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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