Bombay High Court
Renuka Mukherjee vs Vodafone Essar Ltd & Ors on 13 October, 2017
Bench: A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1348 OF 2001
...
Ms.Renuka Mukherjee ....Petitioner
V/S
1. Vodafone Essar Ltd.
2. Sandip Das
3. Steve Correa
4. Rajiv Sawhney
5. Asim Ghosh ....Respondents
...
Ms.Meena Doshi i/by Amol Doijode for Petitioner.
Mr.P.K.Dhakephalkar, Sr.Advocate with Mr.Punit Anand for the Respondent
No.1.
Mr.S.K.Talsania, Sr.Advocate with Mr.Rajesh Begur i/by ARA Law for
Respondent No. 2.
Mr.Mukund Jamabulikar with Mr.Rajesh Begur i/by ARA Law for for
Respondent No. 3.
Ms.Soma Singh with Mr.Rajesh Begur i/by ARA Law for Respondents No.4
& 5.
...
CORAM : A.A. SAYED &
M.S.KARNIK,JJ.
RESERVED ON : 13 JUNE 2017
PRONOUNCED ON : 13 OCTOBER 2017
JUDGMENT: (Per A.A.Sayed,J.)
By this Petition filed under Article 226 of the Constitution the
Petitioner has sought following reliefs:
(a) the delay if any in filing this Petition may please be
condoned;
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(b) that this Hon'ble Court in its writ jurisdiction be pleased
to issue such appropriate writs of certiorari, mandamus, other
writs, declarations, orders or directions as may be appropriate,
just, necessary, proper and expedient by
(i) holding that the Respondents Nos. 1,2, 3 and 4 have
violated the Fundamental Rights of the Petitioner under
Articles, 14, 15, 19 and 21 of the Constitution of India;
(ii) that the Respondents Nos.2, 3 and 4 have sexually
harassed the Petitioner and acted vindictively with premediated
malice against the Petitioner;
(iii) that the Respondent No.1 have violated the law laid
down by the Hon'ble the Supreme Court of India in the case of
Vishaka and others versus State of Rajasthan and others
reported in AIR 1997 (SC) p.3011 and have deliberately flouted
the rules prescribed by the Apex Court and failed to implement
the guidelines laid down as law towards protection of women
from sexual harassment at workplace and failed to provide
grievance procedure for redressal of complaint of the
Petitioner against sexual harassment at workplace and by not
taking disciplinary action against Respondents Nos.2,3 and 4;
(iv) that the letter of termination of the Petitioner's service
dated 1st August 2000 is entirely malicious, bad in law, void,
non-est, being in violation of the Fundamental Rights of the
Petitioner and against the law laid down by the Hon'ble the
Supreme Court;
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(c) that this Hon'ble Court in the grave circumstances be
pleased to initiate contempt proceedings against the Respondents
for willful flouting and/or violation of the law laid by the Hon'ble the
Supreme Court of India as above;
(d) that this Hon'ble Court be pleased to order the
Respondents Nos.1 to 4 jointly and/or severally to pay substantial
compensation of a sum of not less than Rs.1,00,00,000/- (Rupees
One Crore only) to the Petitioner for the grievous injury and
irreparable damage done to her physically and her psyche by
reason of actions complained against them;
(e) that pending the hearing and final disposal of this Writ
Petition this Hon'ble Court be pleased to stay the purported letter
of termination of the 1st August 2000 of the Respondent No.1 and
grant such consequential reliefs that this Hon'ble Court may deem
fit, just and proper;
(f) that pending the hearing and final disposal of this Writ
Petition this Hon'ble Court be pleased to direct the Respondents
jointly and/or severally to deposit such sum as may be just, fit and
proper by way of security towards payment of compensation as
may be awarded;
(g) that pending the hearing and final disposal of this Writ
Petition the Respondents jointly and/or severally be ordered to pay
to the Petitioner for and towards expenses a sum of Rs.5,00,000/-
(Rupees Five Lakhs only) for prosecuting this Petition;"
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2. The case of the Petitioner is as follows:
She was appointed as a Sales Operations Manager in Max India
Ltd. wef 2 November 1994 vide appointment letter dated 28 November
1994. Pursuant to a joint venture Max India Ltd. came to be known as
Hutchison Max Telecom Pvt.Ltd. and is now known as Vodafone Essar Ltd.
On 28 May 1995, she was designated as Manager, Customer Care. She
had rendered meritorious service to the Respondent No. 1. In or around late
1997, she was forced to consider the option of living in a separate
accommodation with her son as there were differences of opinion with her
husband and in-laws. She had applied for being provided for appropriate
leased out accommodation as and by way of a perquisite. This proposal of
accommodation was sanctioned by the Respondent No.1 upto a limit
Rs.20,000/- per month, but could not immediately worked out for want of
suitable accommodation being found. On 1 June 1998, the position of the
Chief Operating Officer (COO) came to be filled up by the Respondent
No.2. Subsequently, Respondent Nos.4 and 3 joined services with effect
from April 1999 and 16 February 2000 respectively. Respondent No.2
projected himself as her friend, philosopher and guide in her moment of
distress and revived her house perquisite to enable her to find appropriate
accommodation. Respondent No.2, thereafter, started making uncalled for
gestures and signs indicative of his desire to have sexual favours from the
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Petitioner. (In paragraph 8 of the Petition, the Petitioner has given some
instances of alleged behaviour of the Respondent No. 2 which according
her were having sexual undertones). By her letter dated 30 November 1998
to Ms.Sandra Muhadwar, the then Head of HR, she specifically complained
about the conduct of the Respondent No.2. There were several meetings
with Ms.Sandra Muhadwar, but despite these meetings she found that
Ms.Sandra Muhadwar was not in a position to be of any help in bringing
about any change in the attitude of the Respondent No.2. In these
circumstances, she directly wrote a letter dated 11 March 1999 to the
Respondent No.2 pleading with him not to mess up her career and not force
himself on her and not to misunderstand her approach to Ms.Sandra
Muhadwar. Upon the Respondents Nos. 3 and 4 joining the Respondent
No.1, Respondent No.2 started to use subtle pressures through these
persons who were subordinate to him for canvassing to her the virtues of
giving a little sex to achieve substantial progress in the organization. She
was getting more and more terrified at the thought that sooner than later
she would be thrown out of her job. She was thereafter shifted to pager
division from the customer services department. The pager division work is
a low profile clerical job, of inferior status and falling within the workmen
category. Her supervisory functions were suddenly taken away from 1999.
The entire schemata of the Respondents Nos.2, 3 and 4 was either to make
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her bend or break. On 12 June 2000, the Respondent No.3 called her to his
cabin and peremptorily informed her that she will have to vacate her chair
which she presently was occupying as the Company had found a
replacement for her. On 13 June 2000, she presented a letter addressed to
the Respondent No.3 and stated that she was being victimized and
subjected to hostility, harassment and discrimination. She sent a detailed
registered letter on 13 June 2000 outlining her hopeless predicament
because of the sexual harassment and victimization. On 1 August 2000,
she was summoned for a meeting around the closing time of office. On
entering the cabin she was surprised to see alongwith the Respondent
No.2, the Respondents Nos.3 and 4 and one Ms.Jayashree Ramamurthi.
She was told that there was no work for her and she was already given
sufficient time to look out for an alternate assignment and she was asked to
give her voluntary resignation and accept the discretionary compensation
package. She refused to give resignation. Respondent No.2, thereafter,
pulled out a dismissal letter already kept ready and signed by him alongwith
some cheques. She refused to accept the same. Subsequently, she
received the said termination letter dated 1 August 2000 by post from the
Respondent No,3 alongwith cheques of Rs.75,585/- and Rs.42,276/-. On
receipt of the said letter dated 1 August 2000, she addressed a letter on 4
August 2000. The entire exercise of throwing her out was totally a case of
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malafide victimization of the Petitioner. She was put through the traumatic
experience by violation of her fundamental rights. In the meantime she filed
a Complaint being Complaint (ULP) No.93 of 2001 in the Labour Court at
Mumbai on 7 February 2001. Respondents Nos.2,3 and 4 in collusion with
one another have palpably indulged in immoral conduct either in seeking
sexual favours from her under threats or inducements thereby committing
criminal acts of outraging her modesty. Respondent No.1 did not follow the
guidelines laid down by the Supreme Court in Vishaka's case by failing to
provide the grievance procedure for redressal of her complaints of sexual
harassment at workplace.
3. Affidavits in Reply have been filed by the Respondent No.1 and
Respondent No.2 denying all allegations of the Petitioner and inter alia
asserting that the allegations of the Petitioner of sexual harassment were
only made as an afterthought after she was terminated from employment
and that the allegations were imaginary, reckless and baseless. Affidavit of
Ms.Sandra Muhadwar, the then Head of HRD of Respondent No.1 in
support of the case of the Respondent No.1 has also been filed. The
Petitioner has also filed Affidavits in Rejoinder.
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4. While admitting the Petition on 20 September 2001, this Court had
passed the following order:
"Heard the learned counsel for the petitioner and Mr.K.K.Singhvi,
learned senior counsel for the respondents.
2. At the outset, the learned counsel for the petitioner submitted
that in the writ petition the petitioner does not press prayer b(iv) as
the petitioner has already filed the complaint being complaint (ULP)
No.93/2000 in that respect before Labour Court. After hearing the
learned counsel for the petitioner and the learned senior counsel for
the respondents, we are satisfied that rule deserves to be issued.
3. Hence, rule.
4. Mr.Rajesh N.Bagar, Advocate waives service for the
respondents.
5. Interim prayers sought for in clauses (e), (f), (g) and (h) are
rejected."
Thus, at the time of admission of the Petition, the Petitioner had not
pressed the prayer challenging her termination order dated 1 August 2000
in view of the substantive challenge to the said termination order made by
her in her Complaint (ULP) No. 93 of 2000 filed before the Labour Court. It
is not in dispute that the said Complaint before the Labour Court was
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ultimately dismissed exparte. The Learned Counsel for the Petitioner fairly
conceded that this Court in the exercise of writ jurisdiction under Article 226
of the Constitution is not expected to adjudicate the disputed question of
fact namely whether or not the Petitioner was a victim of sexual harassment
alleged at the hands of the Respondent No.2. The learned Counsel states
that the limited relief the Petitioner is now seeking is confined to
compensation to her for failure of the Respondent No. 1 to constitute the
Complaints Committee in terms of the law laid down by the Apex Court in
case of Vishaka and others vs. State of Rajasthan and others, (1997) 6
SCC 241.
5. Learned Counsel for the Petitioner made the following submissions:
(i) The Petitioner was subjected to sexual harassment at workplace at
the hands of Respondent No.2 which violated her fundamental rights under
Articles 14, 15, 19 and 22 of the Constitution as has been laid down by the
Apex Court in Vishaka's case which is to be treated as law under Article
141 of the Constitution as held by the Apex Court by not constituting the
Complaints Committee for redressal of the complaints of sexual harassment
at work place.
(ii) In paragraph 8 of the Petition, the Petitioner has averred about the
sexual overtures and unreasonable demands of sexual favours from the
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Petitioner made by the Respondent No.2. The Petitioner was married and
having a son and the Respondent No.2 himself was married and residing
with his family.
(iii) Inasmuch as the Petitioner did not succumb to the sexual advances
of the Respondent No.2 she was victimized and shifted to the Pager
Division from the Customers Service Department which is a low profile
clerical job and she was ultimately terminated on 1 August 2000. The
Petitioner was initially appointed as a Manager, Customer Care and
rendered meritorious service and her good work was appreciated even by
the Managing Director. She was also deputed to Hong-Kong to look into
Costumers Services Operation and later to Singapore to attend the
Costumers Care Workshop.
(iv) The Petitioner's grievances of sexual harassment were not looked into
and addressed. Even after the letter of termination dated 1 August 2000,
she had immediately addressed a letter on 4 August 2000 to the
Respondent No.1 Company wherein the Petitioner had pointed out that the
termination of her services was a consequence of her refusal to cave in to
sexual advances and carnal overtures of the Respondent No.2 and the
Respondent Nos.3 and 4 were all along colluding to pressurize the
Petitioner over the last 20 months. In the said letter the Petitioner has
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referred to the written complaints made by her and the ill-treatment meted
out to her and victimization at their hands.
(v) Despite the communications in the form of inter-office Memos at Exhibits
H, I and J of the Petition and the letter dated 13 June 2000 at Exhibit K of
the Petition written by the Petitioner which letter was sent by RPAD to the
Respondent No.3, her grievances were not considered and addressed. The
aforesaid communications were made during the course of her employment
and prior to the letter of termination dated 1 August 2000.
(vi) In the Affidavit-in-Reply dated 24 August 2001 of the Respondent No.1
Company, a reference is made to the so called Committee alleged to have
constituted comprising of the three persons to enquire into the allegations of
the Petitioner. The said Committee made a farce of an enquiry after the
termination of the Petitioner without giving any notice to her and behind her
back only for the purposes of giving a clean chit to the Respondent No.2.
(vii) Because of the failure of the Respondent No.1 Company to constitute
the Complaints Committee relating to sexual harassment at work place
(hereinafter referred to as the `Complaints Committee') in terms of the law
laid down by the Apex Court, the Petitioner's fundamental rights under
Articles 14, 15, 19 and 21 of the Constitution were violated and she is
required to be compensated in terms of money.
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Learned Counsel for the Petitioners has placed reliance on the following
judgments:
(I) Vishaka and Others vs. State of Rajasthan and Others, (1997) 6 SCC
241;
(i) Chairman, Railway Board and Others vs. Chandrima Das (Mrs) and
Others, (2000) 2 SCC 465;
iii) MCD vs. Assn. of Victims of Uphaar Tragedy & Others, (2005) 9 SCC
586;
iv) B.K. Basu vs. State of W.B., (1997) 1 SCC 416;
v) R.D. Upadhyay vs. State of A.P. and Ors., (2001) 1 SCC 437;
vi) Nilabati Behera (Smt) alias Lalita Behera (through the Supreme Court
Legal Aid Committee) vs. State of Orissa and Ors., (1993) 2 SCC
746;
6. Learned Senior Counsel for the Respondent No.1 Company invited
our attention to the Affidavit-in-Reply of the Respondent No.1 as also the
Affidavit-in-Support of Respondent No.1 filed by Ms.Sandra Muhadwar and
made the following submissions:
(i) There was not a single Complaint of sexual harassment or otherwise
made by the Petitioner to the Respondent No.1 Company prior to her
termination on 1 August 2000. It is only after the termination as and by way
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of afterthought that the Petitioner had made these false and baseless
allegations for the first time vide her letter dated 4 August 2000. The inter-
office Memos at Exhibits H, I, J and the letter at Exhibit L are not on record
of the Respondent No.1 Company and they appear to be fabricated by the
Petitioner in support of the false case of sexual harassment. The
Respondent No.2 throughout his career had enjoyed impeccable reputation.
(ii) The Petitioner had filed a Complaint ULP No.93 of 2001 before the
Labour Court at Mumbai on the same facts. Having resorted to that remedy
which was more efficacious, she was not entitled to get any relief in this
Petition. The Petitioner did not prosecute the said Complaint and remained
absent and the same was dismissed by passing a reasoned order.
(iii) Though the Petitioner was terminated on 1 August 2000, the present
Petition was filed only on 24 May 2000, nearly after nine months after her
termination and the Petition therefore suffers from delay and laches.
(iv) After the termination, the Petitioner was gainfully employed in the
Company known as Pagepoint and holding a very high position wherein she
was provided for accommodation and car also.
(v) The services of the Petitioner were found to be average and she was
given repeated opportunities to work in different positions to improve her
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performance. Hence, since 1998, the performance of the Petitioner had
deteriorated and she had almost stopped doing of any substantial work
possibly because of her marital issues also. For the years 1998-1999 and
1999-2000 the Petitioner did not even fill up her self batch appraisal forms
which every employee is required to fill up in order to demonstrate the work
plan and achievement. There were several counselling meetings relating to
the Petitioner's indifferent performance between Ms. Sandra Mahadwar
who was then heading the Human Resource Department (HRD) of the
Respondent No. 1 and the Petitioner. After Ms. Sadra Mahadwar resigned
from the Respondent No. 1 in November 1999, the Respondent No. 3 was
appointed as Vice President, Head of the Human Resources Department.
Several meetings took place between the Respondent No. 3 and the
Petitioner wherein the Petitioner was repeatedly cautioned and advised to
improve her performance. Apart from this she had number of counseling
meetings between her immediate superior i.e. the Respondent No.4 and the
Petitioner, however the Petitioner had not shown any sign of improvement.
The Respondent No.4 therefore being immediate superior of the Petitioner
and the Respondent No.3 being Head of the Human Resources
Department, recommended termination of the contract of employment of
the Petitioner. The Respondent No.2 in his capacity as Chief Operating
Officer (COO) considered and accepted the said recommendation made by
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the Respondent Nos.3 and 4. The proposal was put up before the
Respondent No.5 Managing Director as is customary. The Respondent
No.5 after considering all the relevant aspects concurred with the said
proposal and accordingly letter dated 1 August 2000 was issued to the
Petitioner terminating her contract of employment.
(vi) In reply to the letter dated 4 August 2000 of the Petitioner, the
Respondent No. 1 by their letter dated 14 August 2000 specifically recorded
that the allegations of sexual harassment and sexual overtures by the
Respondent Nos.2 to 4 were made for the first time by the Petitioner after
her termination. The Petitioner then sent a legal notice dated 22 August
2000 through her Advocate, wherein imaginary, reckless and false
allegations were again made. There was no reference to any of the four
alleged communications (Exhibit H, I, J and L) in the said letter as the said
communications did not exist at that time and were fabricated thereafter.
(vii) In the Affidavit of Ms. Sandra Muhadwar (affirmed in USA on 27 August
2001) in support of the case of the Respondent No. 1 she has pointed out
that she was in the employment for the period 18 September 1995 to 27
September 1999 and at the relevant time she was working as Head of
HRD. She has specifically stated that at no point of time, during her
interaction with the Petitioner she had ever mentioned or hinted anything
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whatsoever about any sexual harassment by the Respondent No.2 or any
other officer of the Respondent No.1 Company and she had never received
any inter-office memo dated 30 November 1998 (Exhibit H to the Petition).
The Petitioner had never approached her with a grievance that the
Respondent No.2 was sexually harassing her and there was no question of
her taking up the matter to the Respondent No.2 as alleged by her in the
Petition. Even personally as a former employee of the Respondent No.1
Company and co-worker of Respondent No.2 she found the Respondent
No.2 to be a thorough gentleman having an absolutely professional
approach to work and all employees and at the relevant time there were
about 200 female employees working for the Respondent No. 1 and she
was heading the Human Resource Department and no female employees
ever made any Complaint against the Respondent No.2 and the allegations
made by the Petitioner against the Respondent No.2 were totally false and
fabricated.
(viii) In any event, the communication dated 13 June 2000 (Exhibit K to the
Petition) clearly shows that the Petitioner was aware that a new recruit was
likely to come in her place. The Respondent No.2 joined service with
Respondent No. 1 on 1 June 1998, the Respondent No.3 joined service on
16 February 2000 and Respondent No.4 joined service sometime in April
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1999. The termination of the Petitioner was on 1 August 2000 which
demonstrates that the allegations of the Petitioner were not true and the
services of the Petitioner were terminated only based on her performance.
The Petitioner ought to have made a Complaint first to her higher authority
which she had not done. The entire story of the Petitioner was an
afterthought.
(ix) The question of any compensation to the Petitioner does not arise as
the Petitioner had never written to the Respondent No. 1 for constitution of
the Complaints Committee prior to her termination. Moreover, even in the
present Petition, there is no prayer for constitution of the Complaints
Committee. Even at the time of admission of the Petition no such oral
prayer or directions were sought for constitution of the Complaints
Committee at that stage to look into her alleged grievances of sexual
harassment.
(x) Not having a Complaints Committee would not entitle the Petitioner for
compensation, particularly when there was no complaint made at any time
by her to the Respondent No.1 during her employment. Even in the first
letter dated 4 August 2000, after her termination, there is no specific
reference to the Exhibits H, I, J and L to the Petition. There is no foundation
laid down for any such mandatory prayer for compensation. Due to passage
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of time and because of the conduct of the Petitioner in not pursuing her
Complaint before the Labour Court no reliefs can now to be granted to her.
(xi) The allegations made were serious and amounted to outraging the
modesty of a women and even after her dismissal, the Petitioner has not
chosen to file any criminal complaint which was always open to her.
(xii) There was never a demand made to the Respondent No.1 Company
for formation of the Complaints Committee.
Learned Counsel for the Respondent No.1 Company in support of the
contentions placed reliance on the following judgments:
i) Seema Lepcha vs. State of Sikkim & Ors., 2012 LawSuit (SC) 376;
ii) Medha Kotwal Lele & Ors. vs. Union of India & Ors., 2012 LawSuit
(SC) 720.
7. Learned Senior Counsel for the Respondent No.2 took us through the
Affidavit-in-Reply of Respondent No.2 and made the following submissions:
(i) No fundamental rights of the Petitioner were violated as alleged by
her.
(ii) The first complaint of sexual harassment alleged to have been made
by the Petitioner was on 30 November 1998 (Exhibit H) and she was
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terminated after about two years on 1 August 2000. This shows that there
was no victimization as sought to be alleged.
(iii) Even assuming that there was no Complaints Committee, no
prejudice can be said to have been caused to the Petitioner as there was
never any complaint by the Petitioner during her employment period.
(iv) It was more of a revenge story by the Petitioner as she was
disgruntled because of her termination and she wanted to target senior
officers of the Respondent No. 1. There are no dates or places or
particulars of the alleged incidents of sexual harassment mentioned against
the Respondent No.2. The Petitioner never approached the Respondent
No.1 or sought appointment of any Complaints Committee during her
employment, and it was only after termination and by way of afterthought,
the Petitioner has sought to level all types of false, baseless and
defamatory allegations.
(v) No complaint was made much less about constitution of a Complaints
Committee and therefore there was no occasion to investigate any
Complaint. The Petitioner had filed a Complaint (ULP) No. 93 of 2000
before the Labour Court under the provisions of MRTU and PULP Act and
in particular Schedule IV, item 1, (a), (b), (c) and (f). 1(a) particularly
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speaks of dismissal of employee by way of victimization which amounts to
unfair labour practice on part of the employer. The Labour Court was fact
finding court. Despite 112 adjournments, the Petitioner did not remain
present before the Court even once and the Respondent No.2 was
subjected to those proceedings which ultimately came to be dismissed only
on 6 May 2008 by a reasoned order. It was calculated game played by the
Petitioner to seek revenge as she was terminated.
(vi) The prayer clause 28(d) speaks of compensation of Rs.1 Crore to the
Petitioner "for grevious injury and irreparable damage done to her physical
and her psych by reason of action complained against them". There is no
prayer for compensation for failure to constitute a Complaints Committee in
the Petition and the Petition is really speaking infructuous and it is only by
way of an afterthought that the Petitioner is now twisting the prayers to
extract something out of this Petition.
(vii) The Respondent No.2 is a family man and has held very high
positions in various Companies and has now retired. He has impeccable
reputation in the field in which he has worked and because of the false and
frivolous allegations his reputation has suffered in the Respondent No. 1
Company. The Respondent No.2 was in employment of the Respondent
No.1 Company for many years thereafter.
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8. Learned Counsel for the Respondent No.3 submitted that the
Respondent No.3 was appointed in the Respondent No. 1 Company only
on 16 February 2000 whereas the termination of the Petitioner was on 1
August 2000. He submitted that the Petitioner had made contrary
statements in the letter at Exhibit L to the Petition which is letter dated 13
June 2000 (at running page 55 of the Petition) allegedly written by the
Petitioner to the Respondent No.3 and the letter dated 22 August 2000
addressed by the Petitioner through her Advocate and therefore the
Petitioner cannot be believed. There is no material against the Respondent
No.3 and merely because the Respondent No.3 had recommended the
termination of services of the Petitioner, he was sought to be roped in by
her.
9. Learned Counsel for the Respondent No.4 and 5 submitted that no
such compensation was sought against the Respondent No.5 even in the
prayer seeking compensation in paragraph 28 (d) of the Petition, as the
Respondent No.5 was never concerned. The Respondent No.5 was
unnecessarily made a party to the Petition as also in the Complaint before
the Labour Court. The Respondent No.5 has retired from Company on 31
March 2009. Learned Counsel pointed out that so far as the Respondent
No.4 is concerned the only allegations made are found in paragraph 10 of
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the Petition. She also pointed out at page 79 of the Petition which is a letter
dated 22 August 2000 written by the Advocate for the Petitioner wherein the
only allegations made against the Respondent No.4 was that he had some
meetings with the Petitioner but they were in the nature of promoting the
Respondent No.2's base interest and projecting him as a good person and
that it would be impudent to defy him and that she should tow the
establishment line. It is contended that the Respondent No. 4 was sought to
be roped in unnecessarily and there was no material against him.
10. Learned Counsel for the Petitioner in her arguments in rejoinder
adverted to the provisions of section 26 of the Sexual Harassment of
Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013,
which came into force w.e.f. 09-12-2013. She pointed out that even the new
enactment provides for punishment with fine which may extend to Rupees
fifty thousand in case of non-constitution of the Complaints Committee in
terms of section 4 of the said Act. She submitted that there was no
necessity of demand to be made by her for constitution of the Complaints
Committee. She submitted that the letter of termination was direct
consequence of the refusal of the Petitioner to succumb to the sexual
advances of the Respondent No.2.
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11. It needs to be reiterated that the only issue pressed before the Court
by the learned Counsel for the Petitioner is with regard to the grant of
compensation to the Petitioner for non-constitution of the Complaints
Committee by the Respondent No.1 in terms of the law laid down by the
Apex Court in Vishaka in respect of the Complaints alleged to have been
made by the Petitioner of sexual harassment at the hands of the
Respondent No.2 and alleged to be indirectly supported by the Respondent
Nos.3 and 4. According to the learned Counsel for the Petitioner by not
constituting the Complaints Committee the Respondent No. 1 had failed to
provide the procedure for redressal of the complaints of the Petitioner
against sexual harassment at workplace. In Vishaka, the 3-Judge Bench of
the Supreme Court has laid down the guidelines in respect of the protection
of women from sexual harassment at work places. The Supreme Court
interalia noted that in absence of any legislative measures there was a
need to find an effective alternate mechanism for prevention of working
women who may be exposed to sexual harassment which results in
violation of fundamental rights of "gender equality" and "right to life and
liberty" for women workers under Article 14, 15, 19(1)(g) and 21 of the
Constitution. In paragraph 17 and 18 of the judgment in Vishaka, the
Supreme Court has laid down the guidelines and issued directions in the
following terms:
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"17. The GUIDELINES and NORMS prescribed herein are as
under:-
HAVING REGARD to the definition of "human rights" in
Section 2(d) of the Protection of Human Rights Act, 1993.
TAKING NOTE of the fact that the present civil and penal
laws in India do not adequately provide for specific protection of
women from sexual harassment in work places and that enactment
of such legislation will take considerable time.
It is necessary and expedient for employers in work places
as well as other responsible persons or institutions to observe
certain guidelines to ensure the prevention of sexual harassment
of women:
1. Duty of the employer or other responsible persons in work
places and other institutions:
It shall be the duty of the employer or other responsible
persons in work places or other institutions to prevent or deter the
commission of acts of sexual harassment and to provide the
procedures for the resolution, settlement or prosecution of acts of
sexual harassment by taking all steps required.
2. Definition:
For this purpose, sexual harassment includes such
unwelcome sexually determined behaviour (whether directly or by
implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
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d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal
conduct of sexual nature.
Where any of these acts is committed in circumstances
whereunder the victim of such conduct has a reasonable
apprehension that in relation to the victim's employment or work
whether she is drawing salary, or honorarium or voluntary, whether
in government, public or private enterprise such conduct can be
humiliating and may constitute a health and safety problem. It is
discriminatory for instance when the woman has reasonable
grounds to believe that her objection would disadvantage her in
connection with her employment or work including recruiting or
promotion or when it creates a hostile work environment. Adverse
consequences might be visited if the victim does not consent to the
conduct in question or raises any objection thereto.
3. Preventive Steps:
All employers or persons in charge of work place whether in
the public or private sector should take appropriate steps to
prevent sexual harassment. Without prejudice to the generality of
this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined
above at the work place should be notified, published and
circulated in appropriate ways.
(b) The rules/regulations of Government and Public Sector
bodies relating to conduct and discipline should include
rules/regulations prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to
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include the aforesaid prohibitions in the standing orders under the
Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in
respect of work, leisure, health and hygiene to further ensure that
there is no hostile environment towards women at work places and
no woman employee should have reasonable grounds to believe
that she is disadvantaged in connection with her employment.
4. Criminal Proceedings:
Where such conduct amounts to a specific offence under
the Indian Penal Code or under any other law, the employer shall
initiate appropriate action in accordance with law by making a
complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are
not victimized or discriminated against while dealing with
complaints of sexual harassment. The victims of sexual
harassment should have the option to seek transfer of the
perpetrator or their own transfer.
5. Disciplinary action:
Where such conduct amounts to mis-conduct in
employment as defined by the relevant service rules, appropriate
disciplinary action should be initiated by the employer in
accordance with those rules.
6. Complaint mechanism:
Whether or not such conduct constitutes an offence under
law or a breach of the service rules, an appropriate complaint
mechanism should be created in the employer's organization for
redress of the complaint made by the victim. Such complaint
mechanism should ensure time-bound treatment of complaints.
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7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should
be adequate to provide, where necessary, a Complaints
Committee, a special counsellor or other support service, including
the maintenance of confidentiality.
The Complaints Committee should be headed by a woman
and not less than half of its members should be women. Further, to
prevent the possibility of any under pressure or influence from
senior levels, such Complaints Committee should involve a third
party, either NGO or other body who is familiar with the issue of
sexual harassment.
The Complaints Committee must make an annual report to
the Government Department concerned of the complaints and
action taken by them.
The employers and person-in-charge will also report on the
compliance with the aforesaid guidelines including on the reports
of the Complaints Committee to the Government department.
8. Workers' Initiative:
Employees should be allowed to raise issues of sexual
harassment at workers' meeting and in other appropriate forum
and it should be affirmatively discussed in employer-employee
meetings.
9. Awareness:
Awareness of the rights of female employees in this regard
should be created in particular by prominently notifying the
guidelines (and appropriate legislation when enacted on the
subject) in a suitable manner.
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10. Third-party harassment:
Where sexual harassment occurs as a result of an act or
omission by any third party or outsider, the employer and person-
in-charge will take all steps necessary and reasonable to assist the
affected person in terms of support and preventive action.
11. The Central/State Governments are requested to
consider adopting suitable measures including legislation to
ensure that the guidelines laid down by this order are also
observed by the employers in private sector.
12. These guidelines will not prejudice any rights available
under the Protection of Human Rights Act, 1993.
18 Accordingly, we direct that the above guidelines and norms
would be strictly observed in all work places for the preservation
and enforcement of the right to gender equality of the working
women. These directions would be binding and enforceable in law
until suitable legislation is enacted to occupy the field. These Writ
Petitions are disposed of, accordingly."
12. We have given our due consideration to the submissions of the
learned Counsel. In paragraph 3 of the judgment of the Supreme Court in
Vishaka it is observed as under:
"When, however, instances of sexual harassment resulting in
violation of fundamental rights of woman workers under Articles 14,
19 and 21 are brought before us for redress under Article 32, an
effective redressal requires that some guidelines should be laid down
for the protection of these rights to fill the legislative vacuum."
(emphasis supplied)
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Thus, it is only when there is/are instance/s of sexual harassment that it can
be said that there is violation of fundamental rights under Articles 14, 19
and 21 of the Constitution. In other words, unless it is established that
there was sexual harassment, there can be no violation of fundamental
rights under Articles 14, 19 and 21. In the present case, as conceded
before us by the learned Counsel for the Petitioner, this Court in the
exercise of writ jurisdiction under Article 226 of the Constitution is not
expected to adjudicate the disputed question of fact whether or not the
Petitioner was a victim of sexual harassment. In our view, therefore, the
non-constitution of the Complaints Committee by the Respondent No.1-
Company in its work place may not ipso facto mean that the fundamental
rights of the Petitioner have been violated.
13. From a bare perusal of the prayer clauses of the Petition, it would be
apparent that there is no prayer made by the Petitioner for compensation
for non-constitution of Complaints Committee by the Respondent No.1. The
prayer for compensation made in prayer clause 28(d) is in relation to
seeking compensation from the respondents Nos. 1 to 4 "for grevious injury
and irreparable damage done to her physical and her psych by reason of
action complained against them". Thus, this prayer clause 28(d) proceeds
on the basis that the injury and damage is established, which is not so in
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the present case.
14. There is a serious dispute in respect of inter-office Memos dated 30-
11-1998 ( alleged to have been written by the Petitioner to Ms.Sandra
Muhadwar, the then Head of HRD), dated 11-03-1999 ( alleged to have
been written by the Petitioner to the Respondent No.2) and dated 13-10-
1999 (alleged to have been written by the Petitioner to the Respondent
No.4) annexed at Exhibits H, I & J to the Petition as also the letter dated 13-
06-2000 (alleged to have been written by the Petitioner to the Respondent
No.3 and alleged to have been sent by the Petitioner by RPAD) annexed at
Exhibit "L" to the Petition. On one hand it is claimed by the Petitioner that
inter-office memos at Exhibits H, I & J were sent by her (though it is fairly
conceded before the Court that there was no custom of obtaining
acknowledgment in respect of inter-office memos) including the letter dated
13-06-2000 (in respect of which the Petitioner claims to have an
acknowledgment of the postal department). On the other hand, the case of
the Respondents is that there was no such inter-office memos or letter
dated 13-06-2000 in the records of the Respondent No.1 and the said inter-
office memos and the letter dated 13-06-2000 are forged and fabricated
documents and it is only after her termination on 01-08-2000 as and by way
of afterthought that the Petitioner has for the first time vide her letter dated
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04-08-2000 made these false, imaginary and reckless allegations and the
same was merely to seek revenge and to malign and target the top brass
of the Management. We are not inclined to go into this disputed question of
fact whether Exhibits H,I,J & L were on record of the Respondent No.1 or
they were false and fabricated documents. Indeed, it is not possible for us
in the exercise of our writ jurisdiction to rule on the above disputed question
of fact and come to a positive finding in this regard. It is required to be
noted that the Petitioner had filed a Complaint before the Labour Court
being Complaint (ULP) No.98 of 2000 under the provisions of the
Maharashtra Recognition of Trade Union and Prevention of Unfair Labour
Practice Act (MRTU & PULP Act) prior to the filing of the present Petition.
The pleadings in the said Complaint before the Labour Court were on the
same lines as that of the present Petition. In the said Complaint, the
Petitioner had claimed victimization and had also sought a declaration that
the Respondent No.1 had committed unfair labour practice under the MRTU
& PULP Act apart from seeking setting aside of her termination and
reinstatement. The Petitioner had asserted that she was a victim of sexual
harassment and since she did not cave into the demand of the Respondent
No.2, she came to be terminated. The Labour Court is a fact finding Court
and could have gone into the issues threadbare including the issue whether
or not the said Exhibits H,I,J & L were on record of the Respondent No.1 or
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whether they were false and fabricated documents. The Petitioner,
however, chose not to pursue the said Complaint and after about 112
adjournments the Complaint ultimately came to be dismissed exparte by the
Labour Court on 06-05-2008. It is not disputed before the Court that the
Petitioner had not attended the Labour Court even on a single occasion. In
our view, the Petitioner ought to have taken the said Complaint to its logical
conclusion and subjected herself to cross-examination. The contention on
behalf of the Petitioner that she did not prosecute the said Complaint
because she was not a `workman' and her Complaint before the Labour
Court may not have been entertained, is merely stated to be rejected. In
her Complaint before the Labour Court, she has specifically pleaded that
from June 1999 she was shifted to pager division from the customer
services department, where the work assigned to her was clearly clerical
and she was relegated to a workman status till she was terminated on 01-
08-2000. As a matter of fact, even in the present Petition, the Petitioner has
reiterated in paragraph 9 that she was doing low profile clerk job of inferior
status, which falls in the category of workman. The Petitioner cannot be
allowed to take a stand contrary to her pleadings in this Petition. She
cannot approbate and reprobate to suit her convenience. In any event,
nothing prevented the Petitioner from withdrawing her Complaint before the
Labour Court if she felt that her Complaint before the Labour Court may not
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be entertained on technical grounds. We find substance in the submission
of the learned Counsel for the Respondent that the Complaint was kept
pending by the Petitioner merely to harass the Respondents knowing fully
well that she would not be appearing before the Labour Court.
15. It is also required to be noted that in the present Petition there is no
prayer seeking direction from the Court to constitute a Complaints
Committee on sexual harassment. Pertinently, even at the time of
admission of the Petition, the Petitioner through her Counsel did not press
for the constitution of the Complaints Committee to look into her Complaint
on sexual harassment. It is an admitted position that during the course of
her employment there was no letter written by the Petitioner to the
Respondent No.1-Company seeking constitution of Complaints Committee
to look into her grievance on sexual harassment. As a matter of fact even
in the letter dated 04-08-2000 of the Petitioner as also her Advocate's letter
dated 22-08-2000 addressed to the Respondent No.1-Company (for the
first time), no such request was made. Merely to test the bonafides of the
Petitioner, during the course of hearing, we suggested to the learned
Counsel for the Petitioner that if the Petitioner was serious about her
Complaint even at this stage we can explore possibility of directing the
Respondent No.1-Company to have the Complaint of the Petitioner atleast
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to the extent of veracity of her Complaint examined by the Complaints
Committee which is now stated to be in place in the Respondent No.1-
Company. However, the learned Counsel for the Petitioner, after taking
instructions, stated that the Petitioner is now settled in Australia and does
not wish to appear before any Committee. The other judgments cited on
behalf of the Petitioner were cases where compensation was awarded
because the injury was established/accepted and therefore the said
judgments do not help the case of the Petitioner. Though the Petitioner
claims that her fundamental rights were violated and claims compensation
relying upon the judgment of the Supreme Court in the case of Vishaka,
she has given up prayer clause 28(b)(iv) of the Petition as discussed in
paragraph 4 hereinabove. The said prayer clause 28(b)(iv) reads as follows:
"(b)(iv) that the letter of termination of the Petitioner's
service dated 1st August 2000 is entirely malicious, bad in law,
void, non-est, being in violation of the Fundamental Rights of
the Petitioner and against the law laid down by the Hon'ble the
Supreme Court;"
(emphasis supplied)
16. In view of the aforesaid discussion, we do not find that this is a fit
case to grant compensation to the Petitioner for non-constitution of the
Complaints Committee by Respondent No.1. It is an admitted position that
at the relevant time there was no Complaints Committee constituted by the
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Respondent No.1 despite the law laid down by the Supreme Court in
Vishaka. To that extent it can be said that the Respondent No.1-Company
had not implemented the directions of the Supreme Court in Vishaka. We
are informed by the learned Senior Counsel for the Respondent No.1 that
the Complaints Committee was constituted later and is presently in place. It
is no doubt true and as rightly pointed out on behalf of the Respondent No.1
that there were several establishments even in the Government
Departments and other Institutions where the Complaints Committee were
yet to be constituted even in the year 2012. As a matter of fact, in Medha
Kotwal Lele (supra) and Seema Lapcha (supra) directions have been
issued by the Apex Court in the year 2012 to constitute Complaints
Committee in terms of Vishaka. Even assuming that there was no
Complaint of the Petitioner on record of the Respondent No.1 making
grievance of sexual harassment during the course of her employment and it
was only after she was terminated that she had made allegations of sexual
harassment as contended by the Respondents, we find that nothing
prevented the Respondent No.1 from inquiring into her grievance even after
her termination. However, there was no Complaints Committee in place to
inquire into Complaint of sexual harassment made by the Petitioner. In our
view, some preliminary inquiry also could have been undertaken by the
Complaints Committee to determine the veracity of the Complaint and
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whether the same was bonafide and genuine, had such Complaints
Committee been in place. It is noticed that the Respondent No.1 did
constitute an Inquiry Committee consisting of three persons, which shows
that they were conscious of the fact that the Complaint of the Petitioner was
required to be look into. However, curiously that Inquiry Committee has
admittedly not issued any notice to the Petitioner pertaining to her
Complaint and she was not examined and no opportunity of hearing was
given to her. That inquiry therefore was no inquiry in the eyes of law.
17. Though we are not inclined to direct payment of compensation to the
Petitioner by the Respondent No.1 as indicated earlier, we do note here that
the Respondent No.1 had not followed the guidelines laid down by the
Supreme Court in Vishaka as there was no Complaints Committee
constituted by the Respondent No.1 at the relevant time. Taking a cue from
section 26(1)(a) of the new enactment of 2013, we deem it appropriate to
direct the Respondent No.1-Company to pay a sum of Rs.50,000/- to the
War Widow's Association, New Delhi, within a period of six weeks from
today for its failure to constitute the Complaints Committee at the relevant
time in terms of the judgment of the Apex Court in Vishaka.
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18. The Petition is disposed of in the aforesaid terms. Rule to stand
disposed of accordingly. There shall be no order as to costs.
19. List the matter on 28 November 2017 for reporting compliance.
(M.S.KARNIK,J.) (A.A.SAYED,J.)
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