Sunil Kumar vs Delhi Development Authority
2009 Latest Caselaw 1842 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) NO.19629/2005

%                      Date of Decision: 04.05.2009

Sunil Kumar                                            .... Petitioner

                       Through Ms. Monika Kappor, Advocate

                                 Versus

Delhi Development Authority                            .... Respondent

                       Through Nemo

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether reporters of Local papers may be
      allowed to see the judgment?                           YES
2.    To be referred to the reporter or not?                 YES
3.    Whether the judgment should be reported in
      the Digest?                                            YES


V.K.SHALI, J. (Oral)

1. The petitioner in the instant writ petition has challenged two

orders dated 20th July, 2004 and 29th October, 2004 passed in ID No.

144/2003 in case titled Sunil Kumar Vs. M/s Delhi Development

Authority by learned Labour Court No. VII. By virtue of the first order,

the learned Labour Court has held that the inquiry which was held

against the petitioner was fair, proper and in accordance with principles

of natural justice.

2. So far as the award dated 29th October, 2004 is concerned, the

learned Labour Court upheld the imposition of punishment of dismissal

on the petitioner.

3. Briefly stated the facts leading to the filing the present writ are

that the petitioner/workman was employed as a Sweeper with the

respondent/management since January 1980. He worked till 22nd

August, 1990. On 22nd August, 1990 it was alleged against the

petitioner/workman that he tried to molest one lady officer Ms. Nivedita

Pandey who was standing near the window. The petitioner had come

to the window purportedly trying to close the same on the pretext there

being heavy rain and touched her. Ms. Nivedita Pandey raised an alarm

on account of which the petitioner was apprehended. The defence of

the petitioner/workman was, since the window was jammed, therefore,

the touching of Ms. Nivedita Pandey was totally accidental and

unintentional. The petitioner was put under suspension and

chargesheet was given and an inquiry was held and the Inquiry Officer

came to a conclusion that the charge of molestation is not established

against the petitioner while as the other three charges against him were

proved. The petitioner challenged the finding of the Inquiry Officer

before the learned Labour Court by getting a reference made before the

appropriate government. The learned Labour Court framed an issue

whether a fair and a proper inquiry was conducted in accordance with

the principles of natural justice against the petitioner and it handed

down a finding against the petitioner. The learned Labour Court

recorded four charges in the inquiry report on the basis of which the

inquiry was conducted were as under:

(i) Molestation of lady officer named Mrs. Nivedita Pandey by Sh. Sunil during his duty hours at 3rd Floor, Vikas Minar, near the window in the hall.

(ii) The screaming shouts of Mrs. Pandey were heard by some staff members who came running to the palce of incident.

(iii) In the presence of these staff members Sh. Sunil begged for forgiveness for his misbehavior, misconduct and misdeed.

(iv) Sh. Sunil violated the conduct rules by this act and later on absconded from the official duty immediately after this incident.

4. The learned Labour Court after examining the entire gamut of

facts came to the conclusion that there is no perversity in the report of

the Inquiry Officer or any violation of principle of natural justice,

accordingly, the issue was decided in favour of the management. By

the second order the question of quantum of compensation was also

decided by the learned Labour Court on 29th October, 2004 and it was

held that keeping in view the conduct of the petitioner the imposition of

punishment of dismissal against the petitioner was not

disproportionate. The learned Labour Court also referred the

authorities of the Apex Court in order to take the support that the

Courts should generally not interfere with the quantum of punishment

once the charge is proved. Reliance in this regard was placed in case

titled Devender Swami Vs. Karnataka State Road Transport

Corporation 2002 AIR (SC) 2545 and Union of India Vs. Narain Singh

2002 (4) SC 207.

5. I have heard the learned counsel for the parties. The contention

of the learned counsel for the petitioner has been two fold, firstly that

the petitioner had been employed with the respondent/management

since 1980 and had unblemished service record. The incident in

question was a mere misunderstanding in as much as it was raining

outside and the petitioner who tried to close the window accidently

touched the lady officer which was construed as an attempt to

molestation. It was contended that a Sweeper who is a Class-IV

employee could hardly make an attempt or think of molesting a

superior officer working in the same organization. Keeping in view

these facts, it was urged that the punishment of dismissal which was

imposed on the petitioner was grossly disproportionate.

6. It was also contended that if one sees the report of the Inquiry

Officer the charge of molestation is not established, and therefore, even

on that score also a lenient view ought to be taken and punishment

commensurate with the misconduct ought to have been imposed.

7. This was contested by the learned counsel for the respondent who

placed reliance on Apparel Export Promotion Council Vs. A. K. Chopra

(1999) 1 SCC 759 wherein the Court dealt with a case of sexual

harassment of a female employee of the Council. It was held that while

dealing with the case of a sexual harassment at the work place the

Court does not have to consider the sexual assault or molestation in the

manner as if it is dealing with a criminal matter. The case must be

dealt with sensitivity and sympathy. The Court had also upheld the

order of removal of the petitioner from service on the charges of sexual

harassment.

8. The learned counsel for the petitioner tried to distinguish the

facts of the said case on the ground by urging that in the case reported

the offender who was alleged to have indulged in sexual harassment

was a superior officer and against the victim who was only a typist cum

clerk. While as in the instant case the victim was a superior officer and

the petitioner was only a Class-IV employee, and therefore, the Class-IV

employee could hardly dream of molesting or attempting to molest the

victim, who is far superior in position.

9. I have considered the respective submissions of the counsel for

the parties and perused the record. The contention of the learned

counsel for the petitioner that merely on account of the fact that he had

an unblemished service record for more than a decade did not give him

a license to indulge in acts of molestation or conducting himself in a

manner which is obviously to create a scare in the minds of female

official be that of junior or senior that the offender is trying to outrage

her modesty or is making sexual advances. In the instant case, this is

precisely what the petitioner has done despite being a Class-IV

employee he seemed to have lost his mental balance on account of the

factum of rain and the advantageous position of the female official being

alone in the hall he took liberty of touching under the false pretext

closing the window. It could not be said that the status of the victim or

that of the offender should make any distinction in the imposition of

punishment in case of this nature. The offender must dealt with a

stern hand so that female officials feel safe at work place to discharge

their duties.

10. I, accordingly, feel that the submissions made by the learned

counsel for the petitioner that this was not a case of molestation and

the imposition of punishment of dismissal does not hold any water.

The petitioner has shown a criminal bent of mind which deserves to be

dealt with strongly and has been actually dealt with firmly and

decisively by imposing a punishment of dismissal on him. It cannot be

said by no stretch of imagination that the punishment of dismissal

which has been imposed on petitioner is disproportionate or highly

excessive as a matter of fact imposition of punishment other than

dismissal will only show misplaced sympathy with the petitioner and

will give impetus to persons with such proclivities to indulge in acts of

outraging the modesty of female employees.

11. In Apparel Export Promotion Council Vs. A.K. Chopra (1999)

1 SCC 759 the Hon'ble Supreme Court has laid down the scope of

judicial review in following words:

"Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority."

12. Therefore, there is no infirmity, illegality, perversity in the

impugned orders, and accordingly, the writ petition of the petitioner is

without any merit and the same is dismissed.

May 4th, 2009                                       V.K.SHALI, J.
KP