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

Jharkhand High Court: Sanjay Kumar Dwivedi, J., dismissed the petition being devoid of merits.

The facts of the case are such that the Jharkhand State Aarogya Society issued an advertisement for appointment in different posts by way of walk-in-interview. The said appointment shall be a contractual appointment for a period of three years with the rider that on completion of three years, the review would be done of the work of the appointed persons and upon their being found to be satisfactory, their services shall be extended for the next year and if found to be unsatisfactory then after giving one month’s notice his service shall be terminated. The petitioner applied for the post of Senior Consultant (Finance) got a total of 45 marks which was found to be highest and was selected for the post. The petitioner received the appointment letter dated 15.10.2019 and was terminated vide letter dated 23-06-2020 even without completing one year. Aggrieved by the same, instant petition was filed for quashing the said termination order.

Counsel for the petitioner Rahul Kumar submitted that the impugned order is non-speaking and illegal. He further submitted that the order was issued without following clause-6 of the appointment letter which provides for one month’s notice before terminating the service of the employee, and has been issued without any show cause and hence is in violation of principles of natural justice and liable to be quashed.

Counsel for the respondents Salona Mittal submitted that the appointment letter categorically mentions that the appointments are being made for a period of three years subject to review of the performance every year and if the same is not found satisfactory, their services can be terminated.  It was further submitted that due to the negligence of the petitioner, the office of the respondents was levied with a penalty by the Income-tax Department for not filing TDS within time.  It was further submitted that the order was issued after following the due process of law as show cause dated 22-01-2020 was served.

The Court observed that there was no statutory rule requiring one month’s notice for termination by the respondents of the service of the petitioner but only the term of appointment order which stipulated for one month’s notice. The term contained in clause-6 of the appointment letter reads as under

 “On unsatisfactory contract of service termination can be made after providing a month’s notice.”

This nowhere suggests or indicates that non-service of one month’s notice as a condition precedent for termination of petitioner’s service would result in vitiation or invalidation of termination of service if effected.

The Court further relied on judgment Oriental Insurance Co. Ltd. v. T. Mohammed Raisuli Hassan, (1993) 1 SCC 553 and observed

“4. Admittedly, there was no statutory rule requiring one month’s notice for termination by the appellant of the service of the respondent. It is only the term of appointment order, which stipulated for one month’s notice or one month’s salary in lieu thereof by either side to bring an end to the service of the respondent, which is made the basis for claiming invalidation of termination. That term contained in clause 10 of the appointment order reads:

“10. This appointment is liable to b eterminated at any time by giving one month’s notice, in writing, on either side, or a month’s salary in lieu of notice, without assigning any reason.

Breach of this condition, will entitle the company to recover from you one month’s salary in lieu of notice.”

5. When the above term in the clause relating to the condition of service of the respondent with the appellant is seen as a whole, there is nothing to indicate or suggest, even remotely, that non-service of one month’s notice as a condition precedent for termination of the respondent’s service would result in vitiation or invalidation of termination, if effected. On the contrary, the second part of the term contained in the clause, “breach of this condition, will entitle the company to recover from you one month’s salary in lieu of notice” makes it obvious that the same would be the consequence if there was a breach of condition on the part of the company in the matter of service of one month’s notice before termination of the respondent’s service. Hence, we are constrained to hold that the non-service of one month’s notice in writing by the appellant to the respondent before terminating the latter’s service did not invalidate or vitiate such termination. From this, it follows that courts below had misread the said clause, by which either party was required to serve notice for putting an end to service of the respondent and consequently committed an apparent error in taking the view that non-service of one month’s prior notice to the respondent had vitiated the termination of his service.”

In light of the well-settled law in this aspect and the above authoritative pronouncement, Court held that the service of the petitioner was not being governed by any statutory but by the appointment letter wherein it was nowhere explicitly mention that non-service of one month’s notice in writing by the respondents to the petitioner before terminating the service of the petitioner will invalidate or vitiate such termination.

In view of the above, petition stands dismissed.[Chandrashekhar v. State of Jharkhand,  2020 SCC OnLine Jhar 838, decided on 06-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J. allowed a writ petition filed by the employer challenging the award of the Labour Court whereby the respondent was ordered to be reinstated with 40% back wages.

The employer had engaged the respondent on daily wages, who deposited deficient sale proceeds for several months in 1989 and 1990. The employer issued memos to the respondent, whose services were ultimately terminated on the ground of loss of confidence. The respondent raised an industrial dispute which was referred to the Labour Court, which subsequently made the impugned award.

Anju Bhattacharya, Nandita Chandra and Elign Matt John, Advocates representing the employer, submitted that there was no infirmity in termination of respondent’s service. Per contra, B.P. Singh Parihar, Advocate for the respondent, supported the impugned award.

The High Court observed: “the law with respect to the loss of confidence is well- settled that the reinstatement cannot be ordered when an employee acts in a manner by which the management loses confidence in him. In case of loss of confidence, only compensation can be awarded.” Reliance was placed on State of Travancore v. Prem Singh, 2019 SCC OnLine Del 8258 wherein the High Court had summarised the principles regarding the termination of service in case of loss of confidence.

It was brought to Court’s notice that the employer had paid around 7.47 lakhs to the respondent under Section 17-B of the Industrial Disputes Act, 1947 (payment of full wages to the workman pending proceedings in higher courts).

The Court was satisfied that the instant case was squarely covered by principles laid down in State of Travancore case. No infirmity was found in termination of respondent’s services. The writ petition was allowed and the award of Labour Court impugned herein was set aside. However, a compensation of Rs 75,000 was awarded to the widow of the respondent (who had expired during the pendency of the petition).[Delhi State Civil Supply Corpn. Ltd. v. Badan Singh, 2019 SCC OnLine Del 9977, decided on 30-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench of Rajiv Sharma and Harinder Singh Sidhu JJ., set aside the decision of the Central Administrative Tribunal on the basis of the principle of law.

A writ petition was filed against the order of Central Administrative Tribunal, Chandigarh, where the order challenging the termination was dismissed.

The brief facts were that the Recruitment Cell of the Post Graduate Institute of the Medical Education & Research (PGI) issued advertisement inviting online applications for recruitment to various posts including Technician Grade-IV. The petitioner who had eight-year experience applied for the same post under the Schedule Caste category. As per the procedure, the petitioner submitted the documents for scrutiny. As a part of the selection procedure, the petitioner and other candidates were asked to perform the technical work in which the petitioner secured highest marks and thus was thereby appointed.  But on the complaint of one of the other candidate, the appointment was challenged on the ground of not having the basic qualification. Thereby it was reported by the committee formed by the respondent that experience certificate was true and genuine but it was found that petitioner did not possess the qualification for the said post and on this ground, the services of the petitioner were terminated. Thus, this writ petition.

High Court opined that there was no allegation of any misrepresentation on the part of the petitioner also there was no observation that he was lacking in skills or that his work at PGI was not up to the standards.  The Court cited the judgment of M.S. Mudhol v. S.D. Halegkar, (1993) 3 SCC 591, in which it was held that where there was no misrepresentation by a candidate, and despite his not possessing the qualifications he had been appointed and had worked for a considerable time it would be iniquitous to disturb him. Thus the petition was allowed as the petitioner had worked there for more than a year and thus the petitioner was directed to be reinstated in the service with all consequential benefits.[Varinder Hans v. Union of India, 2019 SCC OnLine P&H 1343, decided on 31-07-2019]

Case BriefsHigh Courts

Calcutta High Court: Sahidullah Munshi, J. allowed a writ petition assigned before the Court on the request for reference by the Single Bench of the Court in a matter pertaining to arbitrary termination of service of the petitioner.

In the present case, the petitioner was an emeritus professor of the Hooghly Engineering and Technology College Service (HETCS), which had been formed under the provisions of the West Bengal University of Technology Act, 2000. The college was affiliated to the University namely, Maulana Abul Kalam Azad University. On 23-03-2018, a termination letter was issued to the petitioner by the Secretary, HETCS and it showed that petitioner’s service was no longer required and with it, one month’s advance salary of Rs 40,000 in lieu of one month’s notice was deposited in the petitioner’s account. Prior to this, on 26-09-2017, he was also issued a show cause notice by the then Principal of HETCS. The very authority of the show cause notice issued by the Principal was the basis for the cause of action in the present writ petition.

The petitioner contended that the Principle had no authority to initiate any proceeding against the petitioner for his removal as on the day when the letter was issued he was not the Principal; and secondly, the allegations made against the petitioner were bald, unfounded allegations which could never be proved against him.

Kallol Basu appearing for the Secretary challenged the maintainability of the writ petition under Article 226 of the Constitution. He submitted that, “the institution is a private institution and having not been financed by the State it does not come within the purview of Article 12 of the Constitution and the writ proceeding is not maintainable.”

The Court held, “it is absolutely clear that Respondent 3/college received Government aid from the Government of West Bengal from time to time and thus there is no doubt that the said college comes within the purview of Article 12 of the Constitution and the writ petition can be held to be maintainable against any action of such college receiving Government aid.”

The Court also relied on the case of Andi Mukta Sadguru Shree Muktarjee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691, where it was held, “The term “authority” used in the context, must receive a liberal meaning unlike the term in Article 12 which is relevant only for the purpose of enforcement of fundamental rights under Article 32.”  Thus, the writ petition was held maintainable.

Further, on the merits of the case, it was held, “In my view, all actions including the actions taken by the Secretary terminating the petitioner’s service are without jurisdiction and all actions taken against the petitioners have vitiated being unauthorised exercise of authority. The entire proceeding being unsustainable, the order of suspension and termination cannot remain alive and those are set aside.”

In the view of the above, the petitioner was entitled to his salaries (full salary from the day when he was placed under suspension) considering that no proceeding had been initiated against him.[Dr Sankar Prasad Mukherjee v. Maulana Abul Kalam Ajad University, 2019 SCC OnLine Cal 659, decided on 16-05-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Surya Kant, CJ and Ajay Mohan Goel, J. declared that even if there was a delay in approaching the authorities, the Court shall balance out the equities while giving a decision.

An order was passed by Himachal Pradesh Administrative Tribunal whereby the petitioners through their counsels Ashok Sharma, Advocate General, with Mr. J.K. Verma and Mr Ranjan Sharma, Additional Advocate General have been directed to count the services of respondent and confer the Work Charge Status upon him on completion of eight years continuous service with financial benefits.

The respondent was engaged as a Daily Waged Beldar for thirty days. In the next year 1994, he worked for 257 days but he allegedly did not work in the year 1995. Further, there was an order for his retrenchment from service which he contended before the tribunal to be bad in law pursuant to which he was re-engaged plus his services were regularized.

The Court was of the view that once the termination of services of the respondent was found bad in law, the only consequence, which is bound to fall upon, is that he would be deemed to be continuing in service and thus no interference in the order of the tribunal was called for.[State of H.P v. Tikkam Ram, 2018 SCC OnLine 1749, decided on 10-12-2018]