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TMI Blog2002 (11) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, MANU/SC/0786/1997 : AIR1997SC3011 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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, MANU/RH/0007/1962). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scripts 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, MANU/SC/0034/1977 : [1978]1SCR742 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 resor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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