Delhi High Court
vs Akademi And Ors. on 25 October, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 25th October, 2021
+ W.P.(C) 1103/2020 & CM APPLN. 3668-69/2020, 7648-
50/2020, 9969-70/2020, 18690/2020, 23465/2020, 6416/2021,
13630/2021 & 17420/2021
MS. SNEHA CHOUDHAURY ..... Petitioner
versus
SAHITYA AKADEMI AND ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioners: Mr. Ritin Rai, Senior Advocate with Ms. Shreya Munoth,
Ms. Kritika Bhardwaj, Mr. Ashwin Pantula, Ms. Aditi Rao
and Ms. Suhavi Arya, Advocates.
For the Respondent: Ms. Geeta Luthra, Senior Advocate with Mr. Abhishek
Aggarwal, Ms. Damini Thaker and Ms. Kamkashi Gupta,
Advocates for Respondent No. 1
Mr. Anupam Srivastava, ASC, GNCTD with Mr. Dhairya
Gupta, Advocate for R-2 and 3/GNCTD.
+ W.P.(C) 2546/2021 & CM APPLN. 7500/2021
SAHITYA AKADEMI THROUGH ITS AUTHORISED
REPRESENTATIVE ..... Petitioner
versus
GNCTD AND ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioners: Ms. Geeta Luthra, Senior Advocate with Mr. Abhishek
Aggarwal, Ms. Damini Thaker and Ms. Kamkashi Gupta,
Advocates.
For the Respondent: Ms. Hetu Arora Sethi, ASC,GNCTD with Mr. Siddharth
Agarwal, Advocate for R-1 & 2.
W.P.(C) 1103/2020 & W.P.(C) 2546/2021 Page 1 of 35
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Mr. Ritin Rai, Senior Advocate with Ms. Shreya Munoth,
Ms. Kritika Bhardwaj, Mr. Ashwin Pantula, Ms. Aditi Rao
and Ms. Suhavi Arya, Advocates for R-3.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J.
1. In view of Section 16 of the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013
(hereinafter referred to as the Act), the name of the Petitioner in W.P.
(C) 1103 of 2020 shall be kept confidential and she would be referred
to as the "aggrieved woman" and similarly the name of the officer
against whom complaint has been made shall be kept confidential and
he would be referred to as the "Secretary".
2. Further, in order to conceal the identity of the aggrieved woman
and the Secretary, the names of the aggrieved woman and the
organisation shall be redacted from the copy of the judgment that is
uploaded on the website or made available to third parties. The
registry is also directed to redact the name of the aggrieved woman
and the organisation from the cause title.
3. The aggrieved woman who is the petitioner in W.P.(C) 1103 of
2020 had originally filed this petition inter alia seeking a direction to
the Sahitya Akademi (for the purposes of confidentiality hereinafter
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referred to as the "Akademi") to comply with the directions dated
16.12.2019 and 16.01.2020 issued by Local Complaints Committee
and to grant her three months paid leave with immediate effect, in
addition to the leave she would be otherwise entitled to. She has
further sought a direction to the Akademi to comply with Section 19 of
the Act and to pay compensation of Rs. 5 lakhs for mental trauma,
pain, suffering and emotional distress caused to her.
4. During the Pendency of the petition, because of certain
subsequent events, the aggrieved woman sought amendment of the
petition, which was allowed and consequently she has, in addition to
her earlier prayers sought quashing of the office memorandum dated
14.02.2020 issued by the Akademi terminating her services. She also
seeks information about the review committee and the appraisal done
with regard to her performance. She also seeks reinstatement to her
former position, with continuity of service, full back wages, and other
consequential service benefits.
5. The Akademi, by way of its Writ Petition No. W.P. (C) 2546 of
2021 seeks quashing of proceedings initiated by the aggrieved woman
before the Local Complaints Committee and also the order dated
16.01.2020 passed by it.
6. The questions that arise for determination in the subject writ
petitions are:
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(i) Whether the Secretary is an employer in terms of section
2(g) of the Act?; and
(ii) Whether the complaint of sexual harassment against the
Secretary could have been made only to the Local
Committee and not to the Internal Complaints Committee
in terms of Section 6(1) of the Act?; and
(iii) Whether the Internal Complaints Committee was validly
constituted in terms of Section 4 of the Act?; and
(iv) Whether the aggrieved woman made any complaint to the
Internal Complaints Committee in terms of Section 9 of
the Act?' and
(v) If the answer to question (iv) is in the negative, then
whether the report of the Internal Complaints Committee
dismissing the complaint is sustainable?
(vi) Whether the non confirmation/extension of probation of
the aggrieved woman during pendency of the
proceedings is sustainable?
(vii) Whether the Petition by the aggrieved woman is not
maintainable as she has not exhausted the alternative
remedy of an appeal against the finding of the Internal
Complaints Committee?
7. The aggrieved woman is from one of the north eastern states
and claims to have worked with several prestigious publishing houses.
8. On 26.12.2017, the aggrieved woman was appointed to the post
of Editor (English) on probation for a period of two years. As per the
letter of appointment during the period of probation her services could
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be terminated without notice or assigning any reason for the same.
The employment is governed by the Akademi (Services) Bye-
Laws/Central Civil Services Rules ('Bye-laws').
9. On 09.02.2018 the aggrieved woman was issued a Provisional
Appointment Order confirming her appointment to the post of Editor
(English).
10. As per the aggrieved woman from March 2014 onwards she
faced severe sexual harassment of many forms at the hands of the
Secretary, which allegedly included inappropriate sexual advances,
unwelcome physical and sexual contact, and sexually-coloured
remarks. It is alleged that he regularly made racist and sexist
comments on women hailing from the North-East, particularly from
the home state of the aggrieved woman.
11. The details of the instances of sexual harassment have been
spelt out by the aggrieved woman in her complaint to the local
complaints committee and also in her writ petition but the same are
not being reproduced herein because for the purposes of disposal of
the present writ petitions the same are not germane and this court is
refraining from commenting upon the merits of the same, lest it
prejudices the case of either the aggrieved woman or the Secretary.
12. It is alleged by the aggrieved woman that as a counterblast to
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her objections to his inappropriate sexual advances he verbally abused
and screamed at her in the presence of other officers for no fault of
hers and kept on accusing her of poor performance or not working
properly. It is alleged that he was being vindictive, owing to his
displeasure with her for not reciprocating his advances.
13. It is alleged that owing to Secretary's persistent sexual
misconduct and being pushed to a corner, the aggrieved woman
confronted him and told him that she found the manner in which he
behaved unacceptable. It is alleged that in response thereto he tried to
hold her hand, saying that she should have understood his 'hints' and
she should provide him 'bodily satisfaction' if she did not want her
probation period to get extended beyond February 2020.
14. It is alleged that besides sexual harassment, the aggrieved
woman was repeatedly subjected to baseless and frivolous office
memoranda which were sent to tarnish her employment record.
15. On 07.11.2019, the aggrieved woman submitted a complaint to
the Tilak Marg police station, detailing out the acts of sexual
harassment and assault perpetrated by the Secretary. Based on the
complaint, FIR No. 0109/2019 dated 07.11.2019 was registered.
16. The aggrieved woman on the same day sent an email to the
Executive Board of the Akademi requesting the Executive Board to set
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up an independent committee to enquire into her complaint of sexual
harassment and assault perpetrated by the Secretary. In the said email,
she stated that the Internal Complaints Committee lacked jurisdiction
to enquire into her complaint as her complaint was against the
Secretary who was the 'employer' within the meaning of Section 2(g)
of the Act.
17. It is alleged that on 09.11.2019, the President of the Executive
Board, in contravention of the Act, referred her complaint to the
Internal Complaints Committee and nominated two allegedly external
members to the said committee.
18. It is contended that the letter itself states that "the complaint is
against the Secretary, he [the President] has recommended two well-
know women personalities, who are from outside the Akademi to be
part of the Committee."
19. It is submitted that the President thus himself admitted that the
complaint being against the Secretary of the Akademi, the Internal
Complaints Committee was not competent to enquire into the
allegations of sexual harassment against him.
20. It is further alleged that the aggrieved woman on 09.11.2019
reiterated to the Executive Board her request for the constitution of a
completely independent external committee to enquire into her
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complaint
21. It is alleged that the board failed to take any action against the
Secretary and the very presence of the Secretary in the office
premises constituted a hostile work environment.
22. On 29.11.2019, the aggrieved woman filed a complaint with the
Local Committee. The aggrieved woman also prayed for grant of
urgent interim reliefs, including grant of paid leave for three months.
23. It is alleged that on 29.11.2019, the aggrieved woman also
received a notice dated 27.11.2019 from the Internal Committee
asking her to appear before it on 02.12.2019.
24. On 01.12.2019, the aggrieved woman protested and informed
the Internal Complaints Committee that it did not have the jurisdiction
to look into her complaint against the Secretary and only the Local
Committee was vested with the jurisdiction to initiate proceedings
based on her complaint, as the Secretary was the employer in terms of
Section 2(g) of the Act. The aggrieved woman also expressed her
apprehension regarding the independence and impartiality of the
members of the Internal Complaints Committee. She further informed
the Internal Complaints Committee that she had approached the Local
Committee and would not participate in the proceedings before the
Internal Complaints Committee as they were without jurisdiction.
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25. On 03.12.2019, it is alleged that in complete disregard to her
response to the First Notice to Appear, the aggrieved woman received
the Second Notice to Appear from the Chairperson of the Internal
Complaints Committee asking her to appear before the Internal
Complaints Committee on 05.12.2019.
26. On 04.12.2019, the aggrieved woman reiterated that the Internal
Complaints Committee did not have jurisdiction to initiate any
enquiry on the basis of her complaint against the Secretary and again
expressed her apprehensions regarding the independence and
impartiality of the Internal Complaints Committee and contended that
the two alleged external members were very close to the Secretary.
27. It is alleged that ignoring her protests, again on 06.12.2019 the
aggrieved woman received a Third Notice to Appear before the
Internal Complaints Committee.
28. It is alleged that on 05.12.2019, the aggrieved woman received
an e-mail from the Chairperson of the Internal Complaints Committee
notifying her that a third external member had been nominated to the
Committee on 25.11.2019.
29. On 09.09.2019, the aggrieved woman once again protested
against the continuation of proceedings by the Internal Complaints
Committee despite her repeated protests and asked the Internal
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Complaints Committee to discontinue the proceedings in relation to
her complaint with immediate effect. It is alleged that the President
during his visit to Delhi on 05.12.2019 exerted pressure on her to
withdraw her complaint against the Secretary.
30. On 09.09.2019, Petitioner also wrote to the Local Committee
reiterating her request for urgent and immediate interim relief,
alleging hostile work environment in the Akademi pursuant to her
complaint against the Secretary.
31. On 09.09.2019, Petitioner received another notice to appear
from the Internal Complaints Committee directing her to appear
before it on 26.12.2019 failing which it was stated that the Committee
shall have no option but to terminate the proceedings.
32. On 16.12.2019 the Local Committee took cognizance of the
complaint of the aggrieved woman dated 29.11.2019 against the
Secretary and directed him to submit his reply. The Local Committee
also granted the aggrieved woman relief of three months' paid leave
in terms of Section 12(1) of the Act.
33. On the issue of jurisdiction, the Local Committee, after
considering the constitution of the Akademi; duties of the Secretary as
mentioned in the Constitution as well as the service byelaws of the
Akademi, prima facie held that it appeared that the post of Secretary
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fell under the definition of 'employer' accordingly, it had jurisdiction
to enquire into the complaint of the aggrieved woman.
34. On 23.12.2019, the aggrieved woman once again objected to
the notice received from Internal Complaints Committee asking her to
appear before it on 26.12.2019 and informed the Internal Complaints
Committee that the Local Committee had taken cognizance of her
complaint and granted her interim relief and she requested the Internal
Complaints Committee to discontinue the proceedings before it.
35. The direction of the Local Committee granting the aggrieved
woman 3 months paid leave was not complied with and accordingly
she, through emails dated 23.12.2019, 26.12,2019 and 30.12.2019,
requested the President and the Executive Board to comply with the
directions of the Local Committee.
36. On 26.12.2019, the aggrieved woman received another notice to
appear before the Internal Complaints Committee on 30.12.2019 to
clarify her point of view. The aggrieved woman in response once
again protested to the jurisdiction of the Internal Complaints
Committee and informed them about the proceedings before the Local
Committee. The response is alleged to have been handed over
personally to the Internal Complaints Committee on 30.12.2019.
37. It is alleged that at the said meeting, members of the Internal
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Complaints Committee, particularly the purported external members,
sought to pressurize the aggrieved woman into withdrawing her
complaint before the police and the Local Committee and urged her to
reconcile with the Secretary.
38. It is alleged that on her refusal to accede to their demand, they
expressed their displeasure and stated that it would be best for her
career if she quit her job at the Akademi and found alternative
employment. It is alleged that the Internal Complaints Committee
thereafter incorrectly recorded that she was withdrawing her
complaint pending before the Internal Complaints Committee as the
Local Committee had already taken cognizance.
39. On 07.01.2020, the aggrieved woman submitted her rejoinder
before the Local Committee to the reply of the Secretary.
40. On 14.01.2020, the Internal Complaints Committee submitted
its inquiry report to the Akademi stating that "the committee is of the
opinion that reasons given by the complainant for withdrawing the
complaint are not satisfactory. Thus, the committee has no other
option but to dispose off the complaint, which stands terminated as
per her demand."
41. It is alleged that the aggrieved woman sent repeated reminders
to the Akademi requesting them to comply with the directions of the
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Local Committee but they failed to do so, accordingly the aggrieved
woman approached this court and filed Writ Petition (Civil) No.
1103/2020 inter alia seeking a direction to the Akademi to comply
with the directions of the Local Committee to grant her three months
paid leave. She further sought a restraint on the Akademi from taking
any adverse decision with regard to her employment status pending
the decision by the Local Committee on her complaint.
42. It is contended by the aggrieved woman that since the
beginning of her employment with the Akademi, she was constantly
intimidated by the Secretary that if she did not reciprocate his sexual
advances, her probation period would be extended or that she might
even lose her employment,
43. It is alleged that the Secretary had complete control over the
aggrieved woman working conditions and he totally misused this
control in order to deter her from complaining about his unwanted
sexual advances and when she refused to yield, he used his position as
her supervisor and the Secretary of the Akademi to send her Office
Memorandums on frivolous and baseless grounds in order to tarnish
her employment record.
44. By Office Memorandum dated 14.02.2020, it was held by the
Akademi that the performance of the aggrieved woman was not found
satisfactory so her services could not be confirmed and she should be
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discharged of her duties and it accordingly directed that she shall
cease to be an employee of the Akademi with effect from 14.02.2020.
45. Thereafter the Writ Petition was amended by the aggrieved
woman seeking to impugn the Office Memorandum dated 14.02.2020,
whereby her services were terminated.
46. It is alleged that the harassment and victimization culminated in
the impugned memorandum dated 14.02.2020. It is submitted that in
her tenure of two years she had worked with diligence, impeccable
integrity, and improved the output of not just her department, but also
of other departments.
47. It is alleged that under the Petitioner's aegis, the publications
brought out by the departments have increased manifold as compared
to the period prior to her employment with the Akademi. Besides
publications, she has organized several programmes. Owing to her
experience and expertise, she was entrusted with the work of several
departments. It is alleged that she was managing all of the assigned
tasks proficiently and her work was appreciated not just by various
departments within the Akademi, but also by writers and authors
associated with the organization.
48. It is alleged that the aggrieved woman was not informed of any
proceeding before the alleged Review Committee which allegedly
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reviewed her performance.
49. It is submitted that the impugned memorandum records that the
aggrieved woman was given ample opportunities for improvement but
she did not show any interest in implementing the decision or comply
with minimum essential directions of organizing programmes and
printing books/publications. It is alleged that none of the memoranda
issued by Akademi to the aggrieved woman were substantive in
nature, or indicated that her work was of poor quality.
50. It is submitted that the all the memoranda were issued in 2019
and not in 2018. It is submitted that since the aggrieved woman had
gained courage to start resisting the Secretary's advances that made
him angry and vindictive and the memoranda were issued. It is further
alleged that there is nothing on record to show that she was given any
opportunity to improve her work or that she did not comply with the
minimum essential directions of organizing programmes or printing of
books/publications. On the contrary, it is alleged that, the performance
of the departments under her aegis had improved.
51. It is alleged that the termination is punitive and a retaliation to
the complaint filed by her against the Secretary.
52. It is submitted that constitution of the Internal Complaints
Committee was not displayed as per the provisions of Section 19 the
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Act and further the committee was reconstituted after a complaint was
made to the President.
53. It is submitted that the Chairman of the Internal Complaints
Committee was holding the post of Programme Officer and all other
members were junior to her and the Controlling Authority of all the
members of the Internal Complaints Committee, as allegedly
originally constituted, was the Secretary and as such also the Internal
Complaints Committee was disqualified from entertaining any
complaint against the Secretary.
54. It is further submitted that the fact that two members of the
board were initially added to the Internal Complaints Committee and
thereafter the Internal Complaints Committee added an advocate,
fortifies the fact that the Internal Complaints Committee was not
competent to entertain any complaint against the Secretary
55. It is submitted that the Secretary is the Principal Executive
Officer of the Akademi and was incharge of the Delhi office. The
President is not even stationed in Delhi and comes to Delhi only for
some meetings. The overall control of the Delhi Office, where the
aggrieved woman was employed was with the Secretary.
56. On the other hand, the Akademi has approached this court and
filed Writ Petition (Civil) No. 2546 of 2021 seeking quashing of the
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proceedings initiated by the Local Committee and the order dated
16.01.2020 passed it holding that the Local Committee had the
jurisdiction to conduct an enquiry as prima facie the post of Secretary
falls under the definition of "employer" under section 2(g) of the Act,
and also impugns the direction to the President of the Akademi to
grant the aggrieved woman 3 months paid leave.
57. It is submitted by learned senior counsel for the Respondent
that the Internal Complaints Committees have been constituted in the
Akademi regularly since 2015. It is submitted that the Committees
have not been constituted by the Secretary or by his approval but the
same have been constituted by the President as per the
recommendation of the Secretary. All the circulars about the
constitution of the Committees have been prominently displayed on
the notice board in terms of Section 19 of the Act.
58. It is further contended by learned senior counsel for the
Akademi that the aggrieved woman was on probation and after a
review of her performance and keeping in view the various
memoranda issued to her about her performance and lapses and
advising her to improve her performance and her failure to do so, a
decision has been taken not to regularise her and to discontinue her
services.
59. It is submitted that her offer of appointment itself states that
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during probation her services may be terminated without any notice
and assigning any reason.
60. It is submitted that the Secretary is not an employer in terms of
section 2(g) of the Act as he is neither the appointing authority nor the
disciplinary authority of the aggrieved woman. It is submitted that the
aggrieved woman was holding the post equivalent to Deputy
Secretary and the President is the appointing authority and the
controlling authority and the controlling authority acts subject to the
general superintendence of the Executive Board.
61. It is submitted that the Writ Petition filed by the aggrieved
woman is not maintainable as she has an alternative remedy of an
appeal against the decision of the Internal Complaints Committee. It is
submitted that the aggrieved woman also has a remedy of appeal
against the impugned Office Memorandum terminating her services to
the Executive Board and as she has not filed an appeal, the prayer
seeking quashing of the said decision cannot be granted.
62. Learned Senior Counsel for the Akademi submits that the
Akademi has acted in all fairness. It is submitted that on receiving the
complaint against the Secretary, the President noticing that the
Internal Complaints Committee comprised of members junior to the
Secretary applied the doctrine of necessity and inducted two members
of the board as part of the Internal Complaints Committee. Reliance is
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placed by learned senior counsel on the decision of the Supreme Court
in Amar Nath Chowdhury Versus Braithwaite and Company Ltd.
(2002) 2 SCC 290.
63. It is contended that the Internal Complaints Committee in order
to conduct a fair enquiry, inducted an independent member who was
an advocate. It is submitted that the Internal Complaints Committee
sent several communications to the aggrieved woman to present her
case but she failed to even appear and present any material in support
of her complaint.
64. It is submitted that even if it is assumed that the decision to
terminate was taken by the President of the Executive Board, her
appeal would also lie to the Executive Board by applying the doctrine
of necessity. Reliance is placed on the decision of the Supreme Court
in State of Uttar Pradesh Versus Sheo Shankar Lal Srivastava (2006)
3 SCC 276.
65. Per Contra, learned senior counsel for the aggrieved woman
submits that the Counter Affidavit itself records that the decision to
terminate her services has been taken by the board as such she has no
remedy of appeal before the Executive Board. Further, it is contended
that the action to terminate her services without following the
procedure prescribed by the rules and particularly in view of the
complaint filed by her against the Secretary is clearly tainted with
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malafides. It is submitted that the malafides are writ large as the
Akademi instead of taking action against the Secretary is defending
his actions tooth and nail.
66. To answer the questions arising for consideration in these
petitions it would be expedient to refer to some of the relevant
provisions of the Act.
67. Section 2(g) of the Act defines the expression 'employer' as
under:
2. (g) "employer" means--
(i) in relation to any department, organisation,
undertaking, establishment, enterprise, institution,
office, branch or unit of the appropriate
Government or a local authority, the head of that
department, organisation, undertaking,
establishment, enterprise, institution, office,
branch or unit or such other officer as the
appropriate Government or the local authority, as
the case may be, may by an order specify in this
behalf;
(ii) in any workplace not covered under sub-clause (i),
any person responsible for the management,
supervision and control of the workplace.
Explanation. --For the purposes of this sub-clause
"management" includes the person or board or
committee responsible for formulation and
administration of polices for such organisation;
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(iii) in relation to workplace covered under sub-clauses
(i) and (ii), the person discharging contractual
obligations with respect to his or her employees;
(iv) in relation to a dwelling place or house, a person
or a household who employs or benefits from the
employment of domestic worker, irrespective of the
number, time period or type of such worker
employed, or the nature of the employment or
activities performed by the domestic worker;
68. The terms "employer" has been defined by Section 2(g) of the
Act by using the expression "means" which implies that the definition
is a hard and fast definition and no other meaning can be assigned to
the expression than is put down in the definition.
69. The term "employer" has been defined to mean, in relation to
any department, organisation, undertaking, establishment, enterprise,
institution, office, branch or unit of the appropriate Government or a
local authority, the head of that department, organisation, undertaking,
establishment, enterprise, institution, office, branch or unit or such
other officer as the appropriate Government or the local authority, as
the case may be, may by an order specify in this behalf and in any
workplace not covered hereinabove, any person responsible for the
management, supervision and control of the workplace.
70. " Workplace" has been defined by Section 2(o) of the Act to
P. Kasilingam v. P.S.G. College of Technology, 1995 Supp (2) SCC 348
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include any department, organisation, undertaking, establishment,
enterprise, institution, office, branch or unit which is established,
owned, controlled or wholly or substantially financed by funds
provided directly or indirectly by the appropriate Government or the
local authority or a Government company or a corporation or a co-
operative society; and any private sector organisation or a private
venture, undertaking, enterprise, institution, establishment, society,
trust, non-governmental organisation, unit or service provider carrying
on commercial, professional, vocational, educational, entertainmental,
industrial, health services or financial activities including production,
supply, sale, distribution or service; and hospitals or nursing homes;
and any sports institute, stadium, sports complex or competition or
games venue, whether residential or not used for training, sports or
other activities relating thereto; and any place visited by the employee
arising out of or during the course of employment including
transportation by the employer for undertaking such journey; and a
dwelling place or a house.
71. The expression used in the definition of " workplace" is
" includes" . The expression "includes" when used, enlarges the
meaning of the expression defined so as to comprehend not only such
things as they signify according to their natural import but also those
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things which the clause declares that they shall include. 2
72. When the definition of " employer" is read in conjunction with
the definition of " workplace" , it is clear that any person who heads
any department, organisation, undertaking, establishment, enterprise,
institution, office, branch or unit of the appropriate Government or a
local authority or any person responsible for the management,
supervision and control of the workplace is to be regarded as an
"employer" for the purposes of the Act.
73. The expression "employer" has not been defined to mean only
the appointing authority or the disciplinary authority as has been
contended on behalf of the Akademi.
74. Further, the Constitution of the Akademi lays down the powers
and duties of the Secretary as:
i. The Secretary shall be the principal executive
officer of the Akademi and he shall be appointed by the
Executive Board for such period and on such terms and
conditions as the Executive Board may determine.
ii. The Secretary shall be ex-officio Secretary of the
General Council, the Executive Board, the Finance
Committee and all other standing committees which may
be set up by the General Council or the Executive Board
but shall not be deemed to be member of any of the
authorities.
P. Kasilingam v. P.S.G. College of Technology, 1995 Supp (2) SCC 348
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iii. It shall be the duty of the Secretary:
(a) to be the custodian of the records and, subject to
the general supervision and control of the
Executive Board, to manage the property and
funds of the Akademi for the purpose for which
they are granted or allotted;
(b) to conduct the official correspondence on behalf of
the authorities of the Akademi;
(c) to issue all notices convening meetings of the
authorities of the Akademi and all committees
appointed by any of these authorities;
(d) to keep the minutes of all meetings of the
authorities of the Akademi and of all committees
appointed by any of these authorities;
(e) to maintain the accounts of the Akademi under the
supervision of the Financial Adviser; and
(f) to execute all contracts on behalf of the Akademi.
75. As per the constitution of the Akademi, the Secretary is the
Principal Executive Officer of the Akademi. Even though it is
contended on behalf of the Akademi that the President is the incharge
of all its offices, it is an admitted position that the President is not
based in Delhi and the day to day affairs of the Office where the
aggrieved woman is employed are managed and controlled by the
Secretary.
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76. Nothing has been placed on record by the Akademi to show that
the day to day affairs of the Akademi were managed by someone other
than the Secretary.
77. When the definition of "employer" is so wide, so as to include
any person who heads any department, organisation, undertaking,
establishment, enterprise, institution, office, branch or unit of the
appropriate Government or a local authority or any person responsible
for the management, supervision and control of the workplace, it
cannot be but held that the Secretary, who is the Principal Executive
Officer of the Akademi; incharge of the day to day affairs of the
Akademi; custodian of all records and manages the properties and
funds of the Akademi, would also be included in the definition of an
"employer".
78. In view of the above, the Secretary is held to be an "employer"
in terms of Section 2(g) of the Act.
79. Section 4 of the Act stipulates that every employer of a
workplace shall, by an order in writing, constitute a Committee to be
known as the "Internal Complaints Committee" and where the offices
or administrative units of the workplace are located at different places
or divisional or sub-divisional level, the Internal Committee shall be
constituted at all administrative units or offices.
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80. Section 6 (1) of the Act stipulates that " Every District Officer
shall constitute in the district concerned, a committee to be known as
the Local Committee to receive complaints of sexual harassment from
establishments where the Internal Committee has not been constituted
due to having less than ten workers or if the complaint is against the
employer himself."
81. In terms of Section 6(1) of the Act, where the Internal
Committee has not been constituted due to having less than 10
workers or if the complaint is against the employer himself, the
complaint would lie to the Local Committee constituted under Section
6 of the Act.
82. Since the Secretary of the Akademi is the employer for the
purposes of the Act, the complaint against the Secretary would not lie
to the Internal Committee but shall lie only to the Local Committee.
83. The Internal Complaints Committee does not have any
jurisdiction to entertain a complaint against the Secretary. Any order
passed by the Internal Committee or finding returned would be non
est being without jurisdiction.
84. The contention of learned Senior Counsel for the Akademi that
the Internal Committee has disposed of the complaint as terminated as
per her demand and if she is aggrieved she should avail of the remedy
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of an Appeal under Section 18 of the Act, does not hold any merit and
is liable to be rejected.
85. The inquiry report dated 14.01.2020 of the Internal Committee
also records that the aggrieved woman has repeatedly registered her
protest about the lack of jurisdiction of the Internal Committee to
entertain any complaint against the Secretary.
86. The aggrieved woman has repeatedly responded to the notices
issued by the Internal Committee by stating that it has no jurisdiction
and should cease all proceedings. The requests to cease all
proceedings, because of lack of jurisdiction, have been interpreted by
the Internal Committee as a request to withdraw the proceedings.
87. The Internal Committee on the one hand has held that the
reasons given by the aggrieved woman for withdrawing the complaint
are not satisfactory and on the hand has held that the Committee has
no other option but to dispose off the complaint which stands
terminated as per her demand.
88. Further, there is merit in the contention of the aggrieved woman
that she has never filed any complaint before the Internal Committee
and as such the Internal Committee could not have conducted any
inquiry or submitted a report and on that ground also the report and
the findings, opinion and recommendations are non est.
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89. Section 9 of the Act provides for a Complaint of Sexual
Harassment. In terms of Section 9(1) of the Act "any aggrieved
woman may make, in writing, a complaint of sexual harassment at
workplace to the Internal Committee if so constituted, or the Local
Committee, in case it is not so constituted, within a period of three
months from the date of incident and in case of a series of incidents,
within a period of three months from the date of last incident" .
90. In the present case on 07.11.2019, the aggrieved woman
submitted a complaint to the Tilak Marg police station and on the
same day sent an email to the Executive Board of the Akademi
requesting the Executive Board to set up an independent committee to
enquire into her complaint of sexual harassment and assault
perpetrated by the Secretary. In the said email, she alleged that the
Internal Complaints Committee lacked jurisdiction to enquire into her
complaint as her complaint was against the Secretary who was the
'employer' within the meaning of Section 2(g) of the Act.
91. No complaint was made by the aggrieved woman to the Internal
Committee. On 29.11.2019, the aggrieved woman filed a complaint
with the Local Committee.
92. It was the President of the Executive Board who, on
09.11.2019, referred her complaint to Internal Committee. Thereafter
every time the Internal Committee asked the aggrieved woman to
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appear, she protested that the Internal Committee had no jurisdiction.
93. At no point of time has the aggrieved woman submitted a
complaint in terms of Section 9 of the Act to the Internal Committee
or submitted to its jurisdiction.
94. Since no complaint was made by the aggrieved woman to the
Internal Committee in terms of Section 9 of the Act, the Internal
Committee could not have conducted any inquiry or submitted a
report. Further as the complaint of the aggrieved woman was against
the Secretary, who is an employer in terms of Section 2(g) of the Act,
the proceedings conducted by the Internal Committee were clearly
without jurisdiction and consequently the Inquiry report dated
14.01.2020 of the Internal Committee is non est.
95. Since the proceedings conducted by the Internal Committee
were without jurisdiction and the Inquiry report is non est there is no
merit in the contention of learned senior counsel for the Akademi that
the aggrieved woman should avail of her remedy of an appeal under
Section 18 of the Act.
96. Further, it is alleged on behalf of the Akademi that the
aggrieved woman was on probation and her services have been
terminated on the basis of the report submitted by the Review
Committee and on the satisfaction of the President.
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97. It is alleged that the Review Committee considered on record
the office memoranda and calling explanations etc. and she had been
given ample opportunities for improvement, betterment but she has
not shown any interest in implementing the decision.
98. The argument of learned senior counsel for the Akademi on the
first blush seems appealing but on deeper scrutiny it loses it sheen.
99. Further reliance on the judgment of the Supreme Court of India
in Amar Nath Chowdhury (supra) to contend that though the decision
of termination is with the approval of the Board, the appeal would still
lie to the Board is also misplaced.
100. First of all, no rule or provision has been pointed out on behalf
of the Akademi to justify the procedure of constituting a Review
Committee to review her performance; secondly, the office
memoranda and calling explanations relied upon were issued either
by the Secretary or by officers junior to the Secretary, who also report
to him; thirdly, if there is any merit in the allegations of the aggrieved
woman then the office memoranda and calling explanations were all
issued because she rebuffed his advances; fourthly, the timing of the
termination order is such that it prima facie smacks of malafides.
Specially, when a complaint of sexual harassment is pending against
the Chief Executive Officer of the Academi, the Executive Board
should have waited for the decision on the complaint of the aggrieved
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woman.
101. In view of the above, the Office Memorandum dated
14.02.2020 terminating the service of the aggrieved woman is not
sustainable.
102. Further, it may be noticed that Section 19 of the Act stipulates
the duties of the employer to inter alia provide a safe working
environment at the workplace with shall include safety from the
persons coming into contact at the workplace; display at any
conspicuous place in the workplace, the penal consequences of sexual
harassments; and the order constituting, the Internal Committee under
sub-section (1) of section 4; 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;
cause to initiate action, under the Indian Penal Code (45 of 1860) or
any other law for the time being in force, against the perpetrator, or if
the aggrieved woman so desires, where the perpetrator is not an
employee, in the workplace at which the incident of sexual
harassment took place; and treat sexual harassment as a misconduct
under the service rules and initiate action for such misconduct.
103. In the present case instead of providing assistance to the
aggrieved woman in prosecuting her complaint of sexual harassment,
the Akademi has been opposing her tooth and nail and has even
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terminated her services pending the inquiry before the Local
Committee.
104. The judgment in Sheo Shankar Lal Srivastava (supra), relied
upon by learned senior counsel for the Academi for applying the
doctrine of necessity, is not applicable to the facts of the present case
as in the said case the issue was as to whether the Lok Ayukta was the
disciplinary authority and the power to impose punishment vested
only in him and the allegation was that the officer had misbehaved
before him. The Lok Ayukta appointed someone else as an Inquiry
Officer but an objection was taken by the Officer himself that no
person from outside should be appointed and accordingly the Lok
Ayukta had no option but to take upon himself the burden of holding
the departmental proceedings. The Supreme Court of India held that
the Officer could not be permitted to take the objection that the
disciplinary proceedings should have been conducted by some other
officer, especially when it was not contended that there was any other
officer in the office of the Lok Ayukta available for conducting such
an enquiry. It was in those circumstances that the Supreme Court
applied the doctrine of necessity and held that the Lok Ayukta had no
option but to proceed with the inquiry despite the fact that he himself
was a witness and the disciplinary authority.
105. Clearly, such a situation has not arisen in the facts and
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circumstances of the present case and the doctrine of necessity is not
applicable.
106. The plea of applicability of the doctrine of necessity is
misplaced. Since it has been held that the Secretary is the 'employer'
and the Internal Complaints Committee was not competent to
entertain a complaint against the Secretary, so there was no question
of applying the doctrine of necessity and inducting members of the
board of external members. Only the Local Committee is competent
to entertain the complaint against the 'employer'.
107. The questions arising for consideration in these petitions are
answered accordingly.
108. In view of the above the Petitions are disposed of in the
following terms:
(i) The Secretary is held to be an employer in terms of section 2(g)
of the Act.
(ii) The complaint of sexual harassment against the Secretary
would lie only to the Local Committee and the Internal
Complaints Committee would not have any jurisdiction to
entertain any complaint against the Secretary.
(iii) The Inquiry report dated 14.01.2020 of the internal Complains
Committee and its opinion and recommendations are held to be
without jurisdiction and non est.
(iv) The Office Memorandum dated 14.02.2020 terminating the
services of the aggrieved woman is quashed.
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(v) The aggrieved woman would be deemed to continue in service
but as a probationer in terms of her appointment letter till the
conclusion of the inquiry by the Local Committee. She is
reinstated to her former position, with continuity of service, full
back wages, and other consequential service benefits.
(vi) The Akademi shall forthwith pay her salary for the current
month and clear the arrears of her salary within four weeks.
(vii) The aggrieved woman shall be deemed to be on paid leave till
the Local Committee passes appropriate interim orders with
regard to provision of a safe working environment to her.
(viii) The competent authority of the Akademi would be at liberty to
review her performance and take a decision on her employment
status after submission and implementation of the report by the
Local Committee.
(ix) Since it has been held that the Secretary is the employer in
terms of section 2(g) of the Act and that a complaint against
him would not lie to the Internal Committee, the question as to
whether the Internal Committee was validly constituted and
details thereof displayed in terms of section 19 of the Act, is left
open.
(x) The claim of the aggrieved woman for compensation for
alleged mental trauma, pain, suffering and emotional distress
caused to her is left open for determination by the Local
Committee in terms of Section 15 of the Act.
109. Consequently, W.P.(C) 1103/2020 filed by the aggrieved
woman is allowed in the above terms and W.P. (C) 2546/2021 filed by
the Akademi is dismissed.
110. It is clarified that nothing stated herein shall amount to an
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expression of opinion on the merits of the allegations made by the
aggrieved woman or the defence of the Secretary thereto.
111. Copy of this Order be uploaded on the High Court website
forthwith and be forwarded to learned counsel for the parties by the
Court Master.
SANJEEV SACHDEVA, J
October 25, 2021
HJ
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