Delhi High Court: Noting allegations against an employer with regard to the sexual harassment Sanjeev Sachdeva, J., expressed that,
“…instead of providing assistance to the aggrieved woman in prosecuting her complaint of sexual harassment, the Akademi has been opposing her tooth and nail and has even terminated her services pending the inquiry before the Local Committee.”
Note:
In view of Section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the petitioners name has been kept confidential and would be referred to as the “aggrieved woman” and similarly, the name of the officer against whom the complaint has been made shall be kept confidential and he would be referred to as the “Secretary”.
Questions for Determination:
(i) Whether the Secretary is an employer in terms of section 2(g) of the Act?; and
(ii) Whether the complaint of sexual harassment against the Secretary could have been made only to the Local Committee and not to the Internal Complaints Committee in terms of Section 6(1) of the Act?; and
(iii) Whether the Internal Complaints Committee was validly constituted in terms of Section 4 of the Act?; and
(iv) Whether the aggrieved woman made any complaint to the Internal Complaints Committee in terms of Section 9 of the Act?’ and
(v) If the answer to question (iv) is in the negative, then whether the report of the Internal Complaints Committee dismissing the complaint is sustainable?
(vi) Whether the non confirmation/extension of probation of the aggrieved woman during pendency of the proceedings is sustainable?
(vii) Whether the Petition by the aggrieved woman is not maintainable as she has not exhausted the alternative remedy of an appeal against the finding of the Internal Complaints Committee?
Background
In the present matter, it was stated that the aggrieved woman faced severe sexual harassment from March 2014 onwards at the hands of the Secretary.
Further, it was alleged that he regularly made racist and sexist comments on women hailing from the North-East, particularly from the home state of the aggrieved woman.
As a counterblast to aggrieved woman’s objections, with regard to inappropriate sexual advances by the Secretary, he in the presence of other officers screamed at her and kept accusing her of poor performance or not working properly.
Adding to the above allegations, the aggrieved woman also stated that he tried to hold her hand, saying that she should have understood his ‘hints’ and should have provided him ‘bodily satisfaction’ if she did not want her probation to get extended.
Further, she was also served with frivolous office memoranda which were sent to tarnish her employment record.
In 2019, she submitted a complaint to the police station detailing out the acts of sexual harassment and assault perpetrated by the Secretary, later an FIR was registered.
Aggrieved woman protested and informed the ICC that it did not have the jurisdiction to look into her complaint against the Secretary and only the Local Committee was vested with the jurisdiction to initiate proceedings based on her complaint, as the Secretary was the employer in terms of Section 2(g) of the Act.
Further, the ICC stated that if the aggrieved woman will not appear, the Committee shall have no option but to terminate the proceedings.
Local Committee granted aggrieved woman relief of 3 months paid leave in terms of Section 12(1) of the Act.
In February 2020, the aggrieved woman was discharged from her duties due to unsatisfactory performance.
Analysis, Law and Decision
High Court expressed that since the Secretary was the employer for the purposes of the Act, the complaint of the said employer would not lie to the Internal Committee but shall lied only to the Local Committee.
Therefore, ICC does not have any jurisdiction to entertain a complaint against the Secretary.
In the present matter, the aggrieved woman had emailed to the Executive Board requesting them to set up an independent committee to enquire into her complaint of sexual harassment and assault in the same email she had alleged that the ICC lacked jurisdiction to enquire into her complaint as her complaint was against the Secretary who was the ‘employer’ within the meaning of Section 2(g) of the Act.
Since no complaint was made by the aggrieved woman to the Internal Committee in terms of Section 9 of the Act, the Internal Committee could not have conducted any inquiry or submitted a report.
Court while reasoning out further stated that,
- No rule or provision pointed out on behalf of the Akademi to justify the procedure of constituting a Review Committee to review the performance
- Office memoranda and calling explanations relied upon were issued either by the Secretary or by the officers junior to the Secretary, who also report to him
- If there was any merit in the allegations of the aggrieved woman then the office memoranda and calling explanations were all issued because she rebuffed his advances
- Timing of the termination order was such that it prima facie smacks of malafides. Especially, when a complaint of sexual harassment was pending against the Chief Executive Officer of the Akademi, the Executive Board should have waited for the decision on the complaint of the aggrieved woman.
Note:
Section 19 of the Act stipulates the duties of the employer to inter alia provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace; display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under Section 4(1); provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force; cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place; and treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.
Conclusion
Petition was disposed of in the following terms:
(i) The Secretary is held to be an employer in terms of Section 2(g) of the Act.
(ii) The complaint of sexual harassment against the Secretary would lie only to the Local Committee and the Internal Complaints Committee would not have any jurisdiction to entertain any complaint against the Secretary.
(iii) The Inquiry report dated 14.01.2020 of the Internal Complaints Committee and its opinion and recommendations are held to be without jurisdiction and non est.
(iv) Office Memorandum dated 14.02.2020 terminating the services of the aggrieved woman quashed.
(v) The aggrieved woman would be deemed to continue in service but as a probationer in terms of her appointment letter till the conclusion of the inquiry by the Local Committee. She is reinstated to her former position, with continuity of service, full back wages, and other consequential service benefits.
(vi) The Akademi shall forthwith pay her salary for the current month and clear the arrears of her salary within four weeks.
(vii) The aggrieved woman shall be deemed to be on paid leave till the Local Committee passes appropriate interim orders with regard to provision of a safe working environment to her.
(viii) The competent authority of the Akademi would be at liberty to review her performance and take a decision on her employment status after submission and implementation of the report by the Local Committee.
(ix) Since it has been held that the Secretary is the employer in terms of Section 2(g) of the Act and that a complaint against him would not lie to the Internal Committee, the question as to whether the Internal Committee was validly constituted and details thereof displayed in terms of Section 19 of the Act, is left open.
(x) The claim of the aggrieved woman for compensation for alleged mental trauma, pain, suffering and emotional distress caused to her is left open for determination by the Local Committee in terms of Section 15 of the Act.
Therefore, petition was allowed in the above terms.[X v. Y, WP(C) 1103 of 2020, decided on 25-10-201]
Advocates before the Court:
For the Petitioners:
Mr. Ritin Rai, Senior Advocate with Ms. Shreya Munoth, Ms. Kritika Bhardwaj, Mr. Ashwin Pantula, Ms. Aditi Rao and Ms. Suhavi Arya, Advocates.
For the Respondents:
Ms. Geeta Luthra, Senior Advocate with Mr. Abhishek Aggarwal, Ms. Damini Thaker and Ms. Kamkashi Gupta, Advocates for Respondent No. 1
Mr. Anupam Srivastava, ASC, GNCTD with Mr. Dhairya Gupta, Advocate for R-2 and 3/GNCTD.
