an enquiry as suggested. It does appear that the plaintiff has dragged defendant Nos. 5 to 8 into a controversy which really concerns only defendant No. 2 and herself. This she has done by making various averments in the Plaint which are not substantiated by the record.

26. Despite this the Chamber Summons must fail. For these arguments are directed towards the point that the plaintiff has no cause of action and not that the Plaint discloses no cause of action. The question therefore that falls for consideration is whether an application under Order 1, Rule 10(2) applies to a case where the defendant's contention is that the plaintiff has no cause of action.

27. However strong and well founded, such a view must necessarily at the stage of such an application be only prima-facie. It would therefore be neither fair nor permissible for the Court to presume that the evidence will not establish the case pleaded.

It would be setting an extremely dangerous precedent to strike out the name of a defendant under Order 1, Rule 10(2) on the ground that the plaintiff has no cause of action. I am not unmindful of the fact that while under Order 7, Rule 11(a) the power of the Court to reject the plaint is limited to cases where it does not disclose a cause of action the language of Order 1, Rule 10(2) does not expressly contain any such limitation. However, the effect of such an order is really to dismiss the claim against the defendant without permitting the plaintiff an opportunity of leading evidence to prove his case. It is a power which by virtue of its very nature must be carefully circumscribed. I would exclude from its scope the power of a Court to strike out the name of a defendant on the ground that the plaintiff has no cause of action against him.

28. Thus, however strongly I may feel against the plaintiffs case on merits, I must reject the invitation to allow the Chamber Summons and in effect non-suit the plaintiff without giving her an opportunity to go to trial.

29. Mr. Chagla also submitted that the plaintiff was guilty of having suppressed material information from the Court. In this regard, he referred to the transcript of certain telephonic conversations/messages left by the plaintiff on the 2nd defendant's recording machine. He further submitted that the evidence on record and specially the transcript, indicated that it was not at all desirable that the plaintiff should have been continued in employment with defendant No. 1 atleast in Bombay.

30. There is no doubt that the transcript and the fact of the plaintiff having left messages (the nature of which I shall come to in a moment) was extremely important material which the plaintiff ought to have produced before the Court. It is true that there is not even a reference by the plaintiff to having left such messages. It is an aspect directly and substantially relevant to the issues which arise in the suit. Mr. Grover stated that he was not aware of the same. Mr. Grover ought to have been in a position to either admit or deny the transcript. This is something which was to the personal knowledge of the plaintiff and there could be no question of her not admitting the same.

31. However, an issue of suppression of material facts and documents is not relevant while deciding an application under Order 1, Rule 10(2). It may disentitle the plaintiff to interim reliefs. It may well entail the dismissal of the suit. But it does not entitle defendant Nos. 5 to 8 to succeed in their Chamber Summons.

32. The learned counsel also submitted that the material indicated that the harassment, if any, was not by the defendants but, in fact, by the plaintiff. According to them being aggrieved with the conduct of defendant No. 2 qua their personal relationship the plaintiff resorted to the most incredible and unfortunate tactics. She followed defendant No. 2 to restaurants to embarrass him, defamed him and placed embarrassing hurdles in the course of his work. This is putting things mildly. So far as this was limited to the plaintiff and defendant No. 2 the remaining defendants are not concerned with the same. But this obviously affected the functioning of defendant No. 1 adversely. Further the plaintiff regularly left innumerable messages on the 2nd defendant's answering machine jamming it, making it impossible to receive other messages.

33. Once again the submissions on facts have considerable force. The transcripts make the most unfortunate reading. They do not contain a mere use of vulgar and bad language. They are packed with the worst, most vulgar, filthy and repulsive language. There is in fact nothing in the transcripts except vulgarity. Reproduction of even a single sentence thereof is, therefore, not possible. I may only observe that if the messages in the transcript are attributable to the plaintiff and assuming that defendant Nos. 5, 6 and 7 had the authority to take disciplinary action, any decision on their part to continue the plaintiff in employment at all would have been not just curious but highly suspicious to say the least. For the person responsible for the messages would be an undesirable candidate for employment in any organisation, in any capacity. If the contents of the transcripts are attributable to the plaintiff her conduct, I am constrained to say, indicates not merely an extraordinarily poor character but an attempt on her part to disrupt and destroy the functioning of defendant Nos. 1 and 8 and to unnecessarily harass their officers only to settle her purely personal dispute with defendant No. 2. Considering this, the response of defendant Nos. 5 to 8 has been responsible and restrained. The remedy of defendant Nos. 5 to 8 however, for reasons I have already given, is not a recourse to Order 1, Rule 10(2).

34. It is not however as if defendant Nos. 5 to 7 are without remedy. In T. Arivandandam vs. T. V. Satyapal, AIR 1977 SC 2421 the Supreme Court passed strictures against the proceedings adopted by the plaintiff. They found the plaintiff and the plaintiffs Advocate guilty of the most improper conduct. In such circumstances, the Supreme Court has laid down the course of action a Court ought to adopt. In paragraph 5, Krishna Iyer, J., speaking for the Court observed as under;

"We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif s Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, Civil Procedure Code taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, Civil Procedure Code. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage."

35. I am not concerned in the present proceedings with the disputes between the plaintiff and defendant No. 2. However, it does appear that defendant Nos. 5 to 8 have been unnecessarily dragged into the litigation. The plaint in this suit appears to be a case of clever drafting. Prima-facie, it does appear that the averments have been introduced without any factual basis, only to try and bring the case within the directions of the Supreme Court in Vishaka's case. But the plaint as amended has averments necessary to entitle the case to go to trial. Thus, though I am of the view that the suit "is a flagrant misuse of the mercies of the law in receiving plaints", the remedy of defendant Nos. 5 to 8 lies in having the suit dismissed, after an adjudication on merits. It is always open to the plaintiffs to invite the Court at the first hearing to exercise power under Order X of the Civil Procedure Code.

36. The Chamber Summons are dismissed but in the circumstances costs shall be costs in the cause.

Parties to act on ordinary copy of this order duly authenticated by the Chamber Registrar/C.S. of this Court..