Case: Niloufer Irani & Others Vs. State of Maharashtra & Another

R.M.S. Khandeparkar, J.1. Heard. Rule. By consent, heard forthwith. The advocates for the respondents waive service. 2. By the present petition, the petitioners are seeking to quash the First Information Report registered as the C.R.No.206 of 2007 by N.M.Joshi Marg Police Station, Mumbai, against the petitioners. 3. It is the case of the petitioners that they are the senior officers working in a reputed multinational company KPMG India Pvt.Ltd. The petitioner Nos.1 to 4 are the H.R. Manager, Chief Operating Officer, Chief Executive Officer and former Director-H.R. of the said company respectively. The Respondent No.2 herein joined the said company as a Director on 19th September, 2005 and continued to work till 30th November, 2006, the date when her services were terminated. On 2nd April, 2007, the Respondent No.2 addressed a letter to the company making various allegations of sexual harassment against Vikram Utamsingh, Abizer Diwanji and Aneesh Maloo during her tenure in the company. It is the case of the petitioners that on receipt of the said complaint, a committee was constituted to inquire into the allegations as per the direction of the Supreme Court in Vishakhas case. The Respondent No.2, however, expressed her inability to appear before the said committee and further by a letter dated 22nd May, 2007 questioned the integrity and impartiality of the members of the committee and, therefore, on that count, she did not participate in the inquiry.4. On 16th July, 2007, the Respondent No.2 lodged the said First Information Report against the petitioners herein and three others alleging sexual harassment to her by the said three persons viz. Vikram Utamsingh, Abizer Diwanji and Aneesh Maloo, and further alleging failure to take cognizance of the said complaint in that regard by the petitioners inspite of the fact that it was obligatory for them to do so in view of a decision of the Supreme Court in Vishakas case. 5. It is the contention on behalf of the petitioners that the contents of the said FIR even on the face of it assumed to be correct, do not disclose any cognizable offence against the petitioners and the allegation of harassment is against the said three persons and not against the petitioners. The only allegation against the petitioners relates to inaction on their part with reference to the complaint alleged to have been made by the Respondent No.2 and there is absolutely no fact disclosed which could reveal any offence under Sections 354, 500, 506 and 509 of Indian Penal Code either individually or read with Section 34 of Indian Penal Code against the petitioners or any one of them. It is their further contention that the facts in the complaint nowhere disclose any order having been disobeyed by the petitioners and as regards the directions of the Honble Supreme Court in Vishakas case, they were duly complied with and it was the Respondent No.2 herself who refused to participate in the said inquiry and in any case Section 188 of the Indian Penal Code does not apply to the judgment of the Honble Supreme Court. Besides, in terms of Section 195 of the Code of Criminal Procedure, the question of taking cognizance of the offence alleged under Section 188 of the Indian Penal Code cannot arise unless there is a complaint by the public servant whose orders has been disobeyed is filed by him in the Court. It is their further contention that taking into consideration the fact that the Respondent No.2 herself had refused to participate in the inquiry to be held by the committee constituted by the company, the impugned FIR is to be held as nothing but an abuse of process of law and that itself would justify quashing of FIR.6. It is the case of the Respondent No.2, on the other hand, that a complaint clearly discloses cognizable offence committed by the accused persons named therein. As regards the inquiry by the committee appointed by the said company, it is sought to be contended that the said committee constituted of the professionals who had been associated with the company for more than five years and had pecuniary interest in the company and therefore, could not be termed as an independent committee. Besides, such a committee ought to have been constituted to carry out an independent inquiry at the time when the Respondent No.2 had lodged her complaint and prior to termination of her services. However, the committee which has been constituted was only an eyewash and against all the rules of natural justice. Vishaka guidelines contemplate committee on a complaint by an employee and not by an ex-employee. Considering the fact that inspite of bringing the instances of sexual harassment to the notice of the petitioners, they had failed and refused to initiate any action in the matter, they have clearly breached the guidelines issued by the Honble Supreme Court in Vishakas case. Being so, it is the case of the respondent No.2 that there is no case made out for quashing the FIR.7. The undisputed facts which are revealed in the matter are that the Respondent No.2 was employed as a Director with the said Company for a period of 14 months from September, 2005 to November, 2006. The services of the Respondent No.2 came to be terminated on 30th November, 2006 consequent to the opinion expressed by her superior against her in view of certain allegations made against the superior. It was only thereafter and as late as on 2nd April, 2007 that the Respondent No.2 addressed a letter to the company making various allegations of sexual harassment against the three persons viz. Vikram Utamsingh, Abizer Diwanji and Aneesh Maloo. Undisputedly, thereafter the committee was constituted to inquire into the allegation of harassment, however, the Respondent No.2 has not participated in the inquiry. There is no allegation of sexual harassment against any of the petitioners.8. In the background of above undisputed facts, if one peruses the impugned FIR, it is apparent that apart from failure on the part of the petitioners to take immediate cognizance of the complaint regarding sexual harassment of the said three persons to the Respondent No.2, there is no other allegation against any of the petitioners.9. Undoubtedly, the Apex Court in Vishaka & Ors. v. State of Rajasthan & Ors., reported in (1997)6 SCC 241 had clearly directed that there should be complaint mechanism and complaint committee in its committee to inquire into the allegation of any sexual harassment to a female employee in a company. Equally it is true that such direction would apply to the cases between employer and employee and not in relation to an ex-employee.10. Neither the FIR nor the affidavit-in-reply filed on behalf of the Respondent No.2 discloses any written complaint having been made to the petitioners while the Respondent No.2 was in employment of the said company i.e. during the period from September, 2005 to November, 2006 except E-mail stated to have sent on 2nd October, 2006 expressing her offer to resign on the issue of sexual harassment. 11. The facts placed on record therefore disclose that there was no complaint as such filed by the Respondent No.2 with the petitioners or the company in which she was employed making allegation of sexual harassment which would have compelled the company to constitute a committee and refer the matter to the said committee during the period while the Respondent No.2 was in employment of the company.12. In any case, once it is not in dispute that such committee was constituted even after cessation of Respondent No.2 in the employment of the company pursuant to the complaint made by her in that regard, but it was the Respondent No.2 herself who refused to participate in the inquiry, it cannot be said that there is any case for criminal prosecution against the petitioners. 13. Section 354 of the Indian Penal Code provides punishment for assault or criminal force used against a woman with intent to outrage her modesty. There are no allegations of any assault having been made or criminal force having been used by any of the petitioners against the respondent No.2 either with the intent to outrage her modesty or otherwise. 14. Section 509 of IPC provides punishment for use of word or making of gesture or any act intended to insult the modesty of a woman. No such allegation was found against any of the petitioners in the FIR.15. Section 500 of IPC relates to punishment for defamation. The facts alleged in the complaint nowhere reveal any act on the part of any of the petitioners, which could constitute an act of criminal intimidation punishable under Section 506 of IPC. 16. Section 188 of IPC provides punishment for disobedience to orders promulgated by public servant. By no stretch of imagination, the Supreme Court can be said to be a public servant and for the same reason, the directions issued by the Apex Court in Vishakas (supra) cannot be construed to be directions by a public servant. Undoubtedly, the guidelines issued thereunder are binding and are to be strictly observed by the companies, failing which, appropriate action can be taken against a defaulter. 17. Considering the facts alleged in the complaint, which has been recorded as the FIR, it is apparent that nowhere it discloses any cognizable offence as such against any of the petitioners. Even as far as the directions in Vishakas case (supra) are concerned, there appears genuine attempt on the part of the company to enforce the same. However, no fruitful result could yield from the inquiry by the committee on account of non-cooperation by the Respondent No.2. In any case, non-compliance of the directions in that regard is essentially and primarily to be against the company and the Directors who are responsible for non-compliance thereof. However, the said issue does not arise in the case in hand as we do not find any such failure on the part of the company to comply with such directions in the absence of proper complaint being filed during her service tenure. Mere sending of an E-mail offering desire to resign on account of allegation of sexual harassment made by her and probably action on the part of the company against her, that itself would not lead to a conclusion about failure on the part of the company to comply with the directions issued by the Apex Court in Vishakas case (supra).

Decision reasoning: 1[ds]7. The undisputed facts which are revealed in the matter are that the Respondent No.2 was employed as a Director with the said Company for a period of 14 months from September, 2005 to November, 2006. The services of the Respondent No.2 came to be terminated on 30th November, 2006 consequent to the opinion expressed by her superior against her in view of certain allegations made against the superior.Neither the FIR nor thefiled on behalf of the Respondent No.2 discloses any written complaint having been made to the petitioners while the Respondent No.2 was in employment of the said company i.e. during the period from September, 2005 to November, 2006 exceptstated to have sent on 2nd October, 2006 expressing her offer to resign on the issue of sexual harassment. 11. The facts placed on record therefore disclose that there was no complaint as such filed by the Respondent No.2 with the petitioners or the company in which she was employed making allegation of sexual harassment which would have compelled the company to constitute a committee and refer the matter to the said committee during the period while the Respondent No.2 was in employment of the company.Considering the facts alleged in the complaint, which has been recorded as the FIR, it is apparent that nowhere it discloses any cognizable offence as such against any of the petitioners. Even as far as the directions in Vishakas case (supra) are concerned, there appears genuine attempt on the part of the company to enforce the same. However, no fruitful result could yield from the inquiry by the committee on account ofby the Respondent No.2. In any case,of the directions in that regard is essentially and primarily to be against the company and the Directors who are responsible forthereof. However, the said issue does not arise in the case in hand as we do not find any such failure on the part of the company to comply with such directions in the absence of proper complaint being filed during her service tenure. Mere sending of anoffering desire to resign on account of allegation of sexual harassment made by her and probably action on the part of the company against her, that itself would not lead to a conclusion about failure on the part of the company to comply with the directions issued by the Apex Court in Vishakas case (supra).