Case BriefsHigh Courts

Kerala High Court: While expressing that, any organisations, establishments, private institutions are employing workers whether for wages or not in contemplation of the provisions of the Act, 2013 coming under the definition of employer, employee and workplace, they are duty bound to constitute an Internal Complaints Committee,  the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., held that, a production unit of each film industry is an establishment employing Actor Artists and other workers and therefore, such production units have to maintain an Internal Complaints Committee if they are engaging more than 10 workers

Public Interest Litigations were filed by various organizations seeking to constitute a grievance redressal mechanism against sexual harassment as per the Supreme Court directions in Vishakha v. State of Rajasthan, (1997) 6 SCC 241, and in accordance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

It was submitted that there is a pressing need for a grievance redressal mechanism against the sexual harassment to be instituted by the organizations in the light of the recent abusive practices and the sexual harassment faced by the women in the film industry and particularly so, since the nature of the work undertaken by Actor Artists is such that, once the production of a film is over, there is no longer a workplace for that film where such grievance can be pursued.

Question to be decided


Whether any of the respondent organizations are creating a workplace or creating an employer-employee relationship in order to attract the provisions of Act, 2013 and thereby bound to constitute an Internal Complaints Committee?

Analysis and Decision


High Court opined that the organizations associated with the film industries, who are made respondents in the petitions were not employers of the Actor Artists in the film industry. Though, these organisations have their own structure, in which employees are there and therefore, if there are any women employees employed by such organisations, they are duty bound to constitute an Internal Complaints Committee, if the employees are exceeding 10 in number in contemplation of Section 4 read with Section 6 of the Act, 2013.

Further, the Bench added that, it can be gathered that even if the respondent organisations are not duty bound to constitute an Internal Complaints Committee, a complaint will lie to the Local Committee constituted under Section 6 because the second limb of Section 9 makes it clear that where there is no internal committee constituted, the complaint can be preferred to the local committee.

Additionally, the High Court observed that so far as the film industry is concerned, the production unit is the workplace of an individual film and therefore, each production unit would have to constitute an Internal Complaints Committee, which alone can deal with the harassment against women in the contemplation of the provisions of Act, 2013.

High Court’s Opinion

(1) The production unit of each film industry is an establishment employing Actor Artists and other workers and therefore, such production units have to maintain an Internal Complaints Committee, if they are engaging more than 10 workers, as is contemplated under the Act, 2013.

(2) If any of the respondent organisations, apart from the political parties, made as respondents in W.P.(C) No.36059/2018, are duty bound to maintain Internal Complaints Committee, if they are engaging 10 workers or more for managing the office establishments and wherein women workers are employed for wages or not.

(3) If women workers are employed by any of the respondent organisations related to the film industry in which less than 10 workers are employed, then they are entitled to make suitable complaints to the Local Complaints Committee in accordance with the provisions contained under section 6 read with Section 9 of Act, 2013.

(4) Since the Association of Malayalam Movie Actors – the 3rd respondent in W.P.(C) No.33994/2018 has volunteered to appoint a committee to deal with any sexual harassment at its workplace, we record the same and accordingly to take action to notify the members of the Internal Complaints Committee, in accordance with law.

(5) From the discussions made above, we find that the political parties, which are not having any employer-employee relationship with its members and which are not carrying on with any private venture, undertaking, enterprises, institution, establishment etc. in contemplation of a ‘workplace’ as defined under section 2(o)(ii) of Act, 2013, are not liable to make any Internal Complaints Committee.

(6) In all other cases, a woman employee subjected to sexual harassment is entitled as of right to file any complaint of sexual harassment before the Local Committee in contemplation of the provisions of the act, and under section 9 r/w. Section 6 of Act, 2013.

Lastly, the Bench asked the oragnisations associated with the film industry to take steps to constitute a joint committee by including the members of organisations registered with them in tune with the provisions of Act, 2013 to deal with sexual harassment of women, which would definitely render sufficient confidence to women Actor Artists and other employees & other workers employed by the production unit ; which would in turn protect the dignity, and make the right to life and personal liberty of the women in the film industry more meaningful and fruitful.[Women in Cinema Collective v. State of Kerala, 2022 SCC OnLine Ker 1436, decided on 17-3-2022]


Advocates before the Court:

For the Petitioners:

BY ADVS.

SANTHOSH MATHEW

SRI.ARUN THOMAS

SRI.VIJAY V. PAUL

SMT.KARTHIKA MARIA

SMT.VEENA RAVEENDRAN

SRI.ANIL SEBASTIAN PULICKEL

For the Respondents:

SMT.AMMU CHARLES FOR R3

R4 BY MR.TALISH RAY

SRI.A.S.DILEEP

SRI.BINOD.P.

MS.SUSHEELA DILIP

MS.SUNITHA OJHA

SRI.SUDEEP ARAVIND PANICKER

SRI.P.S.MURALI

SHRI.N.MANOJ KUMAR, STATE ATTORNEY FOR R1 & R2

Case BriefsHigh Courts

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.

Case BriefsHigh Courts

Delhi High Court: Pratibha M. Singh, J., observed that:

Complaints of sexual harassment are initially filed with enormous reluctance. The power of the ICC to hold the enquiry and give a report ought to be within the scheme and the four corners of the statute itself.

In the instant petition, recommendations of the Internal Complaints Committee have been challenged as given in the report as well as further action taken by the Punjab National Bank on the basis of ICC’s report.

A complaint was filed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 against respondent 3 who was working as the General Manager of respondent 1 Bank, in Mumbai.

The above-stated complaint was referred to the ICC, which was constituted by the Bank, consisting of four members.

What was the analysis of ICC?

ICC came to the conclusion that the relationship between the petitioner and respondent 3 was based on personal grounds with mutual consent, and that the allegations of sexual, emotional and mental harassment were not substantiated by the petitioner.

Hence, the complaint against respondent 3 was rejected.

ICC made additional observations that the behaviour of the parties had been inappropriate and unbecoming of officers/employees of the Bank and accordingly recommended the Competent Authority to take suitable action against the petitioner and the respondent 3.

Based on the above report, a charge sheet was issued against the petitioner under Regulation 6 of the Punjab National bank Officer Employees’ (Discipline & Appeal) Regulations, 1977, hence in view of the same, petitioner has filed the instant petition.

Single Judge in his order had stayed the ICC’s recommendation and the consequent charge-sheet.

Later during the pendency of the petition, the petitioner became eligible to be considered for promotion. Petitioner stated that her promotion was being held up in view of the pendency of the present petition.

Thereafter, the Bank was directed to independently consider the petitioner’s candidature for promotion, however, it was directed that the same shall not be given effect to and kept in a sealed cover. Due to the lockdown, the matter could not be heard.

Analysis and Decision

Bench on perusal of the facts and circumstances of the matter raised the question as to whether the ICC could have, in the first place, made a recommendation directing the competent authority to take action?

ICC in its report had concluded that the allegations were not substantiated and the complaint was not made out. and further added remarks in regard to the conduct of the petitioner and respondent.

High Court made an observation in light of Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, that is the allegations of sexual harassment or any other form of harassment, as contemplated under the Act, are not proved before the ICC, the ICC can only recommend the employer to not take any action in the particular matter.

In the instant case, ICC has gone beyond its statutory mandate and has made observations that both the parties indulged in inappropriate/unbecoming conduct and indiscipline action against them.

Bench held that the above-stated recommendation by the ICC was beyond jurisdiction.

Moral Policing

‘Moral Policing’ is not the job of the Management or of the ICC.

With regard to Moral Policing, Court expressed that, any consensual relationship among adults would not be the concern of the Management or of the ICC, so long as the said relationship does not affect the working and the discipline of the organisation and is not contrary to the Rules or code of conduct binding on the said employees. It is only if a complaint is made of sexual harassment under the Act that the Management can constitute the ICC to enquire into the same.

Bench in view of the above discussion found the last paragraph of ICC’s report in the instant case to be commenting on the conduct of the parties which is against the statute and hence the same was not tenable and liable to be set aside.

In view of the above position, the fact that the Petitioner has become eligible for promotion means that the Bank would accordingly offer her promotion in accordance with her seniority, performance and merit, as per the applicable service rules. [Bibha Pandey  v. Punjab National Bank,  2020 SCC OnLine Del 1639, decided on 16-12-2020]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., observed that:

It is impossible not to notice all around us, how easily the “common woman” is put down by the “common man”. Less said the better of what happens to the Third Gender!

Appellant had filed the instant appeal on being aggrieved with the Single Judge’s decision.

Bench noted that the inquiry into the complaint of sexual harassment filed by the appellant against the respondent 3/O.P. Verma was conducted before the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Petitioner was working as an Assistant Director with the ESI Hospital, Manesar, Gurgaon. Respondent 3 was posted as Deputy Director in the same hospital.

Appellant had complained that he was repeatedly subjecting her to sexual harassment by using inappropriate language with sexual overtones.

Further, the appellant submitted that she was distributing housekeeping material among the nursing staff at the ESI Hospital when respondent 3 told her to accompany him to male toilet using words that were indicative of sexual advances. Due to the said incident, the appellant felt deeply humiliated.

 Respondent 3 had commented on appellant’s dressing as well where he stated that if another button of her shirt were to open what would be the result that would follow.

On yet another occasion, when the appellant commented to other Staff that Saturdays should be a half-day as there was less work and during the rest of the time they were only playing hide and seek, the respondent 3/O.P.Verma remarked that neither had he caught the appellant nor had the appellant caught him.

The above incidents caused great anguish to the appellant.

In light of the above incident, a complaints committee was duly constituted. The Committee granted the benefit of doubt to respondent 3 and further recommended that both the officers, be relocated with immediate effect.

According to the appellant, this decision was not communicated to her and it was only on 3-07-2013 in response to an RTI query that she learnt of the decision. She filed an appeal but was also not again communicated the result of that appeal.

In the meanwhile, respondent 3/O.P. Verma retired. She, therefore, filed the writ petition challenging the recommendation of 20-01-2012.

Appellant had questioned the transfer by means of the writ petition filed by her and had also sought an independent internal departmental inquiry against the respondent 3/O.P.Verma as well as directions for criminal prosecution against him instead of the transfer. The question that presents itself is whether such relief could be granted or not.

Bench stated that since the respondent retired 5 years back it does not considers it expedient to grant such relief to the appellant of directing an independent departmental inquiry against him.

Court observed that with regard to the criminal prosecution, nothing prevented the appellant from initiating any such action against the respondent 3/O.P.Verma since the date of the incident or even since the date of the report of the Complaints Committee. Appellant did not seek such a relief from the Internal Complaints Committee even after the Act came into force in 2013.

Before parting with the instant order, the Court found it necessary to underline that:

Sexual Harassment is a serious issue that needs to be addressed at all work places urgently and sensitively.

Women are entitled to a congenial and dignified environment to live their life fully and attain their full potentiality.

With regard to Gender Conditioning, Court noted that

Gender conditioning where the man develops a superiority complex, while the woman doubts her own capacity, starts very early in life. It need not be in the form of a tutorial, but certainly as subtle data to the minds of young children, about their privileges or lack of it.

Every institution and organization must declare zero tolerance for Gender insensitivity.

In the instant case, the appellant did not know about the appropriate authority before whom to file her initial complaint.

When asked by it as to why she had lodged the complaint directly to the headquarters, she answered that she did not know the address of the ‘Woman Cell’ at the ESI Hospital and had made an enquiry from Manju Swaminathan and submitted her complaint to the Complaints Committee.

Bench also added to its observation that it cannot be overlooked that the Internal Complaints Committee is intended as a platform to provide an environment of confidence to the complainant.

Absence of eyewitnesses to the incident cannot detract from the credibility of the complainant as her statement is to be considered independently to determine whether it has a ring of truth or not.

Gender Sensitization

Gender sensitivity requires an understanding of what a woman feels when she is sexually harassed.

Though stereotyping is itself unwarranted, it has been noticed that just as in other sexual offences, a woman goes through a lot of soul-searching (again due to gender-conditioning), she tries to adopt measures of self-protection, by avoiding the perpetrator, may be even by taking leave!

Importance of Internal Complaints Committee

Internal Complaints Committee has to be set up in every workplace and every woman employee informed as to the person she can contact in the Internal Complaints Committee when faced with any unsavoury or unacceptable conduct by a male colleague.

The high standard of proof required in criminal trials is not called for during an inquiry by the Internal Complaints Committee under the Act.

There can be no insistence on production of witnesses by the complainant to corroborate her statement.

It is not enough to merely constitute Internal Complaints Committees, but it is also important that the purpose for having such a Committee and in fact for making such a law must always remain uppermost in the minds of all at the workplace.

Hence, Bench reiterated that all employers are required to sensitize all employers who work in the organization to deal with a woman, whether a colleague or a visitor or a beneficiary of services provided to the public, always remaining acutely aware of her dignity.

When a person speaks, the words have an impact and the speaker must be conscious of such impact when speaking to a woman whether from the public or a colleague.

Appeal in view of the above discussion was allowed.[X v. Union of India,  2020 SCC OnLine Del 1618, decided on 17-12-2020]


Advocates who appeared before the Court:

Advocate for the Appellant: Kamna Vohra

Advocates for the Respondents: Anil Dabas, Advocate for R-1. Yakesh Anand, Advocate for R-2,4 &5 ESIC