In a judgment dated 27^th September 2017, the Delhi High Court in the case of Jahid Ali vs Union of India,. upheld the dismissal of the Petitioner on the ground that Petitioner had sent sexually coloured messages to his Superior Lady Officer.

FACTS:

The Petitioner, aged about 29 years, was appointed as Constable
(Nursing Orderly) in Sashastra Seema Bal (“SSB”) at 14^th SSB Jayanagar on 09.07.2012. Thereafter, he was detailed for 06^th Basic Medics Course held at MTC, SSB, Shimla w.e.f
30.06.2014 to 01.01.2015. “Dr. X” was his Superior Lady officer at SSB Shimla and also an instructor at the Training Centre who trained several officers. Essentially, Dr. X was a senior to the Petitioner who conducted training for junior officers, including the Petitioner.

On 18.08.2014, the Petitioner sent a message to Dr. X that said that, “I most like you. But I have little experience and don’t know how to express the feelings. You really fairy @ 12.” This surprised Dr. X and she immediately tried to inquire who had texted her. A series of messages were exchanged between the Petitioner and Dr. X at the end of which the Petitioner disclosed his name to Dr. X.  Eventually, Dr. X filed a complaint dated 21.08.2014 to the Commandment.

On the basis of the Complaint, an inquiry was initiated against the Petitioner. The Petitioner, in his statement of evidence, accepted that he had sent the messages willingly although his intentions were not to harass her.

On the basis of evidence, a dismissal order was passed by the Summary Force Court (appropriate authority under the service rules of SSB) on 24.12.2014 and his appeal against the same order was also dismissed vide an order dated 08.09.2015. The Petitioner challenged his dismissal through the present Writ Petition.

During the course of hearing of the Writ Petition, the Petitioner raised two contentions:

• In terms of the Rule 46 of SSB Rules, 2009, the Commanding Officer was under an obligation to consider the previous character of the accused before awarding the
  punishment of dismissal to the petitioner. It is submitted that in the Record of vidence, witness no.1, Sri Laxman Singh, DFO (M), MTC, Shimla had stated that the general discipline of the petitioner was satisfactory during the course. Even witness no.3, Rajinder Singh, ASI (GD), MTC, Shimla had stated that there was no indiscipline report against the petitioner barring the present complaint. This, according to the petitioner, should have persuaded the Commanding Officer to dismiss the charge against the petitioner in view of the Proviso (b) to Rule 46 of the SSB Rules, 2009.

• As the Petitioner had immediately accepted the fact of his sending the SMS in question, a lenient view should have been taken and the punishment of dismissal from service is totally disproportionate to the misdemeanour in question.

HELD:

The Court rejected the contentions of the Petitioner and upheld the orders of his dismissal.

The Court observed Sexual harassment at a workplace is considered a violation of women’s right to equality, life and liberty. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has been promulgated to provide protection against sexual harassment of women at workplace. This Court in the case of U.S. Verma v. National Commission for Women and Ors. 163 (2009) DLT 557 relying upon the judgment given by United States Court of Appeals in Ellison v Brady (1991) 9^th Circuit, 924 F.2d, 872, had held that the standard to be applied in such cases is not of a “reasonable man” but of a “reasonable woman”.

The Court further observed that the SMS sent by the petitioner certainly had sexual overtones and violated the decency, respect and dignity Dr. X deserved. The Court was of the opinion that the relationship between the Petitioner and Dr. X was that of a teacher and a student and, as such, it was sacred and the Petitioner had exceeded the boundary of a teacher-student relationship. Furthermore, the court observed that since the Petitioner was a part of the armed forces, where discipline was of paramount importance and the Petitioner’s act, in that context, was an act of gross indiscipline.

On the Petitioner’s contention that the punishment was disproportionate, the Court observed that, “it is well settled that the Court while exercising its jurisdiction under Article 226 of the Constitution of India, is not hearing the appeal against the decision of the Disciplinary Authority imposing punishment upon the delinquent employee. Unless the Court comes to the conclusion that the penalty imposed by the Disciplinary Authority is shockingly disproportionate to the misconduct committed by the delinquent employee, the Court has to be slow in interfering with the order of punishment which is imposed on the delinquent employee.

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Child Safety at Work & Adv. Vatsal Chorera – Legal & Compliance