2008(6)BomCR1, 2008(110)BOMLR3625, [2009(120)FLR973], (2009)ILLJ767Bom
Writ Petition No. 8826 of 2004
Decided On: 06.10.2008
Arati Durgaram Gavandi
Managing Director, Tata Metaliks Limited and Ors.
Ranjana Prakash Desai and Dr. D.Y. Chandrachud, JJ.
For Appellant/Petitioner/Plaintiff: Shakuntala A. Mudbidri, Adv.
For Respondents/Defendant: Mihir Desai, Adv. for Respondent No. 4 andP.S. Cardoza, AGP for Respondent No. 5
D.Y. Chandrachud, J.
1. The Petitioner was employed in a Company by the name of Usha Ispat Limited, initially as a commercial trainee in 1992. Upon being confirmed in service as a Junior Assistant, she was promoted from time to time and held the post of a Senior Supervisor. In 1993, the Company set up an Integrated Steel Plant at Satarda at a distance of about 24 kms. from the plant at Redi. The Petitioner was sent as a Supervisor and was subsequently promoted as a Senior Supervisor. The project at Satarda was not completed. Some of the employees were retrenched, while others were absorbed in the plant at Redi. A skeletal staff remained at the Satarda Plant, one of them being the Petitioner.
2. The grievance of the Petitioner is that she was subjected to sexual harassment by an officer, namely, the Third Respondent, who initially joined the Company as Deputy Manager (Personnel) and was promoted as Senior Manager and thereafter, as Deputy General Manager. The Petitioner has averred that upon the appointment of the Third Respondent as Deputy Manager (Personnel), the Petitioner was required to work in his Department. The Petitioner alleges that the officer started making lewd remarks and vulgar gestures towards her. The officer, it has been stated, was residing at the Guest House of the Company at Redi. The Petitioner has stated that she remonstrated but, being the only earning member in her family, she did not lodge a complaint fearing that she would lose her job. It has been alleged that in August 1997, while the Petitioner was alone in the office, the same officer called her in his cabin and attempted physical contact with her. The Petitioner alleges that in November 1997 she was transferred to Satarda and she was called by the officer to his cabin and she was informed that she was being transferred ‘for not cooperating’ with him. In September 2001, according to the Petitioner, the Plant at Satarda was closed and all the women employees, save and except the Petitioner, were transferred out. On 16th October 2003, the Petitioner submitted a written representation for transfer. According to the Petitioner, after the Plant was being closed down, even basic amenities are not available and there is no staff save and except for the security guards. Since May 2000, the Petitioner is allegedly the only woman employee posted at the Plant in the midst of 22 male security guards.
3. The Petitioner has alleged that the harassment which she has received at the hands of the Third Respondent did not cease and she received telephone calls at her residence at odd hours when the Third Respondent spoke to her in filthy and vulgar terms. It has been alleged that in December 2003, the then Senior Accounts Officer had conveyed to the Petitioner telephonically that the Third Respondent desired that she should either stay at Satarda or attend duties at the Guest House at Usha Nagar or submit her resignation. The Petitioner submitted a representation on 24th February 2004 to the District Collector, Sindhudurg and a representation dated 24th May 2004 to the Maharashtra Women’s Commission. An FIR was lodged with the Vengurla Police Station on 27th July 2004. On 31st August 2004, a representation was lodged with the management. It has been alleged that on the night of 27th August 2004, the Third Respondent visited the house of the Petitioner and when the Petitioner answered the door, the Third Respondent, taking advantage of darkness pulled the Petitioner close to him and abused her for having lodged a complaint 8th with the Police. On October 2004, the Maharashtra State Commission for Women addressed a letter to the management directing that a Complaints Committee would have to be constituted for implementation of the directions issued by the Supreme Court in Vishaka v. State of Rajasthan SC/0786/1997 : AIR1997SC3011 and that the complaint of the Petitioner would have to be investigated by the Committee. In the meantime, it has been stated that the Petitioner should be transferred back to the Redi Plant.
4. The petition was instituted on 19th October 2004. The Petitioner has averred that she apprehended that her services would be terminated. The substantive relief that has been sought in the petition is for a direction to the First and Second Respondents to enquire into her complaint in accordance with the guidelines laid down by the Supreme Court in Vishaka. The Petitioner also seeks relief to the effect that her case be considered for promotion from July 2003 and that she should not be removed from service.
5. The Petition was amended in pursuance of an order passed on 17th February 2006 in Civil Application 426 of 2006 to implead the new employer who had taken over the business of the erstwhile employer. An affidavit in reply was filed in these proceedings by Shri S.C. Gupta, Director of Usha Ispat Ltd. controverting the allegations made in the petition. It has been stated in the affidavit that in 1993 when the Company set up a Steel Plant at Satarda, about 150 to 200 employees were recruited, including women employees and the Petitioner was a Supervisor at the Plant. Satarda is at a distance of 24 kms. from the Redi plant. It has been averred that the Company had arranged for transport for its employees from the Redi plant to Satarda. The project at Satarda could not be completed due to financial considerations. Some of the employees were retrenched while others were absorbed at the Redi plant. The Petitioner was kept back at the plant at Satarda in order to look after the administrative work. In October 2003, the Petitioner is stated to have addressed a letter for transfer to the Redi plant. According to the reply filed by the management, this request was accepted and a letter was issued to the Petitioner in December 2003 transferring her back to the Redi plant. According to the management, the Petitioner declined to accept the letter. It has been submitted in the reply that the complaint of sexual harassment was not made until 31st August 2004 and even in her letters addressed on 24th February 2004 to the District Collector and on 24th May 2004 to the Maharashtra State Women’s Commission no such complaint was made. The reply states that on receipt of the complaint made by the Petitioner on 31st August 2004, an Advocate was appointed as an Enquiry Officer. The Enquiry Officer submitted a report exonerating the Third Respondent of the allegation of sexual harassment. The services of the Petitioner were terminated on 12th October 2004 soon after the report of the Enquiry Officer dated 7th October 2004.
6. On behalf of the Petitioner it has been submitted that upon receipt of the complaint of sexual harassment, the management was duty bound to act in compliance with the judgment of the Supreme Court in Vishaka v. State of Rajasthan (supra). Learned Counsel submitted that the termination of the services of the Petitioner was challenged by her in a complaint unfair labour practices under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. By a judgment dated 9th February 2007, the Labour Court at Ratnagiri issued a declaration that the employer was guilty of unfair labour practices and, granted reinstatement with consequential benefits. The grievance of the Petitioner is that the order of reinstatement has still not been complied with and the employer has not abided by the order of the Labour Court which continues to hold the field.
7. In Vishaka (supra), the Supreme Court held that gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognized basic human right.2 The Supreme Court noted that there was a global acceptance by International Conventions of the common minimum requirements of this right. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) requires all States who are parties thereto to take appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular, (a) The right to work as an inalienable right of all human 2 Paragraph 10. beings; and (b) The right to protection of health and safety in working conditions. The Convention takes note of the fact that equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment in the work place. The Convention was ratified by the Government of India on 25th June 1993. The Supreme Court held that the constitutional guarantee of gender equality in Article 15 must be construed in the context of the obligation assumed by India as a party to the Convention. The Supreme Court held that in the absence of legislation enacted to enforce the basic human right to gender equality and the guarantee against sexual harassment, more particularly against sexual harassment at the work place, the Court was laying down guidelines and norms for due observance at all work places or other institutions. These norms and guidelines shall continue to hold the field until legislation is enacted. The Supreme Court directed that these guidelines and norms be treated as law declared by the Court under Article 141 of the Constitution of India.
8. The guidelines formulated in the judgment of the Supreme Court in Vishaka begin with the following prefatory statement :
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.
Clause 1 of the guidelines imposes a duty upon the employer and other responsible persons in work places to prevent or deter the commission of acts of sexual harassment and to provide procedures for resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. Clause 2 of the guidelines defines the expression sexual harassment. Clause 3 requires all employers or persons incharge of work places whether in the public or private sectors to take appropriate steps to prevent sexual harassment. This includes, under Clause 4, criminal proceedings and under Clause 5, disciplinary action. Clause 6 of the guidelines provided for a complaint mechanism and Clause 7 elaborates upon the constitution of a Complaints Committee :
–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.
–7. Complaints Committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor 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 member should be women. Further, to prevent the possibility of any undue 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.
9. The judgment in Vishaka contains a specific direction that the guidelines and norms set out therein would be strictly observed at all work places for the preservation and enforcement of a right to gender equality of all working women. The Supreme Court has held that its directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.
10. The right to gender equality is intrinsic to the right to life under Article 21 of the Constitution. The right to life comprehends the right to live with dignity. An affront to or the invasion of gender is destructive of the right of every woman to live with dignity. Article 15 of the Constitution which contains a prohibition inter alia against discrimination by the State on the ground of sex is an emanation of that right. The provisions of the Constitution recognize gender equality as a fundamental right. Gender equality in all its dimensions is a basic human right which is recognized by and embodied in the provisions of the Constitution. The broad sweep of the human right to gender equality traverses every facet of the position of a woman in society. The right comprehends the preservation of the dignity of women. At a basic level, gender equality postulates protection of women against all those practices which invade upon the dignity of being and the privacy of the person. A dignified existence includes the right to earn one’s livelihood in conditions that are fair and gender neutral. A condition which operates to disadvantage a woman worker on the ground of gender is fundamentally anachronistic to the vision of our constitutional order. Gender as a concept has wider dimensions than sex. Gender equality postulates the realization of societal values that travel beyond a mere notion of sexual equality. Gender in that sense denotes the realization of every facet of personality that contributes to the fullness of life to which a woman is entitled.
11. Every employer in the territory of India is bound to abide by the judgment of the Supreme Court which is law under Article 141 of the Constitution. In the present case, the affidavit in reply which has been filed on behalf of the management shows that an Advocate was appointed as an Enquiry Officer to probe into the allegations which the Petitioner had made of the violation of her human right to gender equality. Appointing an Advocate as an Enquiry Officer does not constitute valid or adequate compliance with the judgment of the Supreme Court. The mandate of the law laid down by the Supreme Court is that an employer at the work place must constitute a complaints mechanism to deal with complaints of victims. The Supreme Court directed that the complaint mechanism should be adequate to provide a Complaint Committee, a special counselor or other support service including the maintenance of confidentiality. The Complaint Committee is required to be headed by a woman and not less than half of its members are required to be women. The Complaints Committee has to involve a third party either an NGO or any other body which is conversant with the issues which arise in matters of sexual harassment. The management in the present case is in breach of its obligation. The complaint of the Petitioner ought to have been referred to a Complaints Committee as directed in Vishaka. If a Complaints Committee has not been constituted, it ought to have been constituted in accordance with the directions of the Supreme Court. It was no part of the function of the management to determine whether the complaint was genuine or otherwise and the efforts made in the affidavit to demonstrate that the complaint was made for the first time on 31st August 2004 is an encroachment on the jurisdiction which is vested in the complaints mechanism by the judgment of the Supreme Court. In these circumstances, rule will have to be made absolute and is made absolute in terms of prayer Clause (b) by directing the Respondent management to enquire into the complaint lodged by the Petitioner of sexual harassment in accordance with the guidelines and norms laid down by the Supreme Court in Vishaka v. State of Rajasthan (supra). There shall be an order in these terms. The Petitioner has also sought relief to the effect that her case for promotion should be considered from July 2003 and that she should not be removed from service. In so far as the question of removal was concerned, it has transpired, as noted earlier, that the services of the Petitioner were terminated on 12th October 2004. The Petitioner has been directed to be reinstated by the Labour Court on 9th February 2007. In the event that the order has not been complied with, the Petitioner is at liberty to espouse such remedies as are open in law. Similarly, in so far as the question of promotion is concerned, the Petitioner is at liberty to pursue the remedies available in Industrial Law. The Petition shall stand allowed to the aforesaid extent.