PoSH: Sexual Harassment Act - Vidya Akave VS IDFC - Bombay High Court - 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 796 OF 2015
Vidya Akhave, aged 39 ) … Petitioner.
R/at: 9/301, Perth CHS Ltd., )
Millennium Park, Hari Om Nagar, )
Mulund (E), Mumbai400081. )
Versus
1. Union of India ) … Respondents.
Department of Women & Children )
2. Mr. Suneet Shukla, )
Designation : General Manager, )
Address :IFCI Ltd.,, 307, 3rd Floor, )
Amar Neptune,Near Big Bazaar,Baner, )
Pune 411 045. )
3. IFCI LTD., )
Address : IFCI Tower,61, Nehru Place,
New Delhi 110 019. )
4. Ms. Rashmi Kapoor, )
Designation : Presiding Officer, )
Internal Sexual Harassment )
Complaints Committee, )
Address : IFCI LTD, IFCI Tower, 61, )
Nehru Place, New Delhi 110 019. )
5. Disciplinary Authority, )
Address : IFCI LTD, IFCI Tower, 61, )
Nehru Place, New Delhi 110 019. )
6. Amar Dass Kharbanda )
Designation : Dy. General Manager, )
Address : IFCI LTD, IFCI Tower, 61, )
Nehru Place, New Delhi 110 019. )
Ms.
Veena Gowda, Advocate a/w. Surabhi Singh, Advocate for
the Petitioner.
Mr. Dhanesh R. Shah, Advocate for the Respondent No.1 Union
of India.
Mr. Ashish Kamat, Advocate a/w. Mr. Nikhil Rajani i/by M/s.
V. Deshpande & Co. for Respondent No.2.
Mr. Sanjay Jain a/w. Mr. Hemant Prabhukar i/by Jurisperitus
Mumbai for Respondent Nos. 3, 5 & 6.
CORAM
: V. M. KANADE AND
MRS.SWAPNA JOSHI,JJ.
DATE : 04th OCTOBER, 2016
ORAL JUDGMENT :
1 Rule. Rule is made returnable forthwith by consent of the parties.
2 Heard the learned counsel appearing on behalf of the Petitioner and the learned counsels appearing on behalf of the respective Respondents. By this Petition, filed under Article 226 of the Constitution of India, the Petitioner is seeking following reliefs :
a. That this Hon'ble Court be pleased to grant a
writ of mandamus or a writ, order or direction in
the nature of mandamus directing the Respondent
No.1 to take steps to ensure that employers comply
with the law on sexual harassment, in letter and
spirit;
b. That this Hon'ble Court be pleased to grant a
writ of certiorari or a writ, order or direction in the
nature of certiorari quashing and setting aside the
report dated 17.02.2014 of the committee
constituted by the Respondent No.3 Company and
consequently the order of the Disciplinary Authority
dated 01.05.2014 awarding punishment to the
Respondent No. 2;
c. That this Hon'ble Court be pleased to grant a
writ of certiorari or a writ, order or direction in the
nature of certiorari quashing and setting aside the
decision of the Board of Directors dated 03.12.2014
refusing to relook
into the punishment given to the
Respondent No.2;
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d. That this Hon'ble Court be pleased to consider
the evidence on record and statement of witnesses
and hold that the conduct of the Respondent No. 2
amount to sexual harassment at workplace as defined
by the Hon'ble Supreme Court of India in Vishaka vs.
State of Rajasthan, AIR 1996 SC 1, as well as the
Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013;
e. That this Hon'ble Court be pleased to impose
such penalty on the Respondent No. 2 as is
commensurate with the serious allegations made
against him;
f. That this Hon'ble Court be pleased to direct
Respondent Nos. 2 and 3 to pay the Petitioner
compensation as deemed fit by this Hon'ble Court;
g. That this Hon'ble Court be pleased to grant a
writ of mandamus or a writ, order or direction in
the nature of mandamus directing the Respondent
No.3 not to transfer or assign Respondent No.2 to the
same office as the Petitioner;
… … … ….
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4 The facts which are germane for the purpose of
deciding this writ petition can be briefly stated as under :
5 On 21st July, 2008 the Petitioner joined IFCI
(Industrial Finance Corporation of India) which is now known
as IFCI Ltd.. Respondent No.2 was also working in the said
Company as General Manager and was immediate superior
officer of the Petitioner. A complaint was filed by the
Petitioner with the then C.E.O. and M.D. of Respondent No.3
on 22nd February, 2013, alleging that she was subjected to
sexual harassment by Respondent No.2 Mr.
Suneet Shukla. It
was urged that the CEO and MD should constitute a committee,
as laid down by the Apex Court in the case of Vishakha vs.
State of Rajasthan (AIR 1997 SC301).
A second complaint
was again filed on 6th June, 2013 by her since no action was
taken on her first complaint dated 22nd February, 2013. She
also asked the CEO and MD to constitute a Disciplinary
Committee and Internal Complaints Committee to inquire into
the allegations which are made by her in her complaints. In
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view of the said two letters/complaints, which were sent by the
Petitioner, a Committee was constituted and a show cause
notice was given to the Respondent No.2, asking him to give
his explanation. Presiding Officer was also appointed and then
the Petitioner presented detailed complaint before the
Committee in which she had cited 25 instances of allegations
of sexual harassment made to her by the Respondent No. 2. It
will be relevant here to mention that initially i.e. from 21st July,
2008 the Petitioner was working at the Mumbai Regional
Office of the IFCI Ltd. and that she started working with the
Respondent No.2 from April, 2011. According to her, the first
incident took place in July, 2011 and last incident took place in
February / March, 2012. The Petitioner then was transferred
to the another Company known as “IFCI Sycamore Capital
Advisors Pvt. Ltd.”, an associate company of Respondent No.3.
The Petitioner was working there from March, 2011 for a
period of about 11 months and again was posted back to IFCI,
MURO, Mumbai on 18th February, 2013. The first thirteen
incidents which she has mentioned in the complaint pertain to
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the period from April, 2011 to February/ March, 2012. The
other allegations pertain to the subsequent period when she
joined the Mumbai Regional Office of IFCI.
6 The Committee conducted an enquiry and evidence
was led by both the parties and statements of witnesses were
also recorded. The Internal Complaints Committee submitted a
report dated 17th February, 2014 and after taking into
consideration the allegations which were made by the
Petitioner against the Respondent No.2 and the evidence
which was produced, the committee came to the conclusion
that so far as the incidents which had taken place prior to
February/ March, 2012 were concerned, no complaint was
filed within three months after the last incident or three
months thereafter, as prescribed under the Sexual Harassment
of Women at Workplace (Prevention, Prohibition & Redressal)
Act, 2013 (hereinafter referred as “the said Act”, for the sake of
brevity) and therefore, it has not considered the said
allegations though they had made certain observations and
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given their comments on each of the incidents. The
Committee has also observed in its report as under :
“Further, the sexual harassment complaints have
to be submitted immediately and in time for
effective disposal. Since, there is time gap in filing
complaint qua allegation in para no. 1 to 13, the
same seems to be beyond time limit in terms of
the Sexual Harassment of Woken at Workplace
(Prevention, Prohibition and Redressal) Act, 2013,
the committee was of the view that the
observations of the committee on the issues/
allegations in para no. 1 to 13 may be considered
by HR Department as per its policy for taking
appropriate steps/action even apart/ separate
from the provisions under Sexual Harassment Act.”
Thus the committee was of the view that since the allegations
in para nos. 1 to 13 were filed beyond time, it was of the view
that the observations of the Committee on the issues in para
nos. 1 to 13 will be considered by the H.R. Department, as
per its policy for taking appropriate steps/action even apart
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separate from the provisions under the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal)
Act,2013. In respect of the complaint/ allegations in para14
onwards, the Committee was of the view that in view of the
observations made by the Committee appropriate action in
terms of its Service Rules (Rule 9 of Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal)
Rules, 2013, should be taken.
7 Accordingly, the Disciplinary Authority has passed
a detailed order dated 1st of May, 2014 in which finding given
by the Committee on each allegations made by the
complainant were firstly reproduced and thereafter, the final
finding of the Committee was noted. The Disciplinary
Authority examined the enquiry report and has observed that
the enquiry was conducted as per the provisions of the said
Act and that the Respondent No.2 was given full opportunity
to defend himself. The Disciplinary Authority thereafter, has
observed in para nos. 4 , 5 and 6 as under :
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“4. I now propose to deal with punishment to be
imposed on the accused based on the findings of
the Committee's report. I have given careful
consideration to the complaint, the submissions of
the parties, the statement of witnesses and also
the final report of the Committee. I am convinced
that instances of this behavior in an organization
like IFCI needs to be dealt with firmly and
consistent with the behavior i.e. expected of the
officials in this organizations, a punishment
commensurate with the acts proven needs to be
imposed.
5. Considering that the acts accused of are
unbecoming of a person holding an important
office in IFCI, it is appropriate to impose the
penalty as prescribed under Regulation No. 61(f)
of the IFCI Staff Regulations, 1974. The penalty
which I am imposing is a major penalty and
accordingly, I order as under :
“In exercise of the powers vested in me a
major penalty by way of reduction to a lower
stage by two stages with cumulative effect
be imposed.”
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6. The order be communicated to the
accused with a copy to the complaint and the
effect of this order be given from the date of
communication of this order.”
The Disciplinary Authority came to the conclusion that some of
the allegations against the Respondent No.2 were established
and further observed that the acts of the accused were of
unbecoming of a person of holding the office and it was
appropriate to impose penalty as prescribed under the
Regulation No. 61(f) of the IFCI Staff Regulations, 1974 and a
major penalty was imposed of reduction to a lower stage by
two stages with cumulative effect. As a result of this
punishment, the Respondent No.2 was transferred to Chennai,
his salary was reduced to Rs. 2500/per
month, according to
the Petitioner, and according to the Respondent No.2 his
salary was reduced to Rs. 7104/per
month.
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8 The Petitioner has approached this court under
Article 226 of the Constitution of India, challenging the validity
of punishment that is imposed by the Disciplinary Authority on
the Respondent No.2. The sum and substance of the
submissions of the learned counsel appearing on behalf of the
Petitioner is that the higher punishment ought to have been
imposed by the Disciplinary Authority on the Respondent No.2.
Secondly, it was submitted that the observations of the
Committee in respect of the allegations are not correct. It is
submitted that the totality of the evidence and the statements
of the witnesses have not been considered in its proper
perspective and, therefore, the observations of the Internal
Complaints Committee of not entertaining the allegations in
para nos. 1 to 13 were illegal and incorrect. It was further
submitted on behalf of the Petitioner that the Disciplinary
Authority has merely felt that the acts of the accused are of
unbecoming of a person, holding an important office and no
finding has been given that the Respondent No.2 was guilty
of committing sexual harassment, as defined under the
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provisions of the said Act and as the law laid down in
Vishakha's case, cited supra. The learned counsel appearing
on behalf of the Petitioner has taken us through the entire
report of the Internal Complaints Committee and also through
the order passed by the Disciplinary Authority. It is submitted
that this is a fit case where punishment should be enhanced
and that there should have been reduction in the post held by
the Respondent No.2. It is submitted that the penalty of
reduction to a lower stage by two stages with cumulative effect
was inadequate, taking into consideration the conduct of the
Respondent No.2.
9 Learned counsel appearing for the Petitioner has
also invited our attention to the judgments of the Apex Court.
She submitted a compilation of the judgments in the cases of :
(1) Vishakha & Ors. vs. State of Rajasthan & Ors. (JT. 1997
(7) SC 384, (2) US Verma vs. National Commission for
Women & Ors. 163 (2009) DLT 557, (3) Medhal Kotwal Lele
& Ors. vs. UOI & Ors., AIR 2013 SC 93 (4) Seema Lepcha vs.
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State of Sikkim & Ors. (2013) 11 SCC641, (5) Gaurav Jain vs.
Hindustan Laetx & Ors. 2015 IXAD (Delhi) 569 and (6) L.S.
Sibu vs. Air India Limited and Ors.(2016(150)FLR 488).
10 Learned counsel for the Petitioner invited our
attention to para 63 of the Judgment of the Delhi High Court
delivered in W.P. (C) Nos. 1730, 1731 and 1733 of 2001 in the
case of U. S. Verma, Principal and Delhi Public School
Society vs. National Commission for Women and Ors., 163
(2009) DLT 557 decided on 12th October, 2009, wherein
the Delhi High Court has relied on the Judgment of the US
Supreme Court in the case of Joseph Oncale vs. Sundowner
Offshore Services, Inc. 523 U.S.75 (1998) Supreme Court in
which the US Supreme Court had an occasion to consider the
various facets of the complaints of sexual harassment of a
woman.
11 Learned counsel for the Petitioner submitted that
the observations made by the Internal Complaints Committee
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that the complaint was filed by her beyond limitation were not
correct. It is submitted on behalf of the Petitioner that since
the Petitioner was a subordinate officer, working under the
Respondent No.2, she had a reasonable apprehension that if a
complaint is filed by her it would have adverse consequences
on her career. She submitted that therefore, the findings of
the Committee are illegal. It was further submitted on behalf
of the Petitioner that the transcript of the record was not
given to her and opportunity to crossexamine
also was not
given to the Petitioner and if this had been done, she would
have been in a position to bring further evidence on record.
12 On the other hand, Mr. Ashish Kamat, learned
counsel appearing on behalf of the Respondent No.2, firstly
submitted that the order of penalty which was imposed by
the Disciplinary Authority on the Respondent No.2 was harsh
enough by which the Respondent No.2 had suffered physically,
financially and he was also transferred to Chennai where he
could not stay with his family, which was stationed in Mumbai.
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Consequently, it was submitted that the Committee has
considered the material on record and has given its findings
and it was not open to challenge these findings by reappreciating
the evidence on record. Thirdly, it was submitted
on behalf of the Respondent No.2 that the penalty which was
imposed by the Disciplinary Authority on the Respondent No.
2 was a major penalty and, therefore, it could not be said that
the Disciplinary Authority has exonerated the Respondent No.2
by imposing a minor punishment. It was also submitted that
it is well settled that the proportionality of the sentence
normally should not be interfered with by the High Courts
while exercising its writ jurisdiction under Article 226 of the
Constitution of India. Mr. Kamat, learned counsel for the
Respondent No.2, relied upon the judgment of the Supreme
Court in the case of Om Kumar and Ors. vs. Union of India,
[(2001) 2 Supreme Court Cases 386) and in particular the
paragraphs 24 to 28 and 71 of the said Judgment.
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13 After having heard both the learned counsel at
length, firstly, we are of the view that it is necessary to
examine scope of jurisdiction of this court in examining the
proportionality of sentence imposed by the Disciplinary
Authority. It is well settled that unless the court comes to the
conclusion that the penalty imposed by the Disciplinary
Authority is shockingly disproportionate to the misconduct
committed by the delinquent employee, this court has to be
slow in interfering with the order of punishment which is
imposed on the delinquent employee. The Apex Court in the
case of Om Kumar, cited supra, has very succinctly
crystallized the individual issues regarding scope of the High
Courts under Article 226 of the Constitution of India or of the
Administrative Tribunals. It would be fruitful to reproduce
the said observations made by the Apex Court since they are
very clear on quantum of punishment as also the language
used by the Supreme Court in its said order/judgment. The
Apex Court in the said order has succinctly explained the
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position and, therefore, it is necessary to reproduce the said
paragraphs nos. 24 to 28 as under :
24. We agree that the question of the quantum of
punishment in disciplinary matters is primarily for the
disciplinary authority and the jurisdiction of the High
Courts under Article 226 of the Constitution or of the
Administrative Tribunals is limited and is confined to
the applicability of one or other of the well known
principles known as Wednesbury principles. (See
Associated Provincial Picture Houses v. Wednesbury
Corporation 1948 (1) KB 223). This Court had occasion
to lay down the narrow scope of the jurisdiction in
several cases. The applicability of the principle of
'proportionality' in Administrative law was considered
exhaustively in Union of India v. Ganayutham
(MANU/SC/0834/1997 : (2000)IILLJ648SC ) where
the primary role of the administrator and the secondary
role of the Courts in matters not involving fundamental
freedoms, was explained.
25. We shall therefore have to examine the cases of
Sri Om Kumar and of Sri Virendra Nath from the stand
point of basic principles applicable under
Administrative Law, namely, Wednesbury principles
and the doctrine of proportionality. It has therefore
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become necessary to make reference to these principles
and trace certain recent developments in the law.
I(a) Wednesbury principle:
26. Lord Greene said in 1948 in the Wednesbury
case that when a statute gave discretion to an
administrator to take a decision, the scope of judicial
review would remain limited. He said that interference
was not permissible unless one or other of the following
conditions were satisfied, namely
the order was
contrary to law, or relevant factors were not
considered, or irrelevant factors were considered; or
the decision was one which no reasonable person could
have taken. These principles were consistently followed
in UK and in India to judge the validity of
administrative action. It is equally well known that in
1983, Lord Diplock in Council for Civil Services Union
v. Minister of Civil Service 1983 (1) AC 768 (called the
GCHQ case) summarised the principles of judicial
review of administrative action as based upon one or
other of the following viz.
illegality, procedural
irregularity and irrationality. He, however, opined that
proportionality' was a "future possibility ".
(b) Proportionality:
27. The principle originated in Prussia in the
nineteenth century and has since been adopted in
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Germany, France and other European countries. The
European Court of Justice at Luxembourg and the
European Court of Human Rights at Strasbourg have
applied the principle while judging the validity of
administrative action. But even long before that, the
Indian Supreme Court has applied the principle of
'proportionality' to legislative action since 1950, as
stated in detail below.
28. By 'proportionality', we mean the question
whether, while regulating exercise of fundamental
rights, the appropriate or least restrictive choice of
measures has been made by the legislature or the
administrator so as to achieve the object of the
legislation or the purpose of the administrative order,
as the case may be. Under the principle, the Court will
see that the legislature and the administrative authority
'maintain a proper balance between the adverse effects
which the legislation or the administrative order may
have on the rights, liberties or interests of persons
keeping in mind the purpose which they were intended
to serve'. The legislature and the administrative
authority are however given at area of discretion or a
range of choices but as to whether the choice made
infringes the rights excessively or not is for the Court.
That is what is meant by proportionality.
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14 The Apex Court has then examined the issue of
proportionality of legislations in UK and India as well as
Australia and Canada. It is not necessary to refer to the said
observations made by the Apex Court in the latter part of the
said Judgment. However, the Apex Court has summarized
and crystallized its views in para 71 of the said judgment,
which reproduced is as under :
“71. Thus, from the above principles and decided cases,
it must be held that where an administrative decision
relating to punishment is disciplinary cases is questioned
as 'arbitrary' under Article 14, the Court is confined to
Wednesbury principles as a secondary reviewing authority.
The Court will not apply proportionality as a primary
reviewing Court because no issue of fundamental
freedoms nor of discrimination under Article 14 applies in
such a context. The Court while reviewing punishment and
if it is satisfied that Wednesbury principles are violated, it
has normally to remit the matter to the administrator for a
fresh decision as to the quantum of punishment. Only in
rare cases where there has been long delay in the time
taken by the disciplinary proceedings and in the time
taken in the Courts, and such extreme or rare cases can
the Court substitute its own view as to the quantum of
punishment.”
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There is no dispute to the ratio laid down by the Apex Court on
this issue and the Apex Court has taken a consistent view
throughout in all the cases where quantum of punishment is
challenged.
15 Having observed the settled position of law
regarding the scope of the High Court in interfering with the
punishment that is imposed by the Disciplinary Authority, next
question which falls for our consideration is whether the
inquiry was held in a fair and proper manner. We have
perused the report submitted by the Internal Complaints
Committee and we find that full opportunity was given to both
the parties to lead evidence and the Respondent No.2 was
also given a fair opportunity of defending himself. It is not
necessary to deal with each and every allegation which has
been made by the Petitioner in the complaint since we have to
examine whether the findings recorded by the Committee can
be interfered with by this Court. It is equally well settled that
if a domestic enquiry is held, after giving an adequate
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opportunity to the parties and the Enquiry Committee comes
to a particular conclusion then merely because two views are
possible, the High Court while exercising its writ jurisdiction is
not expected to reappreciate
the evidence and come to the
different conclusion than the one which is arrived at by the
Committee. We are, therefore, of the view that the Committee
has dispassionately considered all the allegations and have
discarded certain allegations which were made after lapse of
one year and at the same time held the Petitioner guilty of
instances of sexual harassments which had taken place from
July, 2011 to 22nd February, 2013. The Committee had also
requested the Disciplinary Authority to take action under Rule
9 of the said Rules.
16 We are of the view, therefore, that it will not be
possible for us to accept the submissions of the learned counsel
appearing on behalf of the Petitioner that the findings given by
the Committee should be set aside or interfered with.
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17 So far as the order passed by the Disciplinary
Authority is concerned, it is not in dispute that the
punishment imposed on the Respondent No.2 is a major
punishment of reduction in rank to a lower stage by two
stages with cumulative effect. It has been urged that this
punishment is disproportionate and the Respondent No.2
ought to have been reduced in rank. It is submitted that taking
into consideration the statements of witnesses and more
particularly, the statements of the women employees, who had
in their statements talked about the unbecoming of a person
and conduct of Respondent No.2, ought to have been
considered as a circumstance for the purpose of establishing
the case of the Petitioner. We are of the view that it is not
possible to accept this submission of the learned counsel for the
Petitioner. The Disciplinary Authority in no uncertain terms
has condemned the conduct of the Respondent No.2 and has
observed that this part of the behaviour of the Respondent
No.2 needs to be dealt with firmly, consistent with the
behaviour expected of the official in the said organization. It
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must also be noted that even though the Enquiry Committee
did not take into consideration the allegations made in para
nos. 1 to 13 of the complaint on the ground of limitation, but
it still recommended that the departmental enquiry will have
to be made on these allegations but not under the provisions of
the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013.
18 So far as the allegations from February, 2013
onwards are concerned, a major penalty has been imposed.
We are of the view that it cannot be said that the punishment
which is imposed is shockingly disproportionate to the conduct
of the Respondent No.2 and therefore, the ratio of the
judgment of the Apex Court in the case of Om Kumar, supra,
squarely applies to the facts of the present case. We are,
therefore, not inclined to interfere with the punishment which
is imposed by the Disciplinary Authority.
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19 However, we would like to make reference to the
observations made by the Delhi High in the case of U.S. Verma,
cited supra, wherein the observations made by the US Supreme
Court have been reproduced. The Delhi High Court made
reference to the observations of the US Supreme Court in para
nos. 63, 64 and 65, which read as under :
“63. In Joseph Oncale v. Sundowner Offshore Services,
Inc. 523 U.S. 75 (1998) the US Supreme Court (judgment
delivered by Justice Scalia) even held that behavior
deemed offensive could cover same sex intimidation,
ridicule, or other abusive conduct. While on the subject, it
would be interesting to note that the general perspective,
which the courts often adopt, in the United States is not
the standard of a "reasonable man" but the standard of a
"reasonable woman" (Ref. Ellison v. Brady (1991) 9th
Circuit, 924 F.2d, 872):
we believe that in evaluating the severity and
pervasiveness of sexual harassment, we should
focus on the perspective of the victim. Courts
"should consider the victim's perspective and not
stereotyped notions of acceptable behavior."
...Conduct that many men consider unobjectionable
may offend many women.... Men tend to view some
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forms of sexual harassment as "harmless social
interactions to which only overlysensitive
women
would object"; the characteristically male view
depicts sexual harassment as comparatively
harmless amusement.
We realize that there is a broad range of viewpoints
among women as a group, but we believe that
many women share common concerns which men
do not necessarily share. For example, because
women are disproportionately victims of rape and
sexual assault, women have a stronger incentive to
be concerned with sexual behavior. Women who
are victims of mild forms of sexual harassment may
understandably worry whether a harasser's conduct
is merely a prelude to violent sexual assault. Men,
who are rarely victims of sexual assault, may view
sexual conduct in a vacuum without a full
appreciation of the social setting or the underlying
threat of violence that a woman may perceive. One
writer explains: "Their greater physical and social
vulnerability to sexual coercion can make women
wary of sexual encounters. Moreover, American
women have been raised in a society where rape
and sexrelated
violence have reached
unprecedented levels, and a vast pornography
industry creates continuous images of sexual
coercion, objectification and violence.... Because of
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the inequality and coercion with which it is so
frequently associated in the minds of women, the
appearance of sexuality in an unexpected context
or a setting of ostensible equality can be an
anguishing experience.
In order to shield employers from having to
accommodate the idiosyncratic concerns of the rare
hypersensitive
employee, we hold that a female
plaintiff states a prima facie case of hostile
environment sexual harassment when she alleges
conduct which a reasonable women would consider
sufficiently severe or pervasive to alter the
conditions of employment and create an abusive
working environment....Of course, where male
employees allege that coworkers engage in conduct
which creates a hostile environment, the
appropriate victim's perspective would be that of a
reasonable man....
We note that the reasonable victim standard we
adopt today classifies conduct as unlawful sexual
harassment even when harassers do not realize that
their conduct creates a hostile working
environment.... To avoid liability under Title VII,
employers may have to educate and sensitize their
workforce to eliminate conduct which a reasonable
victim would consider unlawful sexual
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harassment.... If sexual comments or sexual
advances are in fact welcomed by the recipient,
they, of course, do not constitute sexual
harassment. Title VII's prohibition of sex
discrimination in employment does not require a
totally desexualized work place....
We cannot say a matter of law that Ellison's
reaction was idiosyncratic or hypersensitive.
We
believe that a reasonable woman could have had a
similar reaction.... A reasonable woman could
consider Gray's conduct, as alleged by Ellison,
sufficiently severe and pervasive to alter a condition
of employment and create an abusive working
environment...."
64. Several other countries have drawn up laws against
sexual harassment, oftentimes based on substantially
different models of unwelcome and objectionable sexual
behavior, deemed to be harassment than the ones that
underwrote MacKinnon's understanding, and U.S. law
(Australia enacted the Sex Discrimination Act 1984; the
United Kingdom enacted the Sex Discrimination Act, 1975,
and also framed the Sexual Discrimination and
Employment Protection (Remedies) Regulations, 1993).
65. Article 15 (3) of the Constitution enables the State to
legislate special provisions, or frame policies to inter alia,
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address gender specific concerns. There are gender specific
laws, to foster good practices in the work place, and ensure
gender equality (special provisions in the Factories Act, the
Maternity Benefit Act, the Equal Remuneration Act, etc).
Yet, the legislative vacuum and lack of clarity in statute law
to address the problem of sexual harassment at the
workplace, was recognized in Vishaka, where the Supreme
Court formulated guidelines that would govern the field,
till appropriate legislation was initiated and brought into
place. The Supreme Court, in Vishaka, recollected the
Convention on the Elimination of All Forms Discrimination
Against Women, adopted by the General Assembly of the
United Nations, in 1979 and the resolution of the
Committee on the Elimination of Discrimination against
Women (CEDAW), set
up under the Convention, adopted
in January 1992 i.e. the General Recommendation No. 19
on violence against women.”
20 From the above observations it is apparent that
very often women share common concerns which men do not
necessarily share or the concern expressed by women have not
been necessarily understood by men in the proper perspective.
There is no manner of doubt that women are socially and
physically vulnerable and are faced with sense of constant
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insecurity while working in any organization and it is the duty
of every employer to ensure that the appropriate safeguards
are provided by the men in the organization to protect the
women from sexual harassment and other types of
harassments. The employer should ensure that the duties
which are cast upon them by the said Act are complied in neat.
It will be relevant to reproduce the duties which have been cast
upon the employer by section 19 of the said Act which reads
as under :
“Section 19 – Duties of Employer – Every employer
shall(
a) provide a safe working environment at the
workplace which shall include safety from the
persons coming into contact at the workplace;
(b) display at any conspicuous place in the
workplace, the penal consequences of sexual
harassment; and the order constituting, the
Internal Committee under Subsection
(1) of
section 4;
(c) organize workshops and awareness
programmes at regular intervals for sensitizing the
employees with the provisions of the Act and
orientation programmes for the members of the
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Internal Committee in the manner as may be
prescribed;
(d) provide necessary facilities to the Internal
Committee or the Local Committee, as the case
may be, for dealing with the complaint and
conducting an inquiry;
(e) assist in securing the attendance of respondent
and witnesses before the Internal Committee or
the Local Committee, as the case may be;
(f) make available such information to the
Internal Committee or the Local Committee, as the
case may be, as it may require having regard to the
complaint made under subsection
(1) of section
9;
(g) provide assistance to the woman if she so
chooses to file a complaint in relation to the
offence under the Indian Penal Code (45 of 1860)
or any other law for the time being in force;
(h) 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;
(i) treat sexual harassment as a misconduct
under the service rules and initiate action for such
misconduct;
(j) monitor the timely submission of reports by
the Internal Committee.
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21 We are of the view that apart from displaying the
penal consequences of sexual harassments and organizing the
workshops by organizing the programmes at regular intervals,
it is necessary to provide the safeguards and assistance to the
women in relation to the complaints of sexual harassment.
There should be an inbuilt internal mechanism so that any
instance of harassment faced by a woman can be conveyed in a
confidential manner to the senior women superior officer and,
therefore, an Internal Committee should be constituted to
ensure that such instances are nipped in the bud at the
inception itself. This is particularly important considering the
fact that the number of working women has increased in
India and they are occupying various post in different sectors
and are contributing financially to the economy of the country.
The Internal Committee should also act in a free and
transparent manner in order to ensure that the complaints of
sexual harassment are inquired into seriously and that too
without any bias. Very often men may view sexual conduct in
a vacuum without full appreciation of the social setting or the
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underlying threat of violence that a woman may perceive, as
observed in the judgment of the US Supreme Court in the
case of Joseph Oncale vs. Sundowner Offshore Services. It is,
therefore, necessary to continue to create awareness of the
vulnerability of the women to all the men employees.
22 Lastly but not the least, when a complaint is filed
by a woman employee, it should be promptly looked into and
an enquiry should be made by the Internal Committee within a
reasonable period of time.
23 Lastly, the safety mechanism should be evolved to
ensure that the women employees can express their concern to
a suitable higher officer.
24 Though the Apex Court delivered the judgment in
Vishakha's case, supra, for almost a period of 11 years no
legislation was passed and finally the said Act was passed in
2013. We find that though the said Act was passed in 2013,
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yet most of the companies, corporations and government
undertakings have not constituted the Internal Complaints
Committee. If this is not done, these Committee should be
constituted in an expeditious manner.
25 The writ petition is disposed of in the above terms.
Rule is discharged accordingly.
We express our appreciation to the assistance given
to us by both the learned counsel.
(MRS.SWAPNA JOSHI,J.) (V. M. KANADE,J.)
…..
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