Delhi High Court on compulsory retirement and ‘welcome’ sexual advances

compulsory retirement

In a judgement dated 25th November, 2019, the Delhi High Court in the case of Ajay Tiwary vs University of Delhi & Ors. upheld the compulsory retirement of the Petitioner and rejected the Petitioner’s contention that it would not be an act of sexual harassment if the student had allegedly consented to any acts.

FACTS:

On 9th September, 2008, “M” (Complainant), an MPhil student in the Department of Hindi in the University, addressed a complaint, to the Chairman, Apex Committee, Women Development Centre in the University, alleging that, over a period of one and a half to two years prior thereto, the Petitioner (a teacher), along with two other faculty members, had been exploiting her “physically, mentally and educationally”. It was specifically alleged, by “M”, in her complaint, that, during their journey to the University, and back home, the Petitioner used to pass sexually charged remarks. She further alleged that, at the Metro station, the Petitioner, on finding himself alone with her in the elevator, used to subject her to forcible unwelcome physical contact. She also alleged that, while travelling with her in his car, the Petitioner submitted her to inappropriate physical contact, which she sought to rebuff. Over a period of time, according to “M”, the intensity of the physical advances, of the Petitioner towards her, progressively increased, and the Petitioner also threatened “M” that, were she to resist his advances, he would ensure that she failed her examination. According to the complaint, she, out of fear, “repeatedly engaged” the Petitioner “in sexually demeaning talks”. The complaint also referred to various text messages, addressed by the Petitioner, to her, which, according to her, were sexually coloured.

A Sexual Harassment Complaints Committee (“SHCC”) was convened by the University in response to her complaint in accordance with the ordinances applicable to the University at the time. The University had a three-tier hierarchy to deal with cases of sexual harassment i.e. Universal Units Complaints Committee (UUCC), Apex Complaints Committee (ACC) and Executive Committee (EC). Alleging that the SHCC had misbehaved, “M” wrote to the vice chancellor requesting that her complaint may be adjudicated by ACC. Acting on her request, the Vice Chancellor convened a Sub-Committee under the ACC to inquire into the complaint.

Eventually, during the course of the inquiry before the ACC, the Petitioner objected to the inquiry on various procedural grounds such as – (i) He was not provided with relevant copies of text messages and other supporting documents submitted by “M”, (ii) He did not get an opportunity to cross-examine “M” in person, (iii) He did not get a chance to place oral and documentary evidence on record and (iv) by the virtue of ACC examining the complaint, the Petitioner had lost his valuable right of appeal to the ACC. Additionally, he advanced that the definition of the term sexual harassment included the term “unwelcome” advances. He alleged that in his case, “M” had provoked him into indulging in sexually charged conversations and text messages and because of that, as per the definition, his acts did not fall under the purview of sexual harassment. He claimed that even though, on several occasions, he had himself initiated and indulged in sexually coloured behaviour with “M”, he did so only when provoked.

Additionally, in order to protect the anonymity of the Complainant and in accordance with the Ordinances applicable, a request for physical cross examination of the Complainant by the Petitioner was rejected and, instead, he was requested to submit a written questionnaire that the Complainant would answer. The Complainant responded to the questionnaire with pointed allegations against the Petitioner. The Petitioner, however, apprehended that the fact that Sub-Committee was carrying out inquiry in a summary fashion impeded his rights to present his case before an impartial body.

The sub-committee, however, submitted a report which found the Petitioner guilty of sexual harassment and forwarded the same to ACC. The ACC recommended punishment by (i) demoting him with reduction in salary, (ii) debarring him from holding any administrative position, or position of authority in the University, for the remainder of his service, (iii) debarring him from membership of all selection committees for the remainder of his service and (iv) debarring him from being appointed as research supervisor in future.

The Petitioner, being aggrieved by the findings, requested the Vice Chancellor for a fresh inquiry into the matter after which the recommendations of the ACC were placed before the EC of the University. Eventually, after considering all the material on record, the EC concluded, vide a Memorandum dated 08th July, 2011 decided to compulsorily retire the Petitioner with effect from 01st July, 2011.

The Petitioner, being aggrieved by such Memorandum approached the Delhi High Court by way of present Petition.

PETITIONER’S CONTENTIONS

HELD

With regards to sexual harassment –

Talking about how the definition of sexual harassment is inclusive in nature and would not only include conduct conforming to the circumstances outlined in the definition, but also any other conduct as would be understood, commonly, to constitute “sexual harassment”, the Court specifically observed that, “(the counsel for the Petitioner), in my view, has confused the concept of “unwelcome” acts, with acts done with the consent of the other party. “Consent” is essentially a physical act. Consent may either be express or implied. Conscious failure to put up a resistance, to an act which is being committed, may indicate consent. At all times, however, the issue of whether the alleged victim of an act, consented, or did not consent, to the doing thereof, would have to be gauged on the basis of the manner in which the victim acted, herself or himself. It is precisely for this reason that “consent” itself, is rarely a defence to an act of oppression or assault. “Consent” may become a defence, where it is free. This is for the obvious reason that a victim of an assault, or an act of oppression, may consent to the doing thereof, owing to circumstances beyond the victims control, which may partake of coercion. Consent, given under coercion, or without volition, is no consent at all.

With regards to the power dynamics between the student and teacher relationship –

The relationship between student and teacher is sacred. It partakes of divinity. The guru stotram of Adi Sankaracharya teaches us that the guru (teacher) embraces, within his form, the holy trinity of Brahma, Vishnu and Maheshwara. The poet-saint Kabir, in a elebrated couplet, declares that obeisance to the guru (teacher) takes precedence, even over salutations to the Almighty, as it is only through the guru, that one aspires to God………So sacred, therefore, is the student-teacher relationship, that the slightest sexual tinge, therein, indelibly tarnishes the relationship, and consigns it to profligacy.” TheCourt further observed that, “viewed thus, in the opinion of this Court, there can never be any question of a teacher seeking to justify having committed acts, admittedly of a sexual colour and connotation, towards a student, seeking to urge, in his defence, that the acts were not “unwelcome”. The very idea, in the opinion of this Court, is preposterous, and bordering on absurdity. In the opinion of this Court, it is completely foreclosed, to a teacher, who has made sexually coloured remarks to his student, to urge that the remarks were not “unwelcome” and that, therefore, he cannot be accused of “harassment”. The Court observed that any conduct of sexual harassment between a student and a teacher, is completely proscribed, morally as well as legally. Any such conduct, therefore, if committed or exhibited, can never be defended on the ground that the conduct was not unwelcome to the student. It is not, therefore open to a teacher, accused of sexual harassment towards a student, by making lewd, or sexually coloured remarks, or exhibiting other conduct having sexual connotations, to urge, in his defence, that the student welcomed the acts,

The Court further held that, it was irrelevant in this context if the student was being thought by that particular teacher or not. A teacher is loco parentis (like a parent) to all the students of the University.

With regards to the transfer of the case from UUCC to ACC, the Court observed that Clause 4 of the “Procedure to be followed”, in dealing with complaints of sexual harassment, clearly states that the Vice-Chancellor could refer any complaint to any of the Committees including the Apex Committee.

The Petition was, therefore rejected and the Memorandum ordering his compulsory retirement was upheld.