External member does not only have to be independent but also must have expertise in issues related to sexual harassment
In the case of Ruchika Singh Chhabra vs. M/S. Air France India and Anr., decided by the High Court of Delhi at New Delhi on 30th May, 2018, Ruchika Singh Chhabra (“Appellant”) a former employee of Air France India (“Respondent”), alleged that she had been sexually harassed by another employee, Stanislas Brun. She lodged a complaint with Internal Committee (“IC”) of the Respondent. One Mr. Michael Dias, Secretary, the Employers’ Association, Delhi got appointed as an external member (“EM”) of the Respondent. The Appellant sent several emails to the IC seeking clarifications with regard to the affiliation of Respondent with the Employer’s Association as she was not convinced of the independence of the external member appointed by the IC. However, these went unanswered. Before the High Court, the Appellant contended that the constitution of the IC was contrary to the provisions of Sexual Harassment of Women at Workplace (Prevention, prohibition and Redressal) Act and Rules, 2013 (“Law”) as the EM was not associated with any non-governmental organization and his qualifications were not informed to the Appellant. She also stated that the EM was in fact a labour lawyer and had not disclosed that either he or his organization, (i.e. Employers Association) has not been engaged for profit by the Respondent before and/or there is no conflict of interest.
Respondent also stated that the objectivity of EM cannot be questioned merely because he had supported or had been engaged by employers in the past. As an independent legal professional with vast experience, his independence could not be doubted and in the absence of any specific challenge to his qualifications, or experience, his claim that he had advised in the framing of sexual harassment prohibition policies at private employers’workplaces or participation on similar occasions could not be dismissed. It contended that the independent person appointed is a lawyer with expertise in deciding labour issues. His curriculum vitae, it said that it is on record for confirming the averments made with regard to the criteria for his selection. According to Respondent, the requirement of a person familiar with issues pertaining to sexual harassment under Section 4(2)(c) of the Law is to be read with Rule 4 which provides that this would be a person who is familiar with labour, service, civil or criminal law.
The High Court of Delhi held that Respondent was in error in relying on Rule 4 of the Law which is to be applied only to Section 7(1)(c) which deals with the constitution of the Local Committee and not the IC as in the instant case. It said that there is nothing on record, in the facts of the case to show the experience of EM in dealing with cases of sexual harassment, the cause of women in general and that he is from a non-governmental organisation. It also said, “after repeated inquiries by the Appellant in this regard, only vague clarifications were given by the ICC. It is important here to recollect and underline Parliamentary intent in enacting the Workplace Harassment Prohibition Act. The objective behind the requirement of a member from non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment in the Workplace Harassment Prohibition Act is to prevent the possibility of any undue pressure or influence from senior levels as was laid down by the Supreme Court in the case of Vishaka (supra). In fact, Parliamentary objective of providing a NGO member is to keep in ICC, an independent and impartial person in position to command respect and compliance from influential management.” Referring to “Nemo debet esse judex in propria causa” which states that no man shall be a judge in his own cause, the Court said that the deciding authority must be impartial and without bias. It further said that the “basic object of the Parliament is to provide security to the woman. It is imperative that a woman who is alleging sexual harassment feels safe during the course of the proceedings of the ICC and has faith that the proceedings are unbiased and fair.” Declaring appointment of the EM invalid, the Court set aside the proceedings and report of the IC and directed to the Respondent that IC should be reconstituted in strict compliance with the requirements under Law within thirty days and the committee should conduct its inquiry afresh.
In the end, the Court observed that “Vishaka Guidelines are to be taken seriously, and not followed in a ritualistic manner. The march of our society to an awareness and sensitivity to the issue of sexual harassment and its baneful effects, flagged in Vishaka (supra), culminated in the path breaking Workplace Harassment Prohibition Act over 17 years later. Even today, the world over is rocked by horrific tales of all forms of sexual harassment of female co-workers at varied workplaces. Decision makers, Parliament, courts and employers are to be ever vigilant in ensuring that effective policies are swiftly and impartially enforced to ensure justice and see that no one is subjected to unwelcome – and unacceptable behavior. Unlike stray cases of individual indiscipline, which are dealt with routinely, upon employers lie the primary obligation to ensure the effectuation of these laws and rules, aimed at securing a safe workplace to their women employees. A permissiveness or infraction in implementation in one case, implies the employer’s lack of will, or inability to assure such safety and equality at its workplace. A complainant who takes courage to speak out against unwelcome behavior regardless of the perpetrator is not merely an object of pity or sympathy, but as Alex Elle said: “You are not a victim for sharing your story. You are a survivor setting the world on fire with your truth. And you never know who needs your light, your warmth, And raging courage…” And upon us all the employer, courts and the society as a whole, lies the duty to root out such wholly unwholesome behavior.”