IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25754 of 2008(N)
- K. PUTHUPPAN, PRESIDENT,
- K.S. GIRIJA, … Respondent
- THE JOINT REGISTRAR OF CO-OPERATIVE
- THE REGISTRAR OF CO-OPERATIVE
- THE KERALA WOMENS COMMISSION,
For Petitioner :SRI.P.V.BABY
For Respondent : No Appearance
The Hon’ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
O R D E R
Thottathil B. Radhakrishnan, J.
W.P.(C)No.25754 of 2008
Dated this the 27th day of August, 2008.
- Petitioner is the President of a Co-operative Society. The first respondent, an employee of that Society filed a complaint before the fourth respondent Kerala Women’s Commission, hereinafter P.K. referred to as the “Commission”, constituted under the provisions of the Kerala Women’s Commission Act, 1990 (Act 17 of 1995), which provides for the constitution of a Commission for the purposes of that statute and with such powers, duties and responsibilities as are enjoined therein. The Commission, through its member, heard the first respondent and the petitioner regarding the complaint and drew up a report to the effect that after her initial appointment, the first respondent was promoted as an Accountant. However, the Commission opined that, in appointing the WPC25754/08 Secretary, the claim of the first respondent was overlooked and that there was intention to harass the first respondent. This was on the basis of the allegation of the first respondent that the petitioner had made unwelcome sexual advances, which the first respondent resisted. The Commission also stated that the proper thing is to expeditiously constitute independent Grievances Redressal Cell according to Supreme Court guidelines. That report is under challenge.
- The report, Ext.P6, is one drawn up by the Commission in the course of its proceedings under the statute. That has been forwarded to the Registrar of Co-operative Societies, the third respondent. Entitlement to a promotion would depend upon the approved feeder category rules, if any; the relevant statutory provisions in the Kerala Co-operative Societies Act, 1969, hereinafter referred to as the “Act” and the Kerala WPC25754/08 Co-operative Societies Rules, 1969, hereinafter referred to as the “Rules”. An unqualified person cannot claim a promotion. In the case in hand, the matter having already reached the third respondent Registrar, it is appropriate that the third respondent looks into the grievance of the first respondent as to whether she has been denied the due opportunity of promotion. This shall be done by the force of this judgment, notwithstanding anything contained in Section 69 of the Act, having regard to the very peculiar facts and circumstances and because Ext.P6 report has already been forwarded by the Commission to the third respondent. The findings in the report Ext.P6, having regard to the nature of the provisions of the Kerala Women’s Commission Act, would take its course only in accordance thereof and shall not be used for any purpose for which it is not relevant.
- However, the Commission has rightly WPC25754/08 directed the constitution of an independent Grievances Redressal Cell according to Supreme Court guidelines. The reference made by the Commission is obviously to the decision of the Apex Court in Vishaka v. State of Rajasthan (AIR 1997 SC 3011) wherein the Apex Court noticed that incidents of sexual harassment in work places result in violation of fundamental right “Gender Equality” and the “Right to Life and Liberty”. It is a clear violation of right under Articles 14, 15 and 16 of the Constitution. It is also the logical consequences of such incidents, that the fundamental right under Article 19(i)(g) “to practice any profession or to carry out any occupation, trade or business” is always violated. The Apex Court searched the existing law only to find that there was total absence of legislative measures to safeguard women against sexual harassment at work places. It was found that it WPC25754/08 was absolutely essential to find an effective alternate mechanism to fulfil the felt and urgent social need to provide suitable methods for the true concept of gender equality and to prevent sexual harassment of working women in all work places. It was found necessary that in the absence of legislative measures, it was absolutely necessary to have such guidelines in place, issued through judicial process, to fill the vacuum in existing legislation. Accordingly, guidelines were issued by the Apex Court clearly laying down that those directions are enforceable in law until suitable legislation is enacted to occupy the field and that the guidelines and norms issued thereby have to be observed in all work places for the preservation and enforcement of the right to gender equality of working women. That judgment was delivered by the Apex Court on 13-8-1997. More than 11 years have gone through. There is no legislation either by the Union or the State of WPC25754/08 Kerala. This should be a matter of national pain when we, the Indians, speak vociferously about gender equality, woman empowerment and reservation for women in all sectors.
- Work place for the purpose of the guidelines in Vishaka’s case (supra) is not confined to Government establishments, public sector organizations or industrial establishments. It extends to all work places, including private. The quality of womanhood does not change by the place where she works, be it public or private.
- The rights sought to be protected by the issuance of guidelines in Vishaka’s case (supra) have been essentially enunciated as referable to human rights to be protected and human rights as defined in Section 2(d) of the Protection of Human Rights Act, 1993. Those guidelines were issued WPC25754/08 taking note of the fact that the existing civil and penal laws do not adequately provide for specific protection for women in work places and that it is necessary and expedient for employers in work places as well as other responsible persons or institutions to pre-observe certain guidelines to ensure the prevention of sexual harassment of women. Under the aforesaid circumstances, the guidelines enumerated in Vishaka’s case (supra) including the requirement to have a Complaint Mechanism, Disciplinary Action, Criminal Proceedings, Preventive Steps, Compliants Committee Workers Initiative, Awareness and provisions against Third Party Harassment etc. apply in their full force to all work places, be it co-operative societies or private establishments and for applying those guidelines, sexual harassment is defined among those guidelines themselves. WPC25754/08 For the aforesaid reasons, the guidelines in Vishaka’s case (supra) are to be followed and the directions therein apply to all Co-operative Societies in the State of Kerala and all private establishments. It is so declared. The guidelines and directions in Vishaka’s case (supra) are to be complied with by the petitioner, a Co-operative Society. The petitioner shall carry out the obligations under this judgment and form the Compliants Committee and Compliants Mechanism within an outer limit of one month from now. Any guideline by the Government in the form of Government Orders or by the Registrar in the form of circulars touching the above subject shall also be duly applied to the extent they are not contrary to the directions in Vishaka’s case (supra). It is also directed that any woman member available as the member of the committee of petitioner Co- operative Society shall also be a member of any WPC25754/08 such committee. It is further directed that the Registrar of Co-operative Societies shall issue appropriate circular containing general directions in terms of what is stated above and incorporating the guidelines and norms prescribed by the Honourable Supreme Court of India in Vishaka’s case (supra), which are appended to this judgment for guidance.
Thottathil B.Radhakrishnan, Judge.