BEFORE THE

HON’BLE SUPREME COURT OF INDIA

Civil Appellate Jurisdiction
Civil Appeal of 2019
Arising
Under Article 133 of the Constitution of India

In the matter of
J. VYAS ….……Appellant

v.

SMRITHI ...……..Respondent

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT

Most respectfully submitted to the Hon’ble Chief Justice of India and his
Companion Judges of the Hon’ble Supreme Court of India
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS

INDEX OF AUTHORITIES

 BOOKS AND COMMENTARIES

 STATUTES
 JUDICIAL DECISIONS
 LEGAL DATABASES

STATEMENTS OF JURISDICTION

STATEMENT OF FACTS

QUESTIONS PRESENTED

SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED

 The Civil Appeal Filed By The Appellants Under Art 133 Of The Constitution Of

India Is Maintainable.

 There Has Been No Violation Of The Guidelines From Visakha v. State Of

Rajasthan.

 The Punishment Given By The High Court Is Compensatory To The Respondent.

PRAYER

2
 LIST OF ABBREVIATIONS

& - And

A.P - Andhra Pradesh

AIR - All India Reporter

All - Allahabad

Anr. - Another

App.cas - Appeal cases

Art. - Article

Assn. - Association

Bom. - Bombay

Cal - Calcutta

Edtn. - Edition

Guj - Gujarat

Hon’ble - Honourable

i.e. - That is

ILR - Indian law report

Ker - Kerala

Mad - Madras

MP - Madhya Pradesh

n. - Note

No. - Number

Ors. - Others
3
P. - Page

Pat - Patna

Pun - Punjab

Pvt. - Private

Raj - Rajasthan

S.,s. - Section

SC - Supreme Court

SCC - Supreme Court Cases

SCR - Supreme Court Reports

SCW - Supreme Court Weekly

Supp SCC - Supplement, Supreme Court

Cases

v. - Versus

vol. - Volume

WB - West Bengal

4
 INDEX OF AUTHORITIES

A. BOOKS AND COMMENTARIES

 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF
INDIA (Vol.1, Lexis Nexis Butterworths, Wadhwa, Nagpur, 8th ed. 2007),
EDITED BY J. YV CHANDRACHUD, J. SS SUBRAMANI & J. BP
BANERJEE
 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF
INDIA (Vol.5, Lexis Nexis Butterworths, Wadhwa Nagpur, 8th ed. 2009),
EDITED BY J. CK THAKKER, J. SS SUBRAMANI, J. TS DDOABIA&
J. BP BANARJEE
 M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (Lexis Nexis
Butterworths, Wadhwa, Nagpur,7th ed.2014)
 RATANLAL&DHIRAJLAL’S CODE OF CRIMINAL PROCEDURE
1973, ENLARGED ED.(Wadhwa,Nagpur, 16th ed. 2004)
 RATANLAL&DHIRAJLAL’S THE LAW OF EVIDENCE,
(Wadhwa&Co., Nagpur,2004 Enlarged ed.)
 SARKAR’S LAW OF EVIDENCE, (Vol. 1&2,Wadhwa, Nagpur, 16th ed,
2008)
 C.D.FIELD’SLAW ON ADMISSIONS & CONFESSIONS (Delhi Law
House, 2nd ed. 2011)
 RATANLAL&DHIRAJLAL’S THE INDIAN PENAL CODE,(Lexis Nexis
Butterworths, Wadhwa Nagpur, Student ed. 2014) EDITED BY Dr.
VERSHA VAHINI
 KD GAUR TEXTBOOK ON THE INDIAN PENAL CODE, (Universal
Law Publishing Co., 4th ed. 2006

5
B. STATUTES
 THE INDIAN PENAL CODE, 1860
 CODE OF CRIMINAL PROCEDURE, 1973
 THE INDIAN EVIDENCE ACT, 1860
 THE CONSTITUTION OF INDIA, 1950
C. JUDICIAL DECISIONS

 Nar Singh v. State of U.P, AIR 1954 SC 457

 Sidheshwar Ganguly v. State of West Bengal, AIR 1958 SC 143

 Uma Narain v. K. Karson, AIR 1971 SC 759

 Union of India v. Shiromani Gurudwara Prabandhak Committee, (1986) 3 SCC

600

 State of U.P v. Raj Nath, AIR 1983 SC 187

 Muthu Naiker v. State of T. N., AIR 1978 SC 647

 Sukh Deo Narain v. State of Rajasthan, (1984) 4 SCC 235

 A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602

 Medha Kotwal Lele & others Vs. Union of India

 Vishaka and ors v. State of Rajasthan, (1997) 6 SCC 241

 Government of Tamil Nadu v. A. Rajapandian (1995)1 SCC 216

 Medha Kotwal Lele & others Vs. Union of India

 Apparel Export Promotion Council v. A.K. Chopra (AIR 1999 SUPREME

COURT 625)

6
 Rupan Deol Bajaj and Anr v. K.P.S. Gill, (1995) 6 SCC 194.

 Divender Singh v. Hari Ram, 1990 CrLJ 1845 HP

 Ramdas v. State of W.B., AIR 1954 SC 711

 Ram Assrey v. State of U.P., 1990 CrLJ 405

 Asharaf Khan v. State of M.P., 2013 CrLJ 1286 (MP)

 Union of India v. Hafiz Mohd., AIR 1975 Del 77

 D.C. Works Ltd. v. State of Saurashtra, AIR 1957 SC 264

 Nar Singh v. State of U.P, AIR 1954 SC 457

 M.M.B. Paulo v. Avira, AIR 1959 SC 31

 Ganga Bishan v. Jai Narain, (1986) 1 SCC 75.

D. LEGAL DATABASES
 www.manupatra.com
 www.lexisnexisacademic.com
 www.scconline.com
 www.indiakanoon.com
 www.legalcrystal.com
 www.thebluebook.com

7
 STATEMENT OF JURISDICTION

THE APPELLANTS HAVE APPROACHED THE HON’BLE SUPREME COURT OF

INDIA BY FILING A SPECIAL LEAVE PETITION UNDER ARTICLE 133 OF THE
CONSTITUTION OF INDIA, 1950 AND HEREBY HUMBLY SUBMIT THE LEGAL
MEMORANDUM OF THE PRESENT CASE FILED.

8
 STATEMENT OF FACTS

Respondent, Smrithi, was employed as a teacher in an Army Public School. She was
subsequently appointed as Principal. The Appellant, J. Vyas was the Chairman of the
school and the other appellant Rajender, was the Vice-Chairman. He while on official
duty at a distant place, wrote a letter to Respondent No. 1 expressing that he had “fallen
in love with her”. Apart from admiring Respondent No. 1’s qualities and beauty,
Rajender concluded the letter with the following invitation of help to her, “may I extend
may hands towards you and hold your hands lightly and ask you to lean on my shoulder
whenever you need me. It will be a great pleasure.” The respondent and her father
complained to the appellant, J. Vyas, but he did not take any positive action to redress
Respondent’s grievance. Apart from this letter, Respondent also alleged that Rajender
was making advances towards her.

Respondent’s Services were terminated after receipt of two anonymous complaints.

Accordingly the matter came in to the notice of High Court of A.P. by a petition filed by
the respondent.

The Court held that it was a clear – cut case of sexual harassment and therefore directed
Army Authorities to take disciplinary action against appellant J. Vyas and Rajender. It
however found that the school authorities had not constituted a complaints committee, as
directed in Visakha v. State of Rajasthan, AIR 1997 SC 3011, to look into the grievance
made by Respondent and held that she felt humiliated not only by reason of the letter that
according to her, Rajender also made advances towards her. She had, therefore, a
reasonable ground to believe that her objection thus, would cause disadvantage to her in
connection with her employment or work, including her recruitment or promotion or
creating a hostile working environment. According to her, adverse consequences visited
as her services have been terminated. The management of school was found guilty of
violating guidelines issued in Visakha Case and the management was directed to pay and

9
bear all the cause for the first respondent including the counsel’s fee of Rs. 50,000/-
considering the writing of a sensuous letter to a female employee, expressing love to her,
admiring her qualities and beauty and extending unsolicited help amounts to sexual
harassment.

Aggrieved by the decision of the High Court, J.Vyas-Chairman of the school preferred an
appeal.

10
 STATEMENT OF ISSUES

I. WHETHER THE CIVIL APPEAL FILED BY THE APPELLANTS UNDER ART 133
OF THE CONSTITUTION OF INDIA IS MAINTAINABLE ?

II. WHETHER THERE HAS BEEN A VIOLATION OF THE GUIDELINES FROM

VISAKHA V. STATE OF RAJASTHAN?
III. WHETHER THE PUNISHMENT GIVEN BY THE HIGH COURT IS COMPENSATORY
TO THE RESPONDENT?

11
 SUMMARY OF ARGUMENTS

I. THE CIVIL APPEAL FILED BY THE APPELLANTS UNDER ART 133 OF

THE CONSTITUTION OF INDIA IS MAINTAINABLE.

According to Article 133 of the Constitution of India, 1950, an appeal lies to the

Supreme Court from any judgment, final order, or sentence in a civil proceeding

of a High Court and is a fit case for appeal when the High Court certifies it so

under Article 134 A-

a. That the case involves a substantial question of law of general importance; and

b. That in the opinion of the High Court the said question needs to be decided by

the Supreme Court.

In the instant case both the clauses are a perfect fit as for the appellant to prefer an

appeal before this Hon’ble Court

II. THERE HAS BEEN NO VIOLATION OF THE GUIDELINES FROM

VISAKHA v. STATE OF RAJASTHAN.

In the instant case, Rajender while on official duty at a distant place, wrote a letter

to Respondent expressing that he had “fallen in love with her”. Apart from

admiring Respondent’s qualities and beauty, Rajender concluded the letter with

the following invitation of help to her, “may I extend may hands towards you and

hold your hands lightly and ask you to lean on my shoulder whenever you need

me. It will be a great pleasure. Rajender has never once approached Smrithi

physically or in person, conveying his feelings or desires for her. All he has done
12
 was write a letter to do the same, which is normal considering the age and status of

both the accused and the victim. Rajender’s letter was of personal nature and need

not be exploited further. During the inquiry by the institution, Rajender was not

part of any sort of physical, or sexual teasing as found by the institution, and the

letter was not taken into highlight because it was a personal matter between the

respondent and the Accused.

III. THE PUNISHMENT GIVEN BY THE HIGH COURT IS

COMPENSATORY TO THE RESPONDENT.

The management of school was pronounced guilty of violating guidelines issued

in Visakha Case and the management was directed to pay and bear all the cause

for the first respondent including the counsel’s fee of Rs. 50,000/- considering the

writing of a letter to a female employee, expressing love to her, admiring her

qualities and beauty and extending help. Given the nature of the letter, it was

purely personal in nature and does not amount to sexual harassment. The counsels

for the Appellant, therefore submit that the punishment given by the High Court is

overly compensatory in nature for a victim claiming sexual harassment because of

a letter written by an employee of the institution. The very fact of taking

compensation from the institution over such a baseless allegation is derogatory

and completely unjust towards the institution.

13
 ARGUMENTS ADVANCED

I. THE CIVIL APPEAL FILED BY THE APPELLANTS UNDER ART 133 OF

THE CONSTITUTION OF INDIA IS MAINTAINABLE.

According to Article 133 of the Constitution of India, 1950, an appeal lies to the

Supreme Court from any judgment, final order, or sentence in a civil proceeding

of a High Court and is a fit case for appeal when the High Court certifies it so

under Article 134 A-

c. That the case involves a substantial question of law of general importance 1;

and

d. That in the opinion of the High Court the said question needs to be decided by

the Supreme Court2.

In the instant case both the clauses are a perfect fit as for the appellant to prefer

an appeal before this Hon’ble Court, wherein, the Substantial question of law is

whether a personal letter from the accused to the victim can be treated as

sexual harassment at workplace.

1
Uma Narain v. K. Karson, AIR 1971 SC 759, See also, Union of India v. Shiromani Gurudwara

Prabandhak Committee, (1986) 3 SCC 600

2
Sidheshwar Ganguly v. State of West Bengal, AIR 1958 SC 143, State of U.P v. Raj Nath, AIR 1983 SC

187

14
 The Courts in cases of sexual harassment in workplaces, filed by workers

against their employers are often dismissed by the judges, which shows that the

standard for harassment under the law is high. By virtue of the Vishaka

Guidelines3, the following things constitute as sexual harassment in workplace:

“For this purpose, sexual harassment includes such unwelcome sexually

determined behaviour (whether directly or by implication) as:

(a) physical contact and advances;

(b) a demand or request for sexual favours;

(c) sexually-coloured remarks;

(d) showing pornography;

(e) any other unwelcome physical, verbal or nonverbal

conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim

of such conduct has a reasonable apprehension that in relation to the victim's

employment or work whether she is drawing salary, or honorarium or

voluntary, whether in government, public or private enterprise such conduct

can be humiliating and may constitute a health and safety problem.”

The letter written by the accused to the victim did not constitute any relevant

instances which would insinuate sexual harassment on the victim. The letter

3
Vishaka and ors v. State of Rajasthan, (1997) 6 SCC 241

15
 was a personal matter between the victim and the accused and no further

advances were made on the victim by the accused. Therefore the counsels for

the respondent humbly submit that, the appellant being the employer of the

victim did not find any lawful reason as to reprimand or report a case on the

accused, Rajender, for a case of sexual harassment on the respondent.

The word ‘needs’ suggests that there has to be necessity for a decision by

Supreme Court on the question and such necessity can be said to exist when,

for instance, two views are possible regarding the question and the High Court

takes one of the said views. It is thus apparent that there must be some

imperative necessity arising from the fact and circumstances of the case before

the Court can certify it to be fit, one prefer an appeal to the Supreme Court4.

In the instant case, this substantial question of law is of utmost importance so

as to decide the liability of the accused. The question ‘needs’ to be discussed in

the court of law as, it is of prime importance and can give different views as to

the contents of the letter. However, in lieu of the guidelines provided in the

Vishaka case law, the letter does not contain such qualifications to be noted as

sexually harassing5.

4
Union of India v. Hafiz Mohd., AIR 1975 Del 77
5
Vishaka and ors v. State of Rajasthan, (1997) 6 SCC 241

16
 In the instant case, the appellant has been transfixed in a case, for which he is

not even a party to. The employer needs to be involved only if such sexual

harassment occurs and is of such extent which threatens the safety and security

of the victim and her position. The victim, in the instant case, is herself not of

chaste character as complaints have been received against her.

The counsels for the appellant submit that, the appellant has in fact inquired

into the situation with utmost care and caution and found out that this being a

personal matter need not be involved into; and therefore the sentence of

compensation against him by the High Court needs to be corrected for want of

justice.

Under Article 133, the Supreme Court does not interfere with the concurrent

findings of fact by the trial court and high Court unless it is shown that

important and relevant evidence has been overlooked, or unless it is fully

unsupported by evidence on record6. It is left to the judicial discretion of the

Court as to when it will interfere in the concurrent findings of fact of trial

Court and High Court. No rigid rule can be laid down which will cover all

cases.

In the instant case, the Supreme Court must interfere with the decisions of the

High Court as important and relevant facts regarding the evidences have been

6
D.C. Works Ltd. v. State of Saurashtra, AIR 1957 SC 264

17
 overlooked. It is to be taken into the view of the Court that, the only evidence

regarding the allegation of the victim is a letter given by the accused to the

victim. The victim has not instituted any criminal cases against the accused.

She is only concerned with the compensation to be received from the

institution on the lack of a complaint cell. The subject matter being a personal

letter, cannot be taken up by the employer7 as no further advances were made

by the accused towards the victim, or none have been complained of by the

victim. Therefore, the Court must look into the relevancy of this letter to be

constituted as an evidence of sexual harassment.

In the case of M.M. B. Catholics v. T. Paulo Avira8, the Supreme Court

interfered with the findings of fact made by the High Court on the ground that

the conclusions of the High Court were based on a misleading evidence and

that important material evidence was ignored.

In the instant case too, although the case is reported as a prima facie case of

sexual harassment, the evidences need to be looked into with utmost caution

and the responsibility and liability of the appellant with regard to the letter

needs to be assessed. Thus the counsels for the appellants humbly state that,

taking into consideration the substantial question of law and the need to

7
Nar Singh v. State of U.P, AIR 1954 SC 457
8
M.M.B. Paulo v. Avira, AIR 1959 SC 31, Ganga Bishan v. Jai Narain, (1986) 1 SCC 75.

18
 address it, this Hon’ble Court may kindly maintain this petition for want of

justice to the appellant.

II. THERE HAS BEEN NO VIOLATION OF THE GUIDELINES FROM

VISAKHA v. STATE OF RAJASTHAN.

Sexual harassment has been identified as a term which is difficult to define as it

involves a range of behaviors9. Efforts have been made at both national and

international levels to define this term effectively. Often the term is subjected to

different interpretations. Some believe that it is better not to mingle with female

colleagues so that one does not get embroiled in a sexual harassment complaint.

The reality of sexual harassment incidents at the workplace is that there is more to

worry about people misusing the law, than under-reporting.

In 1997, in the landmark judgment of Vishaka and ors v. State of Rajasthan 10, the

Supreme Court of India defined sexual harassment at the workplace, pronounced

preventive, prohibitory and redress measures, and gave directives towards a

legislative mandate to the guidelines proposed.

Sexual Harassment includes many things11:

9
Medha Kotwal Lele & others Vs. Union of India
10
Vishaka and ors v. State of Rajasthan, (1997) 6 SCC 241
11
Government of Tamil Nadu v. A. Rajapandian (1995)1 SCC 216

19
 1. Actual or attempted rape or sexual assault.

2. Unwanted deliberate touching, leaning over, cornering or pinching.

3. Unwanted sexual teasing, jokes, remarks or questions.

4. Whistling at someone.

5. Kissing sounds, howling and smacking lips.

6. Touching an employee’s clothing, hair or body.

7. Touching or rubbing oneself sexually around another person.

In the instant case, Rajender while on official duty at a distant place, wrote a letter

to Respondent expressing that he had “fallen in love with her”. Apart from

admiring Respondent’s qualities and beauty, Rajender concluded the letter with

the following invitation of help to her, “may I extend may hands towards you and

hold your hands lightly and ask you to lean on my shoulder whenever you need

me. It will be a great pleasure.”12 Rajender has never once approached Smrithi

physically or in person, conveying his feelings or desires for her. All he has done

was write a letter to do the same, which is normal considering the age and status of

both the accused and the victim. Rajender’s letter was of personal nature and need

not be exploited further. During the inquiry by the institution, Rajender was not

part of any sort of physical, or sexual teasing as found by the institution, and the

12
MOOT PROBLEM

20
 letter was not taken into highlight because it was a personal matter between the

respondent and the Accused.

In Medha Kotwal Lele v. Union of India13, in tandem to the Vishaka guidelines, it

was held that

“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:

(a) Express prohibition of sexual harassment as defined above at the workplace

should be notified, published and circulated in appropriate ways.

(b) The rules/regulations of government and public sector bodies relating to

conduct and discipline should include rules/regulations prohibiting sexual

harassment and provide for appropriate penalties in such rules against the

offender.

(c) As regards private employers steps should be taken to include the aforesaid

prohibitions in the standing orders under the Industrial Employment (Standing

Orders) Act, 1946.

13
Medha Kotwal Lele & others Vs. Union of India, Apparel Export Promotion Council v. A.K. Chopra

(AIR 1999 SUPREME COURT 625), Rupan Deol Bajaj and Anr v. K.P.S. Gill, (1995) 6 SCC 194.

21
 (d) Appropriate work conditions should be provided in respect of work, leisure,

health and hygiene to further ensure that there is no hostile environment towards

women at workplaces and no woman employee should have reasonable grounds to

believe that she is disadvantaged in connection with her employment.”

The Army Public School in due with the substance and spirit of Vishaka, has

implemented the guidelines formed therein to make available safe and secure

environment to women at the School, in every aspect and thereby enabling the

working women to work with dignity, decency and due respect.

While implementing the guidelines under Vishaka, the management had taken

care of the fact that if the alleged harasser, i.e., Rajinder, had been found guilty,

the victim, i.e., Smrithi is not forced to work with or under him and possibly

dismissed his services or transferred him to another branch of the institution.

Therefore the Counsels for the Appellant humbly submit that there has been no

violations of the Vishaka guidelines by the appellant or the management of his

institution and therefore he should not be held guilty for any act of his subordinate,

vicariously or otherwise.

III. THE PUNISHMENT GIVEN BY THE HIGH COURT IS

COMPENSATORY TO THE RESPONDENT.

The management of school was pronounced guilty of violating guidelines issued

in Visakha Case and the management was directed to pay and bear all the cause

for the first respondent including the counsel’s fee of Rs. 50,000/- considering the
22
 writing of a letter to a female employee, expressing love to her, admiring her

qualities and beauty and extending help. Given the nature of the letter, it was

purely personal in nature and does not amount to sexual harassment. The counsels

for the Appellant, therefore submit that the punishment given by the High Court is

overly compensatory in nature for a victim claiming sexual harassment because of

a letter written by an employee of the institution. The very fact of taking

compensation from the institution over such a baseless allegation is derogatory

and completely unjust towards the institution.

Beijing Declaration and Platform for Action14, inter alia, states,

“Violence against women both violates and impairs or nullifies the enjoyment by

women of human rights and fundamental freedoms……. In all societies, to a

greater or lesser degree, women and girls are subjected to physical, sexual and

psychological abuse that cuts across lines of income, class and culture”.

The punishment under S. 354A15 is for a man committing the following acts:

“(i) Physical contact and advances involving unwelcome and explicit sexual

overtures; or

14
United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference

on Women, 27 October 1995, available at: https://www.refworld.org/docid/3dde04324.html [accessed 23

June 2019]
15
Divender Singh v. Hari Ram, 1990 CrLJ 1845 HP, Ramdas v. State of W.B., AIR 1954 SC 711, Ram

Assrey v. State of U.P., 1990 CrLJ 405, Asharaf Khan v. State of M.P., 2013 CrLJ 1286 (MP)

23
 (ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman; or

(iv) making sexually coloured remarks;

shall be guilty of the offence of sexual harassment”

The appellant in the instant case cannot be charged under any of the above

clauses, as he has not been indulged in any kind of sexual harassment or abuse

towards the respondent and with regard to the Accused, there is only a letter given

by him to the respondent which contains his feelings of affection for him, which is

more of a personal matter between the former and the latter16. That is a case for the

respondent to deal with personally as no further advances have taken place

between them.

By virtue of S. 354 and 354A of the Penal Code, the conditions applicable and the

penalties are grave. It is evident from the facts that no such instances have

occurred to the respondent in the instant case, and it is only a case of pure

defamation and attack on the appellant17.

It is also evident, that the accused was not convicted by the High Court and only

the Appellant was accused for having no proper complaint mechanism.

The Counsels for the Appellant humbly submit that since the High Court has not

found the accused as guilty, which was the same finding of the Institutional

16
MOOT PROBLEM
17
MOOT PROBLEM

24
inquiry, the appellant should be given a fair chance of hearing and reduce the

compensation amount or the sentence to provide justice to the appellant.

25
 PRAYER

Therefore, in the light of issues raised, arguments advanced and authorities submitted, it

is humbly submitted that this court may be pleased to declare and adjudge that

 The Civil Appeal Filed By The Appellants Under Art 133 Of The Constitution Of

India Is Maintainable.

 There Has Been No Violation Of The Guidelines From Visakha v. State Of

Rajasthan.

 The Punishment Given By The High Court Is Compensatory To The Respondent.

And pass any other order that it deems fit in the interest of justice equity and good

conscience.

SD/-

Counsels for the Appellants

26