IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:05.04.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.6755 and 6756 of 2007 (O.A.Nos.72 of 2000 and 4969 of 2002) SMT. V. BARANI [ PETITIONER IN BOTH WPs ] Vs 1 COMMISSIONER OF LABOUR TEYNAMPET CHENNAI 600 006 2 THE INSPECTOR OF LABOUR NO. 60 SUBRAYALU NAGAR CUDDALORE DISTRICT [RESPONDENTS IN WP 6755/07] 1 THE STATE REP. BY ITS SECRETARY DEPARTMENT OF LABOUR FORT ST.GEORGE CHENNAI 600009 2 THE COMMISSIONER OF LABOUR TEYNAMPET DEARTMENT OF LABOUR CHENNAI 600 006 3 THE DEPUTY COMMISSIONER OF LABOUR TEYNAMPET DEPARTMENT O LABOUR CHENNAI 600006 4 THE INSPECTOR OF LABOUR 60 SUBBARAYALU NAGAR DEPARTMENT OF LABOUR CUDDALORE DISTRICT. [RESPONDENT IN W.P.6756/07] Prayer : Petition No.6755/07 under Article 226 of the Constitution of India praying for a Writ of certiorari to call for all the relevant records in proceedings No. Na.Ka. A/3034/99 dt 19.7.1999 passed by the Inspector of Labour Cuddalore the second respondent herein withholding increment of the petitioner for nine months with cumulative effect and quash the same as arbitrary unreasonable ultra vires irregular and illegal and against principles of natural justice Petition No.6756/07 under Article 226 of the Constitution of India praying for a Writ of certiorari to call for all the relevant records in proceedings No.A1/10296/99 dated 30.04.2002 passed by the Deputy commissioner of Labour I chennai -6 the 3rd respondent giving warning to the petitioner and quash the same as arbitrary, https://hcservices.ecourts.gov.in/hcservices/ unreasonable, ultra vires, irregular, illegal and against the principles of natural justice. For Petitioner :: Mr.Jeyapal Rajan For Respondents :: Mr.R.Murali, GA ************ O R D E R These two writ petitions came to be posted before this Court on being specially ordered by the Hon'ble Chief Justice vide order dated 31.03.2010. 2. Both the writ petitions were filed by one and the same person. The first writ petition W.P.No.6755 of 2007 arise out of O.A.Nos.72 of 2000. In that writ petition, the petitioner who was working as a typist in the office of the Inspector of Labour, First Circle, Nandanam, challenged the order dated 18.07.1999, wherein and by which she was imposed with a penalty of stoppage of increment for a period of nine months with cumulative effect. The petitioner filed an appeal against the said order to the Deputy Commissioner of Labour, Chennai dated 30.09.1999. When there was no reply forthcoming, she also sent a further representation dated 23.12.1999. Thereafter she moved the Tribunal. Pending the Original application, the Tribunal granted an interim stay of the penalty by order dated 07.01.2000. The said interim order came to be extended until further orders. 3. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.6755 of 2007. 4. Though more than 10 years have elapsed, the contesting respondent had not filed any reply affidavit. The first respondent had curiously filed a reply affidavit dated 05.06.2000 stating that since no relief is claimed against him, the writ petition against him may be dismissed. 5. But, in the present case, though the petitioner had filed an appropriate appeal to the first respondent and when the first respondent did not dispose of the said appeal, the petitioner came to file the original application. This Court do not find any ground to have the petitioner waive her appeal remedy. It is in fitness of things a direction will be issued to the 1st respondent to dispose of her appeal dated 23.12.1999 (a copy of which is made available in page Nos.39 to 43 of the typed set of papers along with the original application), in accordance with the rules, within a period of eight weeks from the date of receipt of a copy of this order. It shall be duly communicated to the petitioner without fail. https://hcservices.ecourts.gov.in/hcservices/ 6. When the earlier original application still pending, the petitioner also chose to file O.A.No.4969 of 2002 before the Tamil Nadu Administrative Tribunal challenging the order dated 30.04.2002, wherein and by which she was issued a severe warning by way of punishment. During the aforesaid period, the petitioner was working as a typist in the office of the Inspector of Labour, Cuddalore. She was given a show cause notice by the Deputy Commissioner of labour, Chennai 6, the 3rd respondent, dated 17.09.1999 stating that she had assaulted one another typist by name Kolanchi and a complaint in that regard was received from the other staff in the said office. It was claimed that the said action of the petitioner was contrary to the Tamil Nadu Government Servants Conduct Rules. She was asked to show cause why disciplinary action should not be taken. 7. It is pursuant to the said show cause notice the petitioner sent a detailed representation dated 27.10.1999. In that representation she had stated that she was facing sexual harassment at the hands of the Inspector of Labour and she had also made a complaint to the Commissioner of Labour with reference to his sexual advancement. She also made a complaint to the Tamil Nadu Government Employees Association on 26.02.1999. When that complaint was pending, one Mr.Kolanchi working as typist who used to make sexual comments about female employees working in the office, on 26.02.1999 he caught hold of the petitioner's hand and assaulted her. She also made a complaint to the police on that day and also a letter to the Inspector of Labour, Cuddalore in writing. Because of the complaint made by her, an enquiry was held before All Women Police Station on 23.03.1999. However, the department transferred out of the Cuddalore Office on 16.04.2009 and relieved her from the post on 23.04.1999. 8. It is the claim of the petitioner that injustice meted out to her and not to Mr.Kolanchi. She also wrote about the conduct of Kolanchi in the following lines and also requested them to take action:- "...He used to come to my Cabin, and tried to molest me and abuse me. My resistance to such like, things has resulted to assaulted by him on my cheek. It is therefore may kind request to you, that taking into consideration all that I have stated above, a thorough enquiry may be held into this to find out the real truth". 9. The petitioner also drew the attention of the respondents about the ruling of the Supreme Court in Vishaka v. State of Rajasthan, reported in (1997) 6 SCC 241 also about the need to protect the women employees from the sexual harassment meted out to them in work place. Notwithstanding her explanation, the respondents did not chose to conduct any enquiry as mandated by the Judgment of the Supreme Court in Vishaka's case cited supra. On the contrary, they framed a charge memo under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules stating that she had assaulted another co-employee on 26.03.1999. https://hcservices.ecourts.gov.in/hcservices/ 10. In response to the said charge memo, the petitioner sent a further reply stating that the charge memo itself was very vexatious as it was received after two years after the alleged incident dated 26.03.1999. Subsequently, the petitioner sent another representation dated 15.03.2001 and in that representation she had stated that such explicit sexual harassment had taken place in the presence of the Inspector of Labour, Cuddalore, Mr.A.M.Khan. In her reply she had made the following complaint:- "Since remarks like "ghthil", "fPH;ghthil", "fpnul; ghthil" and other unpleasant sexy unprintable remarks used to heard in the office loudly, the office superintendent Mr.P.Thangasamy objected to this especially when a woman employeelike me was present. This was objected to by Mr.A.Kolanchi and come near me and shouted that he used to make this remarks in my presence quite often and I objected to this and requested that I need not be involved in this. Instead of listening to this humble request of mine Mr.A.Kolanchi started alteration with me and went to the extent of keeping his hands on my chest. I had to defend myself and pushed him away. Mr.Kolanchi was not to dissuaded by all these things and caught hold of my hands. But these things had been witnessed by the office superintendent Mr.P.Thangawamy and other staff with Mr.N.M.Selvam, Jr.Asst. Mr.P.Singaravelu, Jr.Asst. O/o the Inspector of Labour Cuddalore, Mr.S,.Pavadasamy, Office Assistant, O/o The Deputy Inspector of Labour Cuddalore, Mr.S.Sattanathan, Deputy Inspector of Labour, Cuddalore and a few others were also present". 11. Notwithstanding her reply, the respondents did not order any enquiry as mandated by the Supreme Court. On the other hand by the impugned order dated 30.04.2002, they have stated from a perusal of the office file showed that it is the petitioner who had assaulted Kolanchi. Because she is a woman employee and transferred out of Cuddalore Office, she had been severely warned. As against the said order, the petitioner sent a further representation to the Joint Commissioner of Labour dated 25.07.2002 and finally to the Commissioner of Labour dated 25.07.2002. When it was not bringing any response, she filed the original application before the Tribunal in O.A.No.4969 of 2002. The Tribunal, admitted the original application and ordered notice to the respondents. 12. On notice from the Tribunal, the 3rd respondent has filed a reply affidavit dated 31.12.2002 with certain supporting documents. The stand of the 3rd respondent was that when the said Kolanchi called out in the office as "Great Pavadai", he did not refer to the petitioner. On the other hand, he referred to another employee by name Pavadaisamy. The petitioner did not make any complaint to the https://hcservices.ecourts.gov.in/hcservices/ higher-ups, but rushed to the police and she gave a false complaint against the said Kolanchi. 13. In paragraph 10 of the reply, it was stated that a discreet enquiry was held on 24.03.1999 in the presence of the office staff including the petitioner and he submitting a finding to the Joint Commissioner on 26.03.1999. Therefore, he submitted in his report that it was the petitioner who had quarrelled with Kolanchi, another typist and assaulted him and to justify her misconduct she made a false complaint against the staff member. It is also claimed that she did not make any complaint against Kolanchi or the Inspector of Labour to any higher officials of the department much earlier to the incident took place on 26.02.1999. It is also claimed that she was making an unpleasant situation in the office and in order to maintain smooth administration and to maintain the dignity and decorum of the office, a lenient view was taken against the petitioner and only a warning was imposed. 14. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.6756 of 2007. 15. It is rather unfortunate that the respondents should take such an obstinate stand contrary to the dictum laid down by the Supreme Court. In fact, the charge against the petitioner itself came to be made under Rule 17(a) only after two years from the date of the alleged incident. On the contrary, even as against the show cause memo, the petitioner spelt out the sexual harassment faced by her in the office of the Inspector of Labour at Cuddalore and made a specific complaint against the said Kolanchi. In such circumstances, the Supreme Court in Vishaka's case cited supra mandated the employer to conduct an enqury as directed by the Supreme Court. In paragraph 16, the Supreme Court stated that in the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, the Court lay down the guidelines and norms and directed that such guidelines shall be implemented and it is binding on all the parties under Article 141 of the Constitution. 16. Paragraphs 16 and 18 of the said Judgment reads as follows:- "16. In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the https://hcservices.ecourts.gov.in/hcservices/ Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution. 18. Accordingly, we direct that the above guidelines and norms would be strictly observed in all workplaces 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. 17. The term 'sexual harassment' has also been defined in the very same Judgment under the guidelines wherein, sexual harassment means and includes an unwelcome sexually determined behaviour either directly or by implication including physical contact and advances as well as unwelcome physical, verbal or non-verbal conduct of sexual nature. In order to prevent such an incident in a work place, the employers and persons incharge of the work places were directed to take appropriate steps to prevent such sexual harassment and they have also directed to constitute a complaint mechanism and also further followed by a disciplinary action. The complaint mechanism was directed to formed as found in column NO.7, which reads as follows:- "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 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. 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". 18. The said Judgment came to be followed by a subsequent decision of the Supreme Court in D.S.Grewal v Vimmi Joshi reported in (2009) 2 SCC 210. The following passages found in paragraphs 19, 21 and 22 may be usefully extracted below:- https://hcservices.ecourts.gov.in/hcservices/ "19......The legislature too has keeping in mind the above noted guidelines from Vishaka1 recently drafted the Protection of Women against Sexual Harassment at Workplace Bill, 2007. The Bill is to provide “for the prevention and redressal of sexual harassment of women at workplace and for matters connected therewith or incidental thereto”. The draft law provides for consideration of a mandatory committee to hear complaints of sexual harassment. It also stipulates the procedures for setting up of these committees. If the complaint is found to be true, the draft law provides for monetary compensation. It also stipulates a time period for completing the enquiry and for employers to take action against the accused. We are aware that the Bill has not till yet been enacted by Parliament. We cite the Bill only to show that the lawmakers too have accepted the directions and guidelines which had been laid down by this Court. 21. Vishaka1 has been followed in Apparel Export Promotion Council v. A.K. Chopra2 wherein a Division Bench of this Court inter alia held (SCC p. 776, para 27) that in a case “involving violation of human rights, the courts must forever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field.” 22. Before, however, a disciplinary proceeding is initiated in a case of this nature, a prima facie finding has to be arrived at as regards the role of the delinquent. It has been stated before us that the job of Colonel Hitendra Bahadur was merely to function as the Chairman in the absence of the regular Chairman". 19. In fact the principles laid down in Vishaka's case came to be applied even in respect of a complaint made by the woman employee on 12.08.1988 working in Apparel Export Promotion Council v A.K.Chopra reported in (1999) 1 SCC 759. It is relevant to extract paragraphs 26 and 27 of the said Judgment, which is as follows:- "26. There is no gainsaying that each incident of sexual harassment at the place of work, results in violation of the fundamental right to gender equality and the right to life and liberty — the two most precious fundamental rights guaranteed by the Constitution of India. As early as in 1993, at the ILO Seminar held at Manila, it was recognized that sexual harassment of women at the workplace was a form of “gender discrimination against women”. In our opinion, https://hcservices.ecourts.gov.in/hcservices/ the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate. The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (“CEDAW”) and the Beijing Declaration which directs all State parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is loud and clear. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate the working environment. These international instruments cast an obligation on the Indian State to gender-sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. (See with advantage — Prem Shankar Shukla v. Delhi Admn.7; Mackinnon Mackenzie and Co. Ltd. v. Audrey D’ Costa8; Sheela Barse v. Secy., Children’s Aid Society9 SCC at p. 54; Vishaka v. State of Rajasthan6; People’s Union for Civil Liberties v. Union of India10 and D.K. Basu v. State of W.B.11 SCC at p. 438.) 27. In cases involving violation of human rights, the courts must forever remain alive to the https://hcservices.ecourts.gov.in/hcservices/ international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field. In the instant case, the High Court appears to have totally ignored the intent and content of the international conventions and norms while dealing with the case". 20. In the present case, the respondents did not do anything despite the fact that the petitioner pointing out the direction issued by the Supreme Court. The so called discreet enquiry conducted by the 3rd respondent does not satisfy the complaint mechanism evolved by the Supreme Court. On the other hand, the enquiry seems to be made only to get the view of all the employees in the office. There is no finding whether the petitioner was sexually harassed at the hands of Kolanchi and whether the incident had actually took place. It does not speak well of the respondents about disposing of such a complaint without conducting an enquiry as mandated by the Supreme Court in Vishaka's case (cited supra). On the other hand, the argument that she has spoiled the office atmosphere and because of her transfer and being woman employee she was let out with a severe warning do no good to the image of the respondents office which was created to oversee the welfare of labour working in other offices. On the other hand, when there is complaint and counter complaint and when the counter complaint raises the issue of sexual harassment, it is the bounden duty of the respondents to conduct an enquiry as per the guidelines issued by the Supreme Court in Vishaka1's case. It is not open to them to say that her complaint was an after thought or that it was a counter blast to the complaint made by the said Kolanchi. On the other hand, in all her communication she has consistently spoken about the atmosphere in the earlier office being vitiated both by the conduct of the Inspector of Labour and by the fellow typist Kolanchi. Therefore, the respondents cannot ignore the complaint made by the petitioner to the detriment of the Supreme Court laying down the law and making it binding under Article 141 of the Constitution. Any finding in this regard can be spelt out only by the complaint mechanism evolved in Vishaka's case. 21. Under such circumstances, the writ petition No.6756 of 2007 stand allowed and the impugned order stand set aside. Respondents 2 and 3 are hereby directed to conduct an enquiry on the basis of the complaint made by the petitioner in accordance with the Vishaka's case cited supra within a period of two months from the date of receipt of a copy of this order and take appropriate action depending upon the report received by the Committee constituted in this regard. https://hcservices.ecourts.gov.in/hcservices/ 22. In the result, W.P.No.6755 of 2007 stand disposed of. W.P.No.6756 of 2007 stand allowed with the directions indicated above. No costs. Sd/ Asst Registrar /True Copy/ Sub Asst Registrar To 1 COMMISSIONER OF LABOUR TEYNAMPET CHENNAI 600 006 2 THE INSPECTOR OF LABOUR NO. 60 SUBRAYALU NAGAR CUDDALORE DISTRICT 3 THE SECRETARY DEPARTMENT OF LABOUR FORT ST.GEORGE CHENNAI 600009 4 THE DEPUTY COMMISSIONER OF LABOUR TEYNAMPET DEPARTMENT OF LABOUR CHENNAI 600006 5 The Inspector of Police, 60 Subbarayalu Nagar, Department of Labour, Cuddalore District. +1 CC to Government Pleader Sr.No.22352 W.P.Nos.6755 and 6756 of 2007 05.04.2010 (CO-MRD) THS : 19.04.2010 https://hcservices.ecourts.gov.in/hcservices/