Guidelines for Employers by Bombay High Court
Recently, the Bombay High Court, in the case of Vidya Akhave vs. Union of India, Department of Women & Children and Ors., decided on 4th October, 2016, made an observation that:
Very often women share common concerns which men do not necessarily share or the concern expressed by women have not been necessarily understood by men in the proper perspective. There is no manner of doubt that women are socially and physically vulnerable and are faced with sense of constant insecurity while working in any organization and it is the duty of every employer to ensure that the appropriate safeguards are provided by the men in the organization to protect the women from sexual harassment and other types of harassments. This observation came in light of the well-known Joseph Oncale vs. Sundowner Offshore Services, Inc. case of the Supreme Court of USA, (523 U.S.75 (1998)). In this context it said that an employer should ensure that the duties which are cast upon them by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) are complied in neat. The Bombay High Court held that:
(1) Though the Apex Court delivered the judgment in Vishakha’s case, supra, for almost a period of 11 years no legislation was passed and finally the Act was passed in 2013. Though the Act was passed in 2013, yet most of the companies, corporations and government undertakings have not constituted the Internal Complaints Committee. If this is not done, these Committee should be constituted in an expeditious manner.
(2) Apart from displaying the penal consequences of sexual harassments and organizing the workshops by organizing the programmes at regular intervals, it is necessary to provide the safeguards and assistance to the women in relation to the complaints of sexual harassment.
(3) There should be an inbuilt internal mechanism so that any instance of harassment faced by a woman can be conveyed in a confidential manner to the senior women superior officer and, therefore, an Internal Committee should be constituted to ensure that such instances are nipped in the bud at the inception itself.
(4) Safety mechanism should be evolved to ensure that the women employees can express their concern to a suitable higher officer.
(5) It further said that this is particularly important considering the fact that the number of working women has increased in India and they are occupying various post in different sectors and are contributing financially to the economy of the country.
(6) Very often men may view sexual conduct in a vacuum without full appreciation of the social setting or the underlying threat of violence that a woman may perceive. It is, therefore, necessary to continue to create awareness of the vulnerability of the women to all the men employees.
As guidelines for an Internal Complaints Committee (“ICC”), it said that:
(1) ICC should also act in a free and transparent manner in order to ensure that the complaints of sexual harassment are inquired into seriously and that too without any bias.
(2) When a complaint is filed by a woman employee, it should be promptly looked into and an enquiry should be made by the ICC within a reasonable period of time.
(Please note that the Act provides that inquiry must be concluded within 90 days.)
The facts of the case are that a complaint was filed by Vidya Akhave (“Petitioner”) with the then C.E.O. and M.D. of the workplace alleging that she was subjected to sexual harassment and urged them to constitute an ICC. She had to file a second complaint, then an ICC was constituted and a show cause notice was given to the Respondent. The ICC submitted a report after taking into consideration the allegations made by the Petitioner and came to the conclusion that appropriate action in terms of its Service Rules should be taken. There were also issues related to limitation in this case, which we have not discussed in this Article. The matter reached the Disciplinary Authority who came to the conclusion that some of the allegations were established and further observed that the acts of the accused were of unbecoming of a person of holding the office and it was appropriate to impose penalty as prescribed under the Regulation No. 61(f) of the IFCI Staff Regulations, 1974 and a major penalty was imposed of reduction to a lower stage by two stages with cumulative effect. As a result of this punishment, the Respondent No. 2 was transferred to Chennai, his salary was reduced. The Petitioner, then, approached the High Court of Bombay challenging the validity of punishment that was imposed by the Disciplinary Authority.