Case: Renuka Mukherjee Vs. Vodafone Essar Ltd. and Ors

the said Complaint to its logical conclusion and subjected herself to cross-examination. The contention on behalf of the Petitioner that she did not prosecute the said Complaint because she was not a workman and her Complaint before the Labour Court may not have been entertained, is merely stated to be rejected. In her Complaint before the Labour Court, she has specifically pleaded that from June 1999 she was shifted to pager division from the customer services department, where the work assigned to her was clearly clerical and she was relegated to a workman status till she was terminated on 01-08-2000. As a matter of fact, even in the present Petition, the Petitioner has reiterated in paragraph 9 that she was doing low profile clerk job of inferior status, which falls in the category of workman. The Petitioner cannot be allowed to take a stand contrary to her pleadings in this Petition. She cannot approbate and reprobate to suit her convenience. In any event, nothing prevented the Petitioner from withdrawing her Complaint before the Labour Court if she felt that her Complaint before the Labour Court may not be entertained on technical grounds. We find substance in the submission of the learned Counsel for the Respondent that the Complaint was kept pending by the Petitioner merely to harass the Respondents knowing fully well that she would not be appearing before the Labour Court. 15. It is also required to be noted that in the present Petition there is no prayer seeking direction from the Court to constitute a Complaints Committee on sexual harassment. Pertinently, even at the time of admission of the Petition, the Petitioner through her Counsel did not press for the constitution of the Complaints Committee to look into her Complaint on sexual harassment. It is an admitted position that during the course of her employment there was no letter written by the Petitioner to the Respondent No. 1-Company seeking constitution of Complaints Committee to look into her grievance on sexual harassment. As a matter of fact even in the letter dated 04-08-2000 of the Petitioner as also her Advocates letter dated 22-08-2000 addressed to the Respondent No. 1-Company (for the first time), no such request was made. Merely to test the bonafides of the Petitioner, during the course of hearing, we suggested to the learned Counsel for the Petitioner that if the Petitioner was serious about her Complaint even at this stage we can explore possibility of directing the Respondent No. 1-Company to have the Complaint of the Petitioner atleast to the extent of veracity of her Complaint examined by the Complaints Committee which is now stated to be in place in the Respondent No. 1-Company. However, the learned Counsel for the Petitioner, after taking instructions, stated that the Petitioner is now settled in Australia and does not wish to appear before any Committee. The other judgments cited on behalf of the Petitioner were cases where compensation was awarded because the injury was established/accepted and therefore the said judgments do not help the case of the Petitioner. Though the Petitioner claims that her fundamental rights were violated and claims compensation relying upon the judgment of the Supreme Court in the case of Vishaka, she has given up prayer clause 28(b)(iv) of the Petition as discussed in paragraph 4 hereinabove. The said prayer clause 28(b)(iv) reads as follows: (b)(iv) that the letter of termination of the Petitioners service dated 1st August 2000 is entirely malicious, bad in law, void, non-est, being in violation of the Fundamental Rights of the Petitioner and against the law laid down by the Honble the Supreme Court; (emphasis supplied) 16. In view of the aforesaid discussion, we do not find that this is a fit case to grant compensation to the Petitioner for non-constitution of the Complaints Committee by Respondent No. 1. It is an admitted position that at the relevant time there was no Complaints Committee constituted by the Respondent No. 1 despite the law laid down by the Supreme Court in Vishaka. To that extent it can be said that the Respondent No. 1-Company had not implemented the directions of the Supreme Court in Vishaka. We are informed by the learned Senior Counsel for the Respondent No. 1 that the Complaints Committee was constituted later and is presently in place. It is no doubt true and as rightly pointed out on behalf of the Respondent No. 1 that there were several establishments even in the Government Departments and other Institutions where the Complaints Committee were yet to be constituted even in the year 2012. As a matter of fact, in Medha Kotwal Lele (supra) and Seema Lapcha (supra) directions have been issued by the Apex Court in the year 2012 to constitute Complaints Committee in terms of Vishaka. Even assuming that there was no Complaint of the Petitioner on record of the Respondent No. 1 making grievance of sexual harassment during the course of her employment and it was only after she was terminated that she had made allegations of sexual harassment as contended by the Respondents, we find that nothing prevented the Respondent No. 1 from inquiring into her grievance even after her termination. However, there was no Complaints Committee in place to inquire into Complaint of sexual harassment made by the Petitioner. In our view, some preliminary inquiry also could have been undertaken by the Complaints Committee to determine the veracity of the Complaint and whether the same was bonafide and genuine, had such Complaints Committee been in place. It is noticed that the Respondent No. 1 did constitute an Inquiry Committee consisting of three persons, which shows that they were conscious of the fact that the Complaint of the Petitioner was required to be look into. However, curiously that Inquiry Committee has admittedly not issued any notice to the Petitioner pertaining to her Complaint and she was not examined and no opportunity of hearing was given to her. That inquiry therefore was no inquiry in the eyes of law.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Thus, at the time of admission of the Petition, the Petitioner had not pressed the prayer challenging her termination order dated 1 August 2000 in view of the substantive challenge to the said termination order made by her in her Complaint (ULP) No. 93 of 2000 filed before the Labour Court. It is not in dispute that the said Complaint before the Labour Court was ultimately dismissed ex parte.In Vishaka, the 3-Judge Bench of the Supreme Court has laid down the guidelines in respect of the protection of women from sexual harassment at work places. The Supreme Court inter alia noted that in absence of any legislative measures there was a need to find an effective alternate mechanism for prevention of working women who may be exposed to sexual harassment which results in violation of fundamental rights of gender equality and right to life and liberty for women workers under Article 14, 15, 19(1)(g) and 21 of the Constitution. In paragraph 17 and 18 of the judgment in Vishaka, the Supreme Court has laid down the guidelines and issued directions in the following terms:17. The GUIDELINES and NORMS prescribed herein are as under:-HAVING REGARD to the definition of human rights in Section 2(d) of the Protection of Human Rights Act, 1993.TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time.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:1. Duty of the employer or other responsible persons in work places and other institutions:It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:a) physical contact and advances;b) a demand or request for sexual favours;c) sexually coloured remarks;d) showing pornography;e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victims employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.3. Preventive Steps:All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.(b) The rules/regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.4. Criminal Proceedings:Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.5. Disciplinary action:Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.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 employers 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 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 under 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.8. Workers Initiative:Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in employer-employee meetings.Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.10. Third-party harassment:Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person-in-charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in private sector.12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.18. Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places 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.12. We have given our due consideration to the submissions of the learned Counsel. In paragraph 3 of the judgment of the Supreme Court in Vishaka it is observed as under:When, however, instances of sexual harassment resulting in violation of fundamental rights of woman workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.Thus, it is only when there is/are instance/s of sexual harassment that it can be said that there is violation of fundamental rights under Articles 14, 19 and 21 of the Constitution. In other words, unless it is established that there was sexual harassment, there can be no violation of fundamental rights under Articles 14, 19 and 21. In the present case, as conceded before us by the learned Counsel for the Petitioner, this Court in the exercise of writ jurisdiction under Article 226 of the Constitution is not expected to adjudicate the disputed question of fact whether or not the Petitioner was a victim of sexual harassment. In our view, therefore, the non-constitution of the Complaints Committee by the Respondent No. 1-Company in its work place may not ipso facto mean that the fundamental rights of the Petitioner have been violated.13. From a bare perusal of the prayer clauses of the Petition, it would be apparent that there is no prayer made by the Petitioner for compensation for non-constitution of Complaints Committee by the Respondent No. 1. The prayer for compensation made in prayer clause 28(d) is in relation to seeking compensation from the respondents Nos. 1 to 4 for grievous injury and irreparable damage done to her physical and her psych by reason of action complained against them. Thus, this prayer clause 28(d) proceeds on the basis that the injury and damage is established, which is not so in the present case.We are not inclined to go into this disputed question of fact whether Exhibits H, I, J & L were on record of the Respondent No. 1 or they were false and fabricated documents. Indeed, it is not possible for us in the exercise of our writ jurisdiction to rule on the above disputed question of fact and come to a positive finding in this regard. It is required to be noted that the Petitioner had filed a Complaint before the Labour Court being Complaint (ULP) No. 98 of 2000 under the provisions of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act (MRTU & PULP Act) prior to the filing of the present Petition. The pleadings in the said Complaint before the Labour Court were on the same lines as that of the present Petition. In the said Complaint, the Petitioner had claimed victimization and had also sought a declaration that the Respondent No. 1 had committed unfair labour practice under the MRTU & PULP Act apart from seeking setting aside of her termination and reinstatement. The Petitioner had asserted that she was a victim of sexual harassment and since she did not cave into the demand of the Respondent No. 2, she came to be terminated. The Labour Court is a fact finding Court and could have gone into the issues threadbare including the issue whether or not the said Exhibits H, I, J & L were on record of the Respondent No. 1 or whether they were false and fabricated documents. The Petitioner, however, chose not to pursue the said Complaint and after about 112 adjournments the Complaint ultimately came to be dismissed ex parte by the Labour Court on 06-05-2008. It is not disputed before the Court that the Petitioner had not attended the Labour Court even on a single occasion. In our view, the Petitioner ought to have taken the said Complaint to its logical conclusion and subjected herself to cross-examination. The contention on behalf of the Petitioner that she did not prosecute the said Complaint because she was not a workman and her Complaint before the Labour Court may not have been entertained, is merely stated to be rejected. In her Complaint before the Labour Court, she has specifically pleaded that from June 1999 she was shifted to pager division from the customer services department, where the work assigned to her was clearly clerical and she was relegated to a workman status till she was terminated on 01-08-2000. As a matter of fact, even in the present Petition, the Petitioner has reiterated in paragraph 9 that she was doing low profile clerk job of inferior status, which falls in the category of workman. The Petitioner cannot be allowed to take a stand contrary to her pleadings in this Petition. She cannot approbate and reprobate to suit her convenience. In any event, nothing prevented the Petitioner from withdrawing her Complaint before the Labour Court if she felt that her Complaint before the Labour Court may not be entertained on technical grounds. We find substance in the submission of the learned Counsel for the Respondent that the Complaint was kept pending by the Petitioner merely to harass the Respondents knowing fully well that she would not be appearing before the Labour Court.15. It is also required to be noted that in the present Petition there is no prayer seeking direction from the Court to constitute a Complaints Committee on sexual harassment. Pertinently, even at the time of admission of the Petition, the Petitioner through her Counsel did not press for the constitution of the Complaints Committee to look into her Complaint on sexual harassment. It is an admitted position that during the course of her employment there was no letter written by the Petitioner to the Respondent No. 1-Company seeking constitution of Complaints Committee to look into her grievance on sexual harassment. As a matter of fact even in the letter dated 04-08-2000 of the Petitioner as also her Advocates letter dated 22-08-2000 addressed to the Respondent No. 1-Company (for the first time), no such request was made. Merely to test the bonafides of the Petitioner, during the course of hearing, we suggested to the learned Counsel for the Petitioner that if the Petitioner was serious about her Complaint even at this stage we can explore possibility of directing the Respondent No. 1-Company to have the Complaint of the Petitioner atleast to the extent of veracity of her Complaint examined by the Complaints Committee which is now stated to be in place in the Respondent No. 1-Company. However, the learned Counsel for the Petitioner, after taking instructions, stated that the Petitioner is now settled in Australia and does not wish to appear before any Committee. The other judgments cited on behalf of the Petitioner were cases where compensation was awarded because the injury was established/accepted and therefore the said judgments do not help the case of the Petitioner. Though the Petitioner claims that her fundamental rights were violated and claims compensation relying upon the judgment of the Supreme Court in the case of Vishaka, she has given up prayer clause 28(b)(iv) of the Petition as discussed in paragraph 4 hereinabove. The said prayer clause 28(b)(iv) reads as follows:that the letter of termination of the Petitioners service dated 1st August 2000 is entirely malicious, bad in law, void, non-est, being in violation of the Fundamental Rights of the Petitioner and against the law laid down by the Honble the Supreme Court;16. In view of the aforesaid discussion, we do not find that this is a fit case to grant compensation to the Petitioner for non-constitution of the Complaints Committee by Respondent No. 1. It is an admitted position that at the relevant time there was no Complaints Committee constituted by the Respondent No. 1 despite the law laid down by the Supreme Court in Vishaka. To that extent it can be said that the Respondent No. 1-Company had not implemented the directions of the Supreme Court in Vishaka. We are informed by the learned Senior Counsel for the Respondent No. 1 that the Complaints Committee was constituted later and is presently in place. It is no doubt true and as rightly pointed out on behalf of the Respondent No. 1 that there were several establishments even in the Government Departments and other Institutions where the Complaints Committee were yet to be constituted even in the year 2012. As a matter of fact, in Medha Kotwal Lele (supra) and Seema Lapcha (supra) directions have been issued by the Apex Court in the year 2012 to constitute Complaints Committee in terms of Vishaka. Even assuming that there was no Complaint of the Petitioner on record of the Respondent No. 1 making grievance of sexual harassment during the course of her employment and it was only after she was terminated that she had made allegations of sexual harassment as contended by the Respondents, we find that nothing prevented the Respondent No. 1 from inquiring into her grievance even after her termination. However, there was no Complaints Committee in place to inquire into Complaint of sexual harassment made by the Petitioner. In our view, some preliminary inquiry also could have been undertaken by the Complaints Committee to determine the veracity of the Complaint and whether the same was bonafide and genuine, had such Complaints Committee been in place. It is noticed that the Respondent No. 1 did constitute an Inquiry Committee consisting of three persons, which shows that they were conscious of the fact that the Complaint of the Petitioner was required to be look into. However, curiously that Inquiry Committee has admittedly not issued any notice to the Petitioner pertaining to her Complaint and she was not examined and no opportunity of hearing was given to her. That inquiry therefore was no inquiry in the eyes of law.