Case BriefsHigh Courts

Karnataka High Court: M Nagprasanna, J., allowed the petition and quashed the impugned second show cause notice holding The University is at liberty to initiate proceedings against the petitioner under the Service Rules by following the procedures stipulated therein.

The petitioner presently working in the cadre of Professor at the Department of Economics in the University in this writ petition calls in question second show-cause notice dated 5-11-2020 seeking the petitioner to show cause as to why penalty of dismissal from service should not be imposed upon him based upon the report of Internal Complaints Committee as a complaint was lodged by a project student before the Karnataka State Commission for Women alleging sexual harassment by the petitioner while he was functioning as Chairman of Department of Economics

Counsel for the petitioners submitted that the impugned second show cause notice decides to dismiss the petitioner from service and a separate order places him under suspension. The proposal to dismiss the petitioner from service is on the basis of a report of the Committee, without holding any inquiry as required under the Service Rules, as the penalty of dismissal can be imposed only after following the procedure.

POSITION IN LAW: Pre- Legislation

The SC in judgment Vishaka v. State of Rajasthan, (1997) 6 SCC 241 stipulated certain guidelines that were required to be strictly observed in all work places and these directions would be binding until suitable legislation is enacted to occupy the field.

Further in Medha Kotwal Lele v. Union of India (2013) 1 SCC 297 it was observed that the directions given in Vishaka v. State of Rajasthan, (1997) 6 SCC 241 should not remain symbolic and in that light further directions were given.

POSITION IN LAW: Post-Legislation

[Relevant provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013]

“…13(1) (3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be—

(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;

  1. Every employer shall –

(i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.”

Observations

The Court observed that on a conjoint reading of the Sections 11, 13(3),13(4) and 19 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act along with Rule 7 and 9 of  Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 it emerges that where the Service Rules exist, the report of the Committee becomes a fact finding report or a preliminary report, with regard to the allegation of sexual harassment and the employer becomes duty bound to proceed under the Service Rules before imposing any major penalty.

The Court observed that there are no separate disciplinary Rules for these allegations, the Rules that are obtaining in the University which deal with imposition of penalty for any misconduct, are the Statutes Governing Classification, Control and Appeal Rules of Employees of Mangalore University

The Court observed that in terms of the Service Rules no penalty can be imposed against an employee except after following the procedure stipulated in terms of the Rules as aforeextracted. Dismissal from service is one of the major penalties depicted under Rule 7. Rule 11 deals with procedure for imposing penalties and begins with a non-obstante clause that no order imposing any of the major penalties specified in sub-rule 4(b) to 8 of which dismissal from service is a part, can be imposed, except after following the procedure stipulated under the aforesaid Rules. Rule 11-A deals with action on the Inquiry Report. These procedures have to be followed if an employee is to be imposed any of the penalties under the Rules. A reading of Section 9(i) of the Act in juxtaposition with the aforesaid Rules makes it unmistakably clear that the Act itself directs that the case of sexual harassment would be treated as misconduct under the Service Rules and action to be taken as such. If the Act directs it to be treated as misconduct under the Service Rules that will have to be dealt with under the Rules (supra) and procedure to be followed prior to imposition of such penalty as found in the Service Rules.

The Court relied on judgment Vijayakumaran C.P.V. v. Central University of Kerala, 2018 SCC OnLine Ker 22418 wherein it was held

  1. Upon receipt of complaints from aggrieved women (girl students of the University) about the sexual harassment at workplace (in this case, University campus), it was obligatory on the Administration to refer such complaints to the Internal Committee or the Local Committee, within the stipulated time period as predicated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short “the 2013 Act”). Upon receipt of such complaint, an inquiry is required to be undertaken by the Internal Committee or the Local Committee in conformity with the stipulations in Section 11 of the 2013 Act. The procedure for conducting such inquiry has also been amplified in the 2015 Regulations. Thus understood, it necessarily follows that the inquiry is a formal inquiry required to be undertaken in terms of the 2015 Regulations. The allegations to be inquired into by such Committee being of “sexual harassment” defined in Section 2(n) read with Section 3 of the 2013 Act and being a serious matter bordering on criminality, it would certainly not be advisable to confer the benefit on such employee by merely passing a simple order of termination. Such complaints ought to be taken to its logical end by not only initiating departmental or regular inquiry as per the service rules, but also followed by the other actions as per law. In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence. We say no more.
  2. A priori, we have no hesitation in concluding that the impugned termination order dated 30-11-2017 is illegal being ex facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules. On this conclusion, the appellant would stand reinstated, but whether he should be granted back wages and other benefits including placing him under suspension and proceeding against him by way of departmental or regular inquiry as per the service rules, is, in our opinion, a matter to be taken forward by the authority concerned in accordance with law.

 The Court thus held “no penalty can be imposed against the petitioner on the basis of the report of the committee in terms of the Service Rules of the University without holding any inquiry as obtaining under the Service Rules.”

[Dr Arabi U. v. Mangalore University; 2021 SCC OnLine Kar 12858; decided on 20-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr. Sushil Kumar Jain and Mrs. Revathy Adinath Narde

For respondent: Mr. Madhusudhan R Nair, T. P. Rajendra Kumar Sungay, Mrs. Shrividya Zirali and Shivaprasad Shantanagoudar

Case BriefsInternational Courts

European Court of Justice: In a landmark ruling the Grand Chamber comprising of composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Prechal, M. Vilaras, E. Regan, L. Bay Larsen, N. Piçarra and A. Kumin, Presidents of Chambers, T. von Danwitz, C. Toader, M. Safjan, F. Biltgen (Rapporteur), P.G. Xuereb, L.S. Rossi and I. Jarukaitis, JJ., held that prohibiting Islamic headscarf and any visible sign of political, ideological or religious beliefs does not constitute discrimination on the grounds of religion.

Factual Fulcrum

Two requests for a preliminary ruling were received by the Court from the Labour Court, Hamburg, Germany and the Federal Labour Court, Germany with regard to cases C‑804/18 and C‑341/19 respectively.

C804/18

IX was a special needs carer, employed by WABE which runs a large number of child day care centres in Germany, in which more than 600 employees work and which care for approximately 3500 children.  IX decided to wear an Islamic headscarf which went contrary to WABE’s policy regarding ‘Instructions on observing the requirement of neutrality’. Those instructions state, inter alia, that WABE is ‘non-denominational and expressly welcomes religious and cultural diversity. In order to guarantee the children’s individual and free development with regard to religion, belief and politics, … employees are required to observe strictly the requirement of neutrality that applies in respect of parents, children and third parties. WABE pursues a policy of political, philosophical and religious neutrality in respect thereof’.

The ‘information sheet on the requirement of neutrality’ issued by WABE stated that the Christian cross, Islamic headscarf or Jewish kippah are not permitted as the children should not be influenced by the teachers with regard to a religion. The deliberate choice of religiously or philosophically determined clothing is contrary to the requirement of neutrality. Hence, IX was first temporarily suspended from service for wearing an Islamic headscarf. Later on, she was asked, in view of the requirement of neutrality, to perform her work without a headscarf in future. As IX again refused to remove the headscarf, she was sent home and temporarily suspended.

Case C341/19

 One MJ, employed in a store operated by MH as a sales assistant and cashier had been transferred to another post allowing her to wear the headscarf as she had refused remove her headscarf in accordance with MH’s policy of neutrality. Later on, she was instructed to attend her workplace without conspicuous, large-sized signs of any political, philosophical or religious beliefs and, following MJ’s refusal to comply with that request, she was sent home.

MJ brought an action before the national Courts seeking a declaration that that instruction was invalid and compensation for the damage suffered. In support of her action, MJ invoked her freedom of religion, claiming that the policy of neutrality sought by MH did not enjoy unconditional priority over the freedom of religion and must be subject to a proportionality test.

Both the Courts (Labour Court, Hamburg, Germany and the Federal Labour Court, Germany) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling.

Analysis by the Court

On prohibition to wear an Islamic headscarf at workplace

The Court answered that an internal rule of an undertaking, prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, does not constitute, with regard to workers who observe certain clothing rules based on religious precepts, direct discrimination on the grounds of religion or belief provided that that rule is applied in a general and undifferentiated way.

Noticing that WABE also required another employee wearing a religious cross to remove that sign, the Bench opined that prima facie the internal rule at issue in the main proceedings was applied to IX without any difference of treatment by comparison with any other person working for WABE, with the result that it could not be considered that IX suffered a difference of treatment directly based on her religious beliefs.

Political, ideological and religious neutrality of employer v. Religious and gender discrimination

Article 2(2)(b)(i) of Directive 2000/78 provides that such a difference of treatment is prohibited, unless the provision, criterion or practice from which it derives is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. However, the Bench clarified that the concept of a legitimate aim and the appropriate and necessary nature of the means taken to achieve it must be interpreted strictly. In that regard, the Bench held that,

As regards to condition relating to the existence of a legitimate aim, an employer’s desire to display, in relations with both public- and private-sector customers, a policy of political, philosophical or religious neutrality may be regarded as legitimate…(however) mere desire of an employer to pursue a policy of neutrality – while in itself a legitimate aim – is not sufficient, as such, to justify objectively a difference of treatment indirectly based on religion or belief.

Hence, the Bench answered that Article 2(2)(b) of Directive 2000/78 must be interpreted as meaning that a difference of treatment indirectly based on religion or belief, arising from an internal rule of an undertaking prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, may be justified by the employer’s desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, provided,

  1. That policy meets a genuine need on the part of that employer, which it is for that employer to demonstrate, taking into consideration, inter alia, the legitimate wishes of those customers or users and the adverse consequences that that employer would suffer in the absence of that policy, given the nature of its activities and the context in which they are carried out;
  2. That difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, which entails that that policy is pursued in a consistent and systematic manner; and,
  3. The prohibition in question is limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid by adopting that prohibition.

Does prohibiting visible sign of religious, political or other philosophical beliefs, and not only such signs as are prominent and large-sized is an indirect religious discrimination?

Opining that unequal treatment resulting from a rule or practice which is based on a criterion that is inextricably linked to a protected ground, i.e. religion or belief, must be regarded as being directly based on that ground, the Bench stated,

Where the criterion of wearing conspicuous, large-sized signs of political, philosophical or religious beliefs is inextricably linked to one or more specific religions or beliefs, the prohibition imposed by an employer on its employees on wearing those signs on the basis of that criterion will mean that some workers will be treated less favourably than others on the basis of their religion or belief, and that direct discrimination, within the meaning of Article 2(2)(a) of Directive 2000/78, may therefore be established.”

Hence, in accordance with Article 2(2)(b)(i) of that directive, a difference of treatment would, if it were established that it in fact results in a particular disadvantage for persons adhering to a particular religion or belief, constitute indirect discrimination, unless it was objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary.

In the light of the above, the Bench stated that indirect discrimination on the grounds of religion or belief resulting from an internal rule of an undertaking prohibiting, at the workplace, the wearing of visible signs of political, philosophical or religious beliefs with the aim of ensuring a policy of neutrality within that undertaking can be justified only if that prohibition covers all visible forms of expression of political, philosophical or religious beliefs and,

A prohibition which is limited to the wearing of conspicuous, large-sized signs of political, philosophical or religious beliefs is liable to constitute direct discrimination on the grounds of religion or belief, which cannot in any event be justified on the basis of that provision.”

National Provisions v. EU Directives

 On the question as to whether, in examining the appropriateness of an internal rule of an undertaking it is necessary to weigh up the rights and freedoms at issue, in particular Articles 14 and 16 of the Charter, on the one hand, and Article 10 of the Charter, on the other, or whether that weighing should occur only when applying the internal rule in the individual case concerned, for example when an instruction is given to an employee or when an employee is dismissed, the Bench expressed that if it were to be concluded that the rights at issue arising from the Charter cannot be taken into consideration in the context of that examination, the question would then arise as to whether a national constitutional provision, such as Article 4(1) and (2) of the GG, protecting freedom of religion and belief, may be regarded as more favourable provisions within the meaning of Article 8(1) of Directive 2000/78.

Relying on the decision in Centraal Israëlitisch Consistorie van België v. Vlaamse Regering, C‑336/19, EU:C:2020:1031, the Bench stated that when several fundamental rights and principles enshrined in the Treaties are at issue, the principle of non-discrimination enshrined in Article 21 of the Charter and the right to freedom of thought, conscience and religion guaranteed in Article 10 of the Charter, on the one hand, and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions recognised in Article 14(3) of the Charter and the freedom to conduct a business recognised in Article 16 of the Charter, on the other hand, the assessment of observance of the principle of proportionality must be carried out in accordance with the need to reconcile the requirements of the protection of those various rights and principles at issue, striking a fair balance between them.

Hence, the Bench answered that it should be borne in mind that, as is apparent from its title, that directive establishes a general framework for equal treatment in employment and occupation, which leaves a margin of discretion to the Member States, taking into account the diversity of their approaches as regards the place accorded to religion and beliefs within their respective systems. The national provisions protecting freedom of thought, belief and religion, as a value to which modern democratic societies have attached great importance for many years, may be taken into account as provisions more favourable to the protection of the principle of equal treatment, within the meaning of Article 8(1) of Directive 2000/78, when examining what constitutes a difference of treatment based on religion or belief.[IX v. WABE eV, (C‑804/18), decided on 15-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Jitendra Kumar Maheshwari, CJ. and Meenakshi Madan Rai, J., partly allowed an appeal which was filed challenging the Judgment dated 08-12-2020 passed in Silajit Guha vs. Sikkim University, WP(C) No.30 of 2019 by Single Bench, partly dismissing the petition deciding the issue of jurisdiction.

 The appellant was a Professor in the department of respondent 1, Sikkim University, respondent 5, a student of the department made a complaint of sexual harassment against the appellant to the Internal Complaint Committee (ICC). After inquiry it was submitted to the Executive Council of the University i.e. respondent 3. The Registrar of the University issued the office order bearing no.201/2019 dated 28-06-2019, terminating the services as per the 33rd Meeting of the Executive Council. Relying upon the inquiry report and while considering the representation of the petitioner under clause 8(6) of the University Grant Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulation, 2015 (hereinafter in short referred as UGC regulations) Council was of the opinion that the appellant is not fit to be retained in the service of the University, however, terminated his service with immediate effect. The petitioner preferred a statutory appeal on 01-07-2019 which was pending. In the meantime, the Writ petition seeking quashment of show cause notice dated 10-06-2019, the inquiry report dated 08-06-2019 and the order of termination dated 28-06-2019 and various other consequential reliefs was filed.

Counsel for the appellant contended that at one place learned Single Judge proceeded to decide the scope of the definition of the ‘workplace’ observing that it is inclusive definition but simultaneously the same question was left open to decide by the Executive Authority in terms of Section 9 of the Act, which cannot be decided exceeding to the observations of the Court.

The Court found that there was substance in the argument of the Counsel for the appellant. The Court further observed that in the facts of the case the ambit and scope of the workplace as specified in Section 2(o) of the Act can be decided after appreciation of the evidence brought before ICC, as considered by Single Bench. The Court opined that observation of Single Judge referring to Section 2(o) of the Act i.e. ‘workplace’ its ambit and scope is not proper in particularly when the same question is permitted to be decided by the Executive Authority.

Therefore, the Court held that the finding on the point of jurisdiction explaining the definition of ‘workplace’ was an inclusive one, stands set aside to such extent and the liberty is granted to the appellant to raise the said question before the Executive Authority who shall decide the same in accordance with the law.

It was directed that the Executive Authority shall decide the appeal as observed by the learned Single Judge without influencing with the observation recorded in the Judgment on the point of jurisdiction or on the point of ambit and scope on the definition of ‘workplace’.[Silajit Guha v. Sikkim University, 2021 SCC OnLine Sikk 80, decided on 03-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

COVID 19

On January 29, 2021, in response to the President Biden Executive Order directing the Occupational Safety and Health Administration (OSHA) to update safety recommendations for businesses, the Occupational Safety and Health Administration issued updated Guidance on Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the workplace.

This guidance is intended to inform employers and workers in most workplace settings outside of healthcare to help them identify risks of being exposed to and/or contracting COVID-19 at work and to help them determine appropriate control measures to implement. It contains recommendations as well as descriptions of existing mandatory safety and health standards.

Some of the Recommendations are discussed below:

  1. Assignment of a workplace coordinator who will be responsible for COVID-19 issues on the employer’s behalf.
  2. Identification of where and how workers might be exposed to COVID-19 at work.
  3. Identification of a combination of measures that will limit the spread of COVID-19 in the workplace, in line with the principles of the hierarchy of controls.
  4. Consideration of protections for workers at higher risk for severe illness through supportive policies and practices.
  5. Establishment of a system for communicating effectively with workers and in a language they understand.
  6. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in a language they understand.
  7. Instruct workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19.
  8. Minimize the negative impact of quarantine and isolation on workers.
  9. Isolating workers who show symptoms at work.
  10. Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility.
  11. Providing guidance on screening and testing.
  12. Recording and reporting COVID-19 infections and deaths.
  13. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
  14. Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.
  15. Not distinguishing between workers who are vaccinated and those who are not.

Read the complete Guidance HERE

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

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J.has framed an eminent question for determination which will have an impact on the dispensation of justice to complainants under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act”).

The High Court will determine whether the broad interpretation of the “workplace” under Section 2(o)(vi) of the POSH Act would bring within its ambit attending a private marriage function in a private hotel.

The applicant sought direction upon the respondents not to take any step on the basis of the show-cause notice dated 10-06-2019 and the order of termination pursuant to the report of the respondent 4. 

Petitioner sought to allow him to join the post of a professor of the Department of Mass Communication, appoint him as the Head of the Department and pay his regular salary including his arrears.

Kalol Basu, Counsel represented the applicant and Karma Thinlay Namgyal, Senior Advocate assisted by K.T. Gyatso, on behalf of the respondents.

Applicant’s counsel urged that the entire enquiry conducted by respondent 4 was without jurisdiction as the alleged incident of sexual harassment purportedly had taken place at a hotel during a marriage function and the same does not fall within the definition of “workplace” as per the existing law.

Decision

Bench stated that admittedly the alleged incident took place at a marriage function in a private hotel.

Section 2(o) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 defines the workplace.

In view of the said definition of “workplace”, it seems that the petitioner does have a strong arguable point on the jurisdiction or the lack of it.

Whether the broad interpretation of “workplace” would bring within its ambit attending a private marriage function in a private hotel, is a question which may have to be examined.

In the stated circumstances, High Court is of the considered view that during the pendency of the writ petition before this court, the respondents 1 to 3 should not give any further effect to the termination order dated 28-06-2019.

The application was disposed of in the above view. [Silajit Guha v. Sikkim University, 2020 SCC OnLine Sikk 99, decided on 20-08-2020]

Op EdsOP. ED.

Sexual harassment is a form of sex discrimination projected through unwelcomed sexually determined behaviour.[1] It is a violation of women’s right to life, equality and liberty; creates an insecure and hostile work environment for them.[2] It permeates all strata, ranging from unorganised sector to the corporate.[3]

In India, the development of laws related to sexual harassment has a relatively recent genesis. Prior to 1997, there was no mechanism to deal with complaints made to the authorities by women with regard to sexual harassment at the workplace.[4] The judgment in Vishaka v. State of Rajasthan[5] was the first step where the Supreme Court held the impugned practice to be a violation of human rights. It was a case of the gang rape of Bhanwari Devi, an employee of the Rural Development Programme of Government of Rajasthan who attempted to stop child marriage.

Nearly 15 years after the issuance of Vishaka guidelines, Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Analysis of the Act

The said Act is applicable to the country as a whole whether in public, private, formal or informal sectors. The Act attempts to protect vulnerable workers who are not covered by the labour laws or are a part of a union such as domestic workers. The downside in the case of domestic workers being covered in this Act is that their remedy is only a police complaint of sexual harassment, under Section 509 of the Penal Code, 1860 (IPC).

The statute makes it mandatory for all employers, whether in the public or private sector to set up an Internal Complaints Committee (ICC) in order to enquire into complaints of sexual harassment at the workplace, take preventive measures to ensure that the work environment maybe be conducive to women.[6]

The Act provides that complaint of sexual harassment has to be made to ICC or the Local Complaints Committee (LCC) within a period of three months from the date of the incident and in case of a series of incidents, within a period of three months from the date of the last incident.[7] This is an unfortunate provision as the courts from the very beginning have recognised that sexual harassment at workplace entails a relationship of domination between perpetrator and the victim, as a result of which the victim is often unable to protest apprehending adverse consequences upon her conditions of employment, career advancement and even her job itself. This time-limit has not been envisaged by Vishaka[8] judgment or any other judicial precedent. The statute itself permits filing of complaints by persons other than the aggrieved woman because in such cases it is not always possible for the victim herself to come forward.[9] Thus, it is unreasonable that the aggrieved woman’s right to approach the complaints mechanism is extinguished merely because of the time-lapse.

The nature of punishment can be in the form of a written apology, warning, reprimand withholding of promotion, withholding of pay rise or termination from service.[10] However, the punishment imposed can only the ones provided under the relevant service rules or labour law or contract of employment. Monetary compensation can also be paid by the respondent to the complainant, which is deducted from his salary or wages and this provision is irrespective of anything contained in the service rules.[11] The amount of compensation is calculated on the basis of emotional distress faced by the victim, loss in career opportunity, income and financial status of the respondent.[12] A fundamental critique of this is that the power to decide compensation is vested in the hands of a non-judicial body as it is essentially a judicial function.[13] Also, there is no further guidance provided as to how to arrive at the sum of compensation.

The Act provides that before initiating an enquiry, the LCC or ICC has an option to settle the matter through conciliation only at the request of the aggrieved woman, although no monetary compensation can be a part of this process.[14] This provision, however, is severely criticised; the Verma Committee stated that any such attempt is yet another way to undermine the dignity of women.[15] It also ignores the mandate of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the Constitution of India which hold it unethical to expect to negotiate an outcome between the aggrieved woman and alleged perpetrator and being against fundamental rights respectively.

Section 14 of the Act provides for punishment of the complainant in the event of the false or malicious complainant. It clarifies that mere inability to substantiate a complaint or provide adequate proof will not attract action against the complainant. However, it is problematic as subjecting the woman to such fear and distress even before bringing up the complaint defeats the very purpose of the Act. If such provisions have to be made at all, the power to decide should be in the hands of courts of law as opposed to bodies such as ICC or LCC. Right to appeal is also available in accordance with provisions of the service rules applicable or where no such rules exist, under the Industrial Employment (Standing Orders) Act, 1946.[16] The statutory limitation is 90 days from the date of such action/recommendation. Appellate authority varies from State to State. The Act also confers duties upon the employer[17] to take steps to ensure a safe working environment for women employees.

With regard to examine allegations of sexual harassment levelled against Judges/Chief Justices of High Courts (HCs) and Judges of the Supreme Court, the decision rendered in C. Ravichandran Iyer v. A.M. Bhattacharjee[18] laid down the process of “in-house procedure”. In this, the allegations against a Judge are examined by his peers. Its constitution is under the charge of the Chief Justice of India; it is confidential and kept out of public domain to preserve the credibility of the institution. However, in Addl. District and Sessions Judge ‘X’ v. High Court of M.P.[19], it was held that the Bench examining such allegations should not consist of the Judges from the same court.

Comparative Analysis with Laws Across the World

The 2013 Act like the provisions in Australia, Switzerland is inclusive as far as widening the definitions of sexual harassment, workplace, and aggrieved woman are concerned unlike countries such as Brazil where it is restricted to persons in a superior position asking for sexual favours[20] or Germany where it is not punishable by any law at all. But it lacks strict punishments such as imprisonment and large sums of fine payable, in countries such as France, Zimbabwe, and Israel.

It is unfortunate that the 2013 Act does not place any obligation on the employer on the grounds of vicarious liability to give monetary compensation to the aggrieved woman. To this extent, the aggrieved woman has to approach the court for damages by the way of tort law.[21] In the United Kingdom (UK), an employer can be held vicariously liable for the harassment by co-workers. This has been illustrated in cases such as Jones v. Tower Boot Co. Ltd.[22] and Chief Constable of Lincolshire Police v. Stubbs[23]. In the United States of America (USA) also, the employer is vicariously liable but in defence, he/she only needs to demonstrate that immediate action was taken once the incident had come to the attention of the employer.[24]

In India, in only a limited number of cases courts have accorded compensation to aggrieved women following the failure of employers to comply with Vishaka guidelines. Manisha Sharma v. Union of India[25] was one such case, where there was sexual harassment at the workplace in the Northern Railways. The Court held that the composition of the Inquiry Committee was not as per the Vishaka guidelines, thus the Indian Railways was held vicariously liable and had to pay compensation.

There is a dire need to address the loopholes in the present law, in order for it to be more pertinent for women and the duty of employers to ensure a lawfully constituted and approachable Complaints Committee.


  IIIrd year, BA LLB (Hons.), National Law University, Delhi, e-mail: simran.jain@nludelhi.ac.in.

[1]   Vishaka v. State of Rajasthan, (1997) 6 SCC 241: AIR 1997 SC 3011.

[2]   Geetha K.K., Bill on Sexual Harassment: Against Women’s Rights, (2012), Economic and Political Weekly, Vol. XLVII No. 3.

[3]   Ibid.

[4]   Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014) p. 2.

[5]   Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[6]   S. 4(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act).

[7]   S. 9(1) of the 2013 Act.

[8]   Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[9]   Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014).

[10]  R. 7(6) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (2013 Rules).

[11]  S. 13(3)(ii) of the 2013 Act.

[12]  S. 15 of the 2013 Act.

[13]  Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014).

[14]  S. 10 of the 2013 Act.

[15]  Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law, 66 (23-01-2013).

[16]  R. 11 of the 2013 Rules.

[17]  S. 26 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

[18]  (1995) 5 SCC 457.

[19]  (2015) 4 SCC 91.

[20]  Ungender, Ensuring Diversity and Inclusivity through Legal Compliance <https://www.ungender.in/single-post/Sexual-Harassment-workplace-laws-across-the-world>

[21]  Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014).

[22]  1996 EWCA (Civ) 1185 : 1997 ICR 254.

[23]  1999 IRLR 81.

[24]  Ibid.

[25]  2012 SCC OnLine Del 6352 : (2013) 196 DLT 741.

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Shivaji Pandey, J. dismissed a writ petition for transfer owing to financial inconvenience and remaining superannuation period of the petitioner.

In this case, the petitioner through his counsel Kedar Jha has challenged his transfer order wherein it was stated that the petitioner has worked at Darbhanga for a very long time and now the respondents want to uproot him and plant him at Patna thereby causing great financial inconvenience to him as the cost of living was higher which would cause difficulties in running his families. It was also added that as per policy of the authorities class-III employees shall be treated as District Cadre Level employees in order to erode their difficulties.

The Court was of the view that it does not stand to the reason as to why the petitioner has been sent to Patna and thus Darbhanga district was convenient for the petitioner. Further as more than a year was left for his superannuation and that allows him to be given the choice of his workplace. Accordingly, this writ petition was allowed.[Wasi Ahmad v. State of Bihar, 2018 SCC OnLine Pat 2269, decided on 21-12-2018]