Law Relating To Sexual Harrasment

MAHARSHI DAYANAND UNIVERSITY, ROHTAK

FACULTY OF LAW PROJECT REPORT ON LAW RELATING TO SEXUAL HARRASMENT IN INDIA

SUBMITTED TO Dr. Neelam Assistant Professor Faculty of Law

SUBMITTED BY Chirag Roll No. 2017 Regd. No. 2018241168 Course – Diploma in Labour and Social Welfare (Semester – 1st)

LAW RELATING TO SEXUAL HARRASMENT

Abstract Women were sexually harassed long before there was a term for it. Since industrialization, women working in factories and offices have had to endure sexual comments and demands by bosses and coworkers as the price for economic survival. In the absence of civil and penal laws in India, for providing adequately and specific protection to women from sexual harassment in the work places, in the year of 1997, the Supreme Court of India passed a landmark judgment in a case titled Vishaka vs. State of Rajasthan, laying down serval guidelines to be followed by establishments in dealing with complaints about sexual harassment. After almost two decades, the specific Act against sexual harassment has been formulated by the Indian Legislature. Although the Act was welcomed and expected to meet the needs of the present day, the problematic provisions and unanswered questions present a conundrum for application of the Act, and should to be clarified for effective implementation of the Act.

Introduction A safe workplace is a woman’s legal right. Sexual harassment constitutes a gross violation of women's right to equality and dignity. It has its roots in patriarchy and its attendant perception that men are superior to women and that some forms of violence against women are acceptable. One of these is workplace sexual harassment, which views various forms of such harassment, as harmless and trivial. Any act of sexual harassment to a woman at workplace is not only the violation of her constitutional rights but

also violation of her human rights. It creates an insecure and hostile work environment, which discourages women’s participation in work, thereby adversely affecting their economic empowerment and the goal of inclusive growth. It is offensive at a very personal level and in a way undermines the right to equal opportunity and equal treatment of women at the workplace. The laws in India have strived to provide for the protection to women against sexual harassment. Criminal and civil remedies have been made available by such laws. The researcher has studied the different legislations that have been enacted throughout the years. The Vishakha guidelines have also been discussed in relation to such offences. These guidelines provided for protection when there did not exist any specific legislation against sexual harassment.

Sexual Harassment at Workplace Sexual harassment is considered as a violation of a woman’s fundamental right to equality, which right is guaranteed by Articles 14 and 15 of the Constitution of India. In Workplace sexual harassment creates an insecure and hostile work environment, thereby discouraging women’s participation in work and adversely affecting their social and economic growth. Sexual harassment is not only viewed as a discrimination problem related to safety and health, but also as a violation of fundamental rights and human rights. It is offensive at a very personal level and in a way undermines the right to equal opportunity and equal treatment of women at the workplace. Workplace bullying often goes on to take the form of sexual harassment. Power dynamics play a major role in the advancement of actions that amount to sexual harassment. The Supreme Court of India through its

landmark judgment in Vishakha v. State of Rajasthan has deemed sexual harassment to be a violation of human rights standards as it threatens the dignity of the person facing such harassment. The results of a global survey asking women journalists to recount the abuse experienced at work, show that nearly 65% of the respondents said they had encountered "intimidation, threats, or abuse" in relation to their work, according to the online survey by the International News Safety Institute (INSI) and International Women's Media Foundation.

Meaning of Sexual Harassment Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature in the workplace or learning environment, according to the Equal Employment Opportunity Commission. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. The victim and perpetrator can be a male or a female. The law in India, however, recognizes and penalizes sexual harassment only against women. Sexual harassment does not always have to be specifically about sexual behavior or directed at a specific person. It can be a general comment that is ‘unwelcome’. The Merriam Webster Dictionary defines sexual harassment as “uninvited and unwelcome verbal or physical behavior of a sexual nature especially by a person in authority toward a subordinate (such as an employee or student)" The term “unwelcome” implies that, such conduct has not been solicited or initiated by the employee and, she takes it as undesirable and offensive.

Sexual harassment thus includes an extensive range of acts, gestures and expressions having sexual connotations. Perceptions differ about what behaviors constitute sexual harassment. However, typical examples of sexual harassment include sexually oriented gestures, jokes, or remarks that are unwelcome; repeated and unwanted sexual advances; touching or other unwelcome bodily contact; and physical intimidation. Sexual harassment can occur when one person has power over another and uses it to coerce the person to accept unwanted sexual attention. It can also occur among peers-for example, if coworkers repeatedly tell sexual jokes, post pornographic photos, or make unwelcome sexual innuendos to another co-worker. Therefore, verbal harassment of a sexual nature and in pursuance of sexual favours can also come within the ambit of the term sexual harassment. Sexual harassment can occur in the workplace or learning environment, like a school or university. It can happen in many different scenarios, including after-hours conversations, exchanges in the hallways, and non-office settings of employees or peers. Sexual harassment should not be tolerated in any circumstances and should be reported at the first instance so that actions can be taken immediately against the perpetrator.

The act of sexual harassment can be of two forms: Quid Pro Quo (literally ‘this for that’) - Implied or explicit promise of preferential/detrimental treatment in employment

- Implied or express threat about her present or future employment status Hostile Work Environment - Creating a hostile, intimidating or an offensive work environment - Humiliating treatment likely to affect her health or safety

Guidelines formulated in Vishakha v. State of Rajasthan & Ors., AIR 1997 SC 3011

During the 1990s, Rajasthan state government employee Bhanwari Devi who tried to prevent child marriage as part of her duties as a worker of the Women Development Programme was raped by the landlords of the community. The trial court acquitted the offenders and this inspired several women’s groups to file a writ petition in the Supreme Court of India. The Supreme Court through this landmark judgment stated that every instance of sexual harassment is a violation of fundamental rights guaranteed under Articles 14, 15 and 21 of the Constitution of India. It also amounts to violation of the “Right to freedom” under Article 19. In this case, the Supreme Court took 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. As such it was thought to be 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. The guidelines specifically

provide that the employer 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.

The guidelines laid down were in regards to the following:1.

Duty of employer - 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. 2. Preventive steps - All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. These steps should ensure that appropriate work conditions are 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 employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment. 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. Express prohibition of sexual harassment as discussed in this case must be notified, published and circulated in appropriate ways. 3. 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. As such the liability is put on the employer to ensure that appropriate steps are taken when such cases of sexual harassment are reported. Disciplinary actions

are

also

to

be

initiated

against

any

such

perpetrator.

4. 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 employer’s organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. The complaint mechanism should be adequate to provide, where necessary, a Complaints Committee, a special counselor 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 member should be women. Moreover, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either a member of an NGO or other body who is familiar with the issue of sexual harassment. 5.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. The Central Government and State Governments were also 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. Amidst various other developments, controversies and delays, the Indian legislature finally enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act No. 14 of 2013), with an objective to protect women against sexual harassment at workplace and to put in place a redressal mechanism to handle complaints.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 In 2013, the Government of India notified the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act. Consistent with the Vishaka judgment, the Act aspires to ensure women’s right to workplace equality, free from sexual harassment through compliance with the elements of Prohibition, Prevention and Redressal.

Scope and Ambit of the Act The Prevention of Workplace Sexual Harassment Act extends to the ‘whole of India’ and stipulates that a woman shall not be subjected to sexual harassment at her workplace. Further, the Prevention of Workplace Sexual Harassment Act applies to both the organized and unorganized sectors in India. The statute, inter alia, applies to government bodies, private and public sector organisations, non-governmental organisations, organisations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals and a dwelling place or a house.

Definitions Aggrieved Women: Aggrieved woman in this Act means a woman of any age who is employed or not at the workplace who alleges to have been subjected to any act of sexual harassment. It also includes woman employed in a dwelling place or house.It covers domestic workers which includes a woman who is employed to do the household work in any household for remuneration whether in cash or in kind. She may be appointed directly or through any agency. She may be on permanent, part time or full time basis. It does not include any member of the family of the employer. Appropriate Government: It means in relation to a workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the Central Government or the Union territory administration, the Central Government and by the State Government, the State Government. In relation to any workplace not covered under sub-clause (i) and falling within its territory, the State Government.

Workplace: The scope of workplace in this Act is inclusive in nature. It includes:

(i) Any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or

wholly or substantially financed by funds provided by the appropriate government or the local authority or a government company or corporation or a co-operative society (ii) It also includes private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, nongovernmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service. (iii) Hospitals or nursing homes. (iv) Any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto. (v) Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey. (vi) In relation to unorganized sector, workplace means an enterprises owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever and where the enterprise employs workers, the number of workers is less than ten. Employer: In relation to any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, it is the head of that department. In relation to a workplace not covered under sub-clause (i) of this section, it is whoever

is responsible for the management, control and supervision of such workplace. In relation to workplace covered under sub-clauses (1) and (ii), the person discharging contractual obligations with respect to his or her employees is the employer. In relation to a dwelling place or house it is a person of a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker. Sexual Harassment-The term sexual harassment under the Act covers one or more unwelcome acts or behaviour whether directly or by implication. Such unwelcome acts or behavior are: (i) physical contact and advances or (ii) a demand or request for sexual favours or (iii) making sexually coloured remarks or (iv) showing pornography or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment at workplace may amount to sexual harassmenti) Implied or explicit promise of preferential treatment in her employment or ii) Implied or explicit threat of detrimental treatment in her employment or

iii) Implied or explicit threat about her present or future employment status or iv) Interference with her work or creating an intimidating or offensive or hostile work environment for her or v) Humiliating treatment likely to affect her health or safety. To enable prevention of sexual harassment at the workplace, it is critical to recognize and differentiate between welcome and unwelcome sexual behaviour. In 2010, the High Court of Delhi endorsed the view that sexual harassment is a subjective experience and for that reason held: “We therefore prefer to analyze harassment from the complainant’s perspective. A complete understanding of the [complainant’s] view requires an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. Men tend to view some forms of sexual harassment as harmless social interactions to which only overly-sensitive women would object. The characteristically male view depicts sexual harassment as comparatively harmless amusement. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.” Section 3(1) of the Act specifically prohibits the sexual harassment of any woman at a workplace. The complaint of sexual harassment at workplace may be made in writing to the internal committee if it is constituted or the local committee, in case it is not so constituted with in a period of three months from the date of incident

and in case of a series of incidents with in a period of three months from the date of last incident. The committee is also empowered to extend this time limit of three months if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period. If woman cannot file complaint in writing then the committee shall render all reasonable assistance to the woman for making the complaint in writing. The complainant shall submit to the complaints committee six copies of the complaint along with supporting documents and the names and addresses of the witnesses. If aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

Complaints Committee Complaints committee under the Act means Internal Committee or the Local Committee as the case may be. The Act provides for the constitution of internal complaints committee. Every employer of workplace is bound to constitute in writing the internal complaints committee. Where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the internal committee shall be constituted at all administrative units or offices. The Local Committee is set up where the Internal Complaints Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself. The committee shall consist of the following: i) A presiding officer and other members. The presiding officer and every member of the committee shall hold office for such period not exceeding three years from the date of their nomination.37 Presiding officer of the committee shall be a woman employed at a senior level at the workplace from amongst the employees. If senior level woman employee is not available, the presiding officer shall be nominated from other offices or administrative units of the workplace. Further, in case, other offices or administrative units of the workplace do not have a senior level woman employee, the presiding officer shall be nominated from any other workplace of the same employer or other department or organization. ii) Minimum two members, male or female from amongst the employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge.

iii) One member shall be from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. At least one-half of the total members so nominated shall be women.

Procedure followed by the Complaints Committee: Before initiating the inquiry, Complaints Committee on the request of the aggrieved woman may try to settle the dispute with the respondent through conciliation. In case there is no settlement and the respondent is an employee, the complaint committee shall proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exists, in such manner as may be prescribed or in case of domestic worker, the complaint committee shall, if prima facie case exists, forward the complaint to the police within a period of seven days for registering the case under section 509 of the Indian Penal Code and any other relevant provisions of the said Code. Further, where the aggrieved woman informs the complaints committee that the respondent is not complying with any term or condition of the settlement arrived through conciliation, the complaints committee shall proceed to make an inquiry into the complaint or forward the complaint to the police. In case, both the parties are employees, the parties shall during the course of inquiry be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the committee. The complaints committee shall send one

of the copies received from the aggrieved woman to the respondent within a period of seven working days. The respondent shall file his reply to the complaint along with his list of documents and names and addresses of witnesses within a period not exceeding ten working days from the date of receipt of the documents.

Powers of Complaints Committee: The Internal Complaints Committee and the Local Committee have been vested with the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, which are: i) Summoning and enforcing the attendance of any person and examining him on oath; ii) Requiring the discovery and production of documents; iii) Any other matter which may be prescribed. The Committee on the written request of the aggrieved woman has the power to recommend to the employer during the pendency of the inquiry the following and the employer shall implement the recommendations:

(i) To transfer the aggrieved woman or the respondent to any other workplace;

(ii) To grant leave to the aggrieved woman up to a period of three months and this leave shall be in addition to the leave she would be otherwise entitled;

(iii) To grant such other relief to the aggrieved woman as may be prescribed.

(iv) In case, the complaints committee arrives at a conclusion that the allegation against the respondent has not been proved, it can recommend to the employer that no action is required to be taken in the matter.

(v) In case, the complaints committee arrives at a conclusion that the allegation against the respondent has been proved, it can recommend to the employer the following:

(a) to take action for sexual harassment as a misconduct under the service rules or if no service rules have been made, in such manner as may be prescribed

(b) to deduct from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs. If employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment, it may direct to the respondent to pay such sum to the aggrieved woman. If respondent fails to pay the sum, the complaints committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

Compensation to the Complainant

The complaints committee is empowered to determine the sum to be paid to the aggrieved woman. The complaints committee at the time of determining the sum shall have regard to:

i) the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman; ii) the loss in the career opportunity due to the incident of sexual harassment; iii) medical expenses incurred by the victim for physical or psychiatric treatment; iv) the income and financial status of the respondent; v) feasibility of such payment in lump sum or in installments. The Complaints Committee may recommend to the employer on the written request of aggrieved woman to: i) restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report and assign the same to another officer ii) restrain the respondent in case of an educational institution from supervising any academic activity of the aggrieved woman.

Duties of the Employer The Act also provides for the duties of the employer in case of sexual harassment. It provides that every employer shall:

i) Provide safe working environment at the workplace. It also includes the safety from the persons coming into contact at the workplace.

ii) Display at any conspicuous place in the workplace, the penal consequences of sexual harassment and the order constituting the Internal Committee.

iii) Organise workshops and awareness programs at regular intervals for sensitizing the employees with the provisions of the Act. Organise orientation programs for the members of the Internal Committee.

iv) Provide necessary facilities to the internal committee or the local committee for dealing with the complaint and conducting an inquiry.

v) Assist in securing the attendance of respondent and witnesses before the internal committee or the local committee. vi) Make available information having regard to the complaint to the internal committee or the local committee. vii) Provide assistance to the aggrieved woman if she chooses to file a complaint under IPC or any other law for the time being in force.

viii) Cause to initiate action against the perpetrator under IPC or any other law for the time being in force or if the aggrieved woman so desires, where

the perpetrator is not an employee in the workplace at which the incident of sexual harassment took place. ix) Treat sexual harassment as misconduct under the service rules and initiate action for such misconduct. x) Monitor the timely submission of reports by the Internal Committee.

xi) The employer shall include in the annual report of his organization, the number of cases filed and disposed under this Act or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer.

Punishment for the Employer If the employer fails to constitute an internal committee or contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder shall be punishable with fine which may extend to fifty thousand rupees.68 If any employer who is convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to:

i) Twice the punishment which might have been imposed on a first conviction subject to the maximum punishment provided for the same offence. And in case a higher punishment is provided under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding punishment;

ii) The government or the local authority can cancel his license or consider withdrawal or non-renewal or approval of his license which is required for carrying on his business or activity. Complaints committee has the power to recommend to the employer to take action against the complainant, in case, complaints committee arrives at a conclusion that the complaint has been made maliciously and knowing it to be false or the complainant has produced any forged or misleading document. But mere inability to substantiate the complaint or provide adequate proof in support of the complaint need not attract action against the complainant. Moreover, the malicious intent on the part of the complainant shall be established by the complaints committee before recommending the action against the complainant. Other laws in relation to sexual harassment at workplace in India Apart from the specific Act on Sexual Harassment against Women at Workplace there are other legislative protections available against sexual harassment in India.

These are:

1. Industrial Employment (Standing Orders) Act, 1946 It is a central enactment which, inter alia, requires an employer to define and publish uniform conditions of employment in the form of standing orders. the standing orders should contain terms of employment including, hours of work, wage rates, shift working, attendance and late coming, provision for

leaves and holidays and termination or suspension/dismissal of employees. It applies to every industrial establishment wherein one hundred or more workmen are employed, or were employed on any day of the preceding twelve months.This Act extends to the whole of India.The Standing Orders Act prescribes Model Standing Orders, serving as guidelines for employers and in the event that an employer has not framed and certified its own standing orders, the provisions of the Model Standing Orders shall be applicable. The Model Standing Orders not only define ‘sexual harassment’ in line with the definition under the Vishaka Judgment, but also envisages the requirement to set up a complaints committee for redressal of grievances pertaining to workplace sexual harassment. It is interesting to note that ‘sexual harassment’ is not limited to women under the Standing Orders Rules.

2. Indian Penal Code, 1860 Conduct that may be construed as sexual harassment, can also constitute an offence and can be penalized under the IPC. Prior to the Criminal Amendment Act, 2013 it was brought within the ambit of Section 354 which made any act outraging the modesty of a woman a crime. After the said amendment, Section 354A has been inserted to make sexual harassment a particular offence. The following sections address the offence of sexual harassment:

Section 294: Obscene acts in any public place, singing obscene songs to the annoyance of others. Punishment for violation of this Section is Imprisonment for a term of up to 3 months or fine, or both.

Section 354 (A): A man committing any physical contact, advances involving

unwelcome and explicit sexual overtures; or demanding or requesting sexual favours; or showing pornography against the will of a woman; or making sexually coloured remarks, shall be guilty of the offence of sexual harassment.It entails a punishment of rigorous imprisonment for a term which may extend to three years. Section 509: Uttering any word or making any gesture intended to insult the modesty of a woman and intrudes her privacy.The offender is punished with simple imprisonment for a term which may extend to three years, and also with fine.

3. The Indecent Representation of Women (Prohibition) Act, 1987 An Act to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto.If an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing ‘indecent representation of women’ they are liable for a minimum sentence of two years. According to this Act, "indecent representation of women" means the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals. A critical analysis of the legislative protections available

Prior to the year 1997, India neither had a legislation combating the menace of sexual harassment at workplace nor was there any sturdy judicial pronouncement dealing with the same. Equality to women was guaranteed under the Constitutional safeguards provided by Articles 14, 15, 19 and 21. There did not exist any legislation that specifically dealt with the problem of sexual harassment within or outside the workplace. India is also a party to the Convention on Elimination of Discrimination Against Women. Unfortunately, despite ratifying CEDAW in 1993, India remained without an effective legislation battling the nuisance of sexual harassment at workplace for almost 20 years until 2013 and working women in the country continued to struggle with sexual advances at the place of their work in the absence of any stringent grievance redressal mechanism. The Indian Penal Code also did not criminalize specific acts of Sexual Harassment until the Amendment Act of 2013 when Section 354A dealing with sexual harassment specifically was inserted in the Penal Code. Although there are two sections in the IPC which deals with the outraging of modesty of women namely Section 354 and 509, the term modesty has not been defined anywhere. In the case Swapna Barman v.Subir Das the Supreme Court held that “Under Section 509 that the word ‘modesty’ does not lead only to the contemplation of sexual relationship of an indecent character. The section includes indecency, but does not exclude all other acts falling short of downright indecency.” Moreover, the view of the Supreme Court is that the essence of a woman’s modesty is her sex. As per the Justice Verma Committee Report, certain modifications should be done in Section 509 of the IPC. The Committee has suggested that use of words, acts or gestures

that create an unwelcome threat of a sexual nature should be termed as sexual assault. Similarly in Section 294 the word obscene has been used but the word has not been defined. The meaning of the word keeps varying from place to place. It differs in accordance to the circumstances- cultural, social and economic. Moreover, the essential condition to be satisfied is that the obscene act or song must cause annoyance. Since annoyance is a mental faculty of a person, therefore it has to be derived from the facts and circumstances of the case.

The Sexual Harassment Against Women at Workplace Act, 2013 was passed in order to protect the rights of women at workplace in light of constitutional and human rights of women at national as well as international level. It is also construed as a response to the public outrage that was seen after the Nirbhaya case in 2012. It extends to the whole of India including the State of Jammu and Kashmir. It is the duty of the appropriate government to monitor the implementation of this Act and maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment at workplace. Although this Act was welcomed as a much needed step on the part of the legislature, there are certain parts which need to be further amended. Discrimination is evident in the scope and ambit of the act as it is not gender-neutral. The Act provides protection against acts of sexual harassment only for women and not men. Interestingly, various recent studies and surveys have shown that that very often, workplaces also involve women initiating and engaging in acts of sexual harassment. In a recent survey there were 527

people queried across seven cities in the country. It was found that in practicality, circumstances are not totally so as they were envisaged by the legislators. Although, this Act is a great step forward in protection for women, it provides no mechanism to deal with situation where men are the victims of sexual harassment. According to the US Equal Employment Opportunity Commission, both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. But the Indian laws, except the Industrial Employment (Standing Orders) Act do not deal with such situations. In Hyderabad, 29% of the respondents said they have been sexually harassed by their female bosses while 48% accused their male bosses while in Delhi 43% reported to have been sexually harassed by their female colleagues. Under this Act, an aggrieved woman means a woman of any age who is employed or not at the workplace who alleges to have been subjected to any act of sexual harassment.It also includes domestic workers which includes a woman who is employed to do the household work in any household for remuneration whether in cash or in kind. The aggrieved woman is only one who “alleges”. But it is seen that most cases of sexual harassment go unreported. This is primarily because it would have been embarrassing to discuss such matters with their family members and moreover it would have only aggravated their problem by troubling their family members who in distress might have asked them to leave the job / education or there was some apprehension that they might have found faults with their behaviour to have “invited” the abuse.Therefore, the woman who faces such harassment does not even ‘allege’ of any such occurrence. Moreover, it has been provided under the Act that “where the aggrieved woman for any other

reason is unable to make a complaint, a complaint may be filed by any person who has knowledge of the incident, with her written consent.”But the Act covers women who work as domestic help. It is seen in most cases that the women are not literate. The Act does not also give any provisions for educating and sensitizing women from such backgrounds regarding the remedies available to them. Another question that has been raised on numerous occasions is with regard to the definition of the word “employee”. The ambit of this definition is very wide. It can roughly be interpreted to include almost any male worker. This is evident by use of words like, “any work”, “regular”, “ad hoc”, “temporary”, “with contract”, “through agent‟, “without agent”, “voluntary basis” etc. Therefore, this raises a greater possibility of untrue allegations for malafide reasons and gives a lot of scope for frivolous and unnecessary litigation. It has been pointed out, that in light of the increased number of complaints since the passing of this Act, the employers feel discouraged from hiring women all together. This could result a great step backward in providing equal opportunity to women. if the case is found to be malafide, the complainant would face the same consequences, but no one really believes the latter would ever actually be carried out. Moreover, should a situation arise where a victim is unwilling to complain and an employer is aware of the situation there is no obligation under this Act to report it against the victim’s wishes. The employers should be enabled to take suo motu action, in case they come to know about such incident. And the committee should take cognizance of the complaint made by a person without consent of the aggrieved woman. Under this Act aggrieved woman is required to file a

complaint under section 9 to the complaints committee. But woman should be free to file a complaint either to the committee or before any authority at the workplace and authority should be bound to transfer the complaint to the complaints committee. Aggrieved woman can file a complaint to the committee within three months of the incident and committee is empowered to extend this period up to three months in case reasonable cause of delay. She must be free to file a complaint at any time after commission of the incidence in case of reasonable cause of delay.

Under the definition of “sexual harassment” the Act defines acts that include physical contact, verbal request and showing of pornography. The provision narrows the scope of what may be construed as sexual harassment for application of this Act. Acknowledgement of technological advancements could have also been noted, so as to include all possible electronic means of sexual harassment. The definition of “sexual harassment” has also neglected to grant protection against potential victimization of the complainant by an employer. In regards to the constitution of the Internal Complaints Committee it should be noted that in-house management of complaints may act as a deterrent to victims. It is therefore suggested that the complainant need not forcibly file a complaint with the Internal Complaints Committee. A more adequate forum would be an independent employment tribunal to handle complaints in a more efficient manner, which would simultaneously be preferable to a victim.Apprehension has been expressed with respect to the disposition of the committee as a whole. The reason for it is the feminist biasness of the committee itself as it comprises of stakeholders strongly prejudiced in favour of the female sex. The most conspicuous shortcoming,

however, is that the internal committee is composed of persons without any legal qualifications. This absence of training specifications for the internal complaints committee will result in an ill-equipped team and obstruct justice. Section 10(1) provides for the settlement of the dispute through conciliation at the request of the aggrieved woman. Sexual harassment at workplace is the violation of right to work in safe environment of women. It becomes illogical and inconceivable to ask a sexually harassed woman to reconcile with her offender. Although, it is at the request of the aggrieved women to initiate such proceedings, provisions should be made as to why the woman would want to arrive at a settlement. The provision under Section 10(4) is that no further enquiries shall be made against the offender. However, stringent disciplinary steps should be taken against the perpetrator. Complaints committee is empowered to grant leave to the aggrieved woman during the pendency of the inquiry for up to three months. These leaves should be paid leaves and it should not be granted only on the recommendation of the ICC. The employer should be obligated to grant such leaves to the aggrieved women. If the alleged sexual harassment is proved, the committee is empowered to take action against sexual harassment in accordance with the prescribed service rules, or to deduct adequate compensation from the salary of the employee, or to recover the compensation from the accused employee. Instead drastic action, such as dismissing the accused from employment or suspending him for a considerable time period without any pay should be taken. Section 26 prescribes penalties for non-compliance with the provisions of the Act,

which includes a monetary fine upto Rs.50,000, and on repetition of the same offence, could result in punishment being doubled and/or cancellation of registration of the entity or revocation of any statutory business licenses. Herein, a heavier fine along with imprisonment as a punishment should be imposed rather than cancellation of licenses as revocation of license will inflict injury on unrelated and innocent parties associated with the business of the employer as well. Moreover, the complainant is required to submit six copies of the complaint to the ICC. There should not be any need to submit six copies of the complaint before complaints committee. It should be the duty of the employer to provide copy of the complaint to all the members of the committee.

International Conventions on laws against sexual harassment At an international level, sexual harassment has been identified to be a human rights violation as it causes harm to the dignity of the person harassed and can lead to hamper the emotional as well as mental well-being of the person. As sexual harassment in most cases is seen to be advanced towards a woman it is also perceived to be an outcome of the perpetual discrimination faced by women. As such international conventions like the UN Charter and CEDAW discusses the elimination of all forms of discrimination faced by women in all fronts. Incidents of sexual harassment are increasing exponentially—especially in Asian countries, where over half the world population resides. In India, a woman is sexually harassed every 12 minutes.In China, a survey was conducted by Women’s Watch China in 2009, which found that 20 per cent of the 1,837 female respondents interviewed had experienced sexual harassment at work.Workplace Bullying is a globally recognised problem reflected in the recent agendas of international organisations such as the International Labour Office (ILO) and the World Health Organization (WHO). The ILO also conducts widespread awareness of the issue of sexual harassment as it is discrimination on the ground of sex in employment and occupation. As a consequence, the Committee

of

Experts

on

the

Application

of

Conventions

and

Recommendations conducted a special survey in 1996 on Convention No . 111 and confirmed that sexual harassment is a form of sex discrimination against women in employment as it undermines equality, damages working relationships and impairs productivity.

Universal Declaration of Human Rights (UDHR) In 1948, the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly. Although this document was not originally binding on member states, it has received such wide acceptance as an outline of foundational human rights principles that it has been recognized as a binding expression of customary law and an authoritative interpretation of the UN Charter itself. Article 3 of the UDHR states, “Everyone has the right to life, liberty and security of person.” This right was reaffirmed in by the International Covenant on Civil and Political Rights(1966), which protects the right to life (Article 6) and the right to liberty and security of person (Article 9).These rights, as well as others in the UDHR, ICCPR, and the International Covenant on Social, Economic, and Cultural Rights (ICESCR), such as the right to equal protection under the law and the right to the highest standard of physical and mental health, are implicated in violence against women cases. Therefore, States that are parties to these instruments have an implicit obligation to protect women from violence as part of their obligations. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) It was adopted in 1979 when awareness of sexual harassment at workplace was only beginning to emerge. As such there is no specific prohibition of sexual harassment against women. It was rather seen to be a form of violence against women and its prevention was interpreted to be covered under the prevention of all forms of violence under the Convention. The State parties to the present Convention expressed the concern that despite

international conventions concluded under the auspices of the United Nations and the specialized agencies and the resolutions, declarations and recommendations adopted by the United Nations and the specialized agencies promoting equality of rights of men and women, extensive discrimination against women continues to exist. The Convention has twin objectives: to prohibit discrimination and to ensure equality. The most important development is that for the first time, the Convention provides an extensive definition of the term “discrimination against women” as any distinction, exclusion or restriction made on the basis of sex. The Recommendation notes that ―equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace.The Recommendation also states that all parties should take all legal and other measures that are necessary to provide effective protection of women against gender-based violence, sexual assault and sexual harassment in the workplace.Although has ratified the CEDAW in 1993, yet it took two decades for formulate a legislation for protection and redressal against sexual harassment of women at workplace.

The United Nations Fourth World Conference on Women The United Nations Fourth World Conference on Women, held in Beijing in 1995, adopted a Platform for Action, includes provisions on sexual harassment in the workplace. It calls on governments, trade unions, employers, community and youth organizations, and NGOs to eliminate sexual harassment. More specifically, governments are urged to enact and enforce laws and administrative measures on sexual and other forms of harassment in the workplace.

Indigenous and Tribal Peoples Convention This Convention of 1989 is the only convention that specifically refers to the offence of sexual harassment at workplace. It provides that governments shall do everything possible to prevent any discrimination between workers belonging to the peoples to whom the Convention applies and other workers, including taking measures to ensure that they enjoy protection from sexual harassment. In consonance with the various international standards set through these conventions different countries have implemented laws at the national level in different ways. In many countries, specific acts of harassment have been categorized as a form of some other kind of prohibited conduct, such as sexual assault or defamation, without explicitly referring to ―sexual harassment. It may also be addressed under more than one legal branch in the same jurisdiction. Such as in Singapore, it can be under tort law as well as criminal law. In India, there is a specific legislation against sexual harassment at workplace as well as provisions in its Penal Code. In a number of countries, sexual harassment has been explicitly referred and recognized by their courts and tribunals as a distinct form of some broader type of prohibited behavior. Most commonly, it has been recognized as a form of sexual discrimination and prohibited under equality or anti-discrimination laws. In many other countries, legislatures have enacted legislation, or amended existing provisions, to specifically prohibit workplace sexual harassment. In many countries sexual harassment against workplace is included under their labour law codes. Conclusion

Sexual harassment is considered as a violation of a woman’s fundamental right. It is against the human rights standards set at the international level through conventions such as the UDHR or the CEDAW. Prior to the year 1997, India neither had a legislation combating the menace of sexual harassment at workplace nor was there any sturdy judicial pronouncement dealing with the same apart from the Constitutional safeguards. The Sexual Harassment Against Women at Workplace Act as an alternative structure and process is welcome, but needs much alteration. Helping the victims to make informed choices about the different resolution avenues, providing trained conciliators, settlement options by way of monetary compensation, an inquisitorial approach by the Committee must be adopted. After almost 4 years of its enactment, consideration must be given to the criticisms against it and thereby, adopt provisions that answer the need of the hour. The legislation appears to be further excessive in the redressal mechanisms which it has established by leaving short-comings in the powers and functions of these non-judicially equipped bodies. Moreover, some provisions could have been more leaning to the female victim, such as the provisions for conciliation and punishment for false or malicious complaints. The problematic provisions and unanswered questions present a conundrum for application of the Act, and should to be clarified for effective implementation of the Act.

Almost 24 years after India got its first guidelines to prevent sexual harassment at the workplace and eight years after the government enacted a law for it, there are few publicly available data on how efficient these mechanisms are, an IndiaSpend review found. In fact, the government maintains no centralised data relating to cases of harassment of women at workplaces, the Parliament was told in July 2019. Also, 95 per cent of India's women workers are employed in the informal sector and find it difficult to access legal mechanisms to report sexual harassment at workplace, experts told IndiaSpend. On February 17, a Delhi court acquitted journalist Priya Ramani in a defamation lawsuit filed by former editor and sitting member of parliament M J Akbar for accusing him of sexual harassment in 1993. "The woman has a right to put her grievance at any platform of her choice and even after decades," said Judge Ravindra Kumar Pandey in his judgment acquitting Ramani of defamation. He also noted that, at the time in 1993, she had no avenues to seek redressal for her alleged harassment, as India formulated the Vishaka Guidelines to prevent sexual harassment at the workplace, and provide women a forum to complain to, only in 1997. The guidelines evolved, 16 years later, into the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly known as the Prevention of Sexual Harassment (PoSH) Act. However, eight years since its enactment, the government has still not published any information on how effectively this law and its committees function.

While Ramani's acquittal in the defamation case is a victory for women trying to report sexual harassment, it is not the norm. Often, women are not able to access the law. Those who can access the law face several institutional and cultural challenges. Hundreds of thousands of women, such as informal sector workers, are largely excluded institutionally from accessing the PoSH Act. Also, no government body tracks the law's implementation. Meanwhile, independent research has found low overall compliance. The majority (56 per cent) of 655 districts did not respond to requests to provide data on the functioning of local committees to look into workplace sexual harassment and 31 per cent of companies surveyed in 2015 were not compliant with the law. "Of course, there is a huge pushback against women's truths," Ramani told IndiaSpend.

Many women excluded from the law The PoSH Act requires that any company with more than 10 employees set up an internal complaints committee including a senior woman employee, at least two other employees and a member from a non-governmental organisation familiar with issues of sexual harassment. Every district also ought to create a local complaints committee to receive complaints from companies with fewer than 10 employees and from informal workers, including domestic workers, street vendors, construction workers, homebased workers such as those involved in weaving, accredited social health activists (ASHAs) and community health workers. As many as 95 per cent of India's working women (195 million) are in the informal sector.

Under the law, any woman can file a written complaint either to the internal or local complaints committee within three to six months of the incident of sexual harassment. The issue could be resolved between the woman and the respondent "through conciliation" or complaints committees could initiate an inquiry and suggest appropriate action based on the findings. Women can also file complaints through the Women and Child Development Ministry's Sexual Harassment electronic–Box (SHeBox), an online complaint platform for all women workers, launched in November 2017. Complaints filed through this platform are then passed on to either the internal or local complaints committee. The majority of India's women workers find it difficult to access these redressal methods, especially SHeBox, given that the number of women who use the internet in India is low. Women's internet use varies widely across states, with 77 per cent women in Sikkim reporting that they had used the internet compared to 21 per cent women in Bihar, according to data from India's latest National Family Health Survey. "The existing legal frameworks so far offer protection to women who already have some privilege... for example, if they work in the formal sector," said Nikita Sonawane, a lawyer and founder of the Criminal Justice and Police Accountability Project. "However, women in the informal sector are largely also from marginalised communities of class and caste. They do not find space in the law or the women's movement." Sometimes institutional processes are unclear even for women in the formal sector. In 2019, when a woman working in the office of the then Chief Justice Ranjan Gogoi tried to lodge a sexual harassment complaint against

him, it caused a dilemma for those who had to look into the matter. The case revealed a blind spot in India's existing rules--while a Supreme Court employee could complain about sexual harassment against her co-workers and seniors (including judges), there is no mechanism for someone to lodge a sexual harassment complaint against the Chief Justice of India. All existing civil and criminal guidelines are a deadend for such a victim.

District complaint committees do not function well District local complaints committees are not functioning meaningfully, found a series of Right to Information requests by the Martha Farrell Foundation, a New-Delhi based organisation working on gender issues, in 2016 and 2017. The foundation had asked how many local committees are constituted in each state and their members, contact details, timings of the committees and how many cases they had received and resolved. But 56 per cent of the 655 districts they reached out to did not respond to the requests. Only 29 per cent said they had local committees to look into workplace sexual harassment and 15 per cent said they had not set up a committee yet. Although the law requires that these committees should be headed by a woman, and should have at least five members including one from an NGO, this was not followed on the ground, found the Martha Farrell Foundation.

How the law is supposed to be monitored Every year, internal and local committees have to file a report to the district officer with details on the number of cases filed and their disposal, as per the PoSH Act. "The appropriate Government shall monitor the implementation

of this Act and maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment at workplace," the Act says. The district officer should also forward a brief on all annual reports of companies with details on compliance to the law to the state government so that they can maintain a record of the data, according to the Ministry of Women and Child Development. "The responsibility to maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment at workplace, which are established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the State at District and State levels rests with the concerned State Governments," Minister for Women and Child Development Smriti Irani told the Parliament this February. Central or state governments do not publicly compile and release data on how many companies and districts comply with the guidelines and have committees, the number of complaints filed and the outcome of these complaints. Data exist in disparate and scattered public sources. The Centre has provided information only when asked questions on sexual harassment at the workplace in Parliament, but these data are piecemeal and difficult to find, an IndiaSpend investigation found. The replies also do not specify how many districts and/or companies the data are compiled from. She Box had received 612 complaints--196 from the central government, 103 from state governments and 313 from private organisations, as per a government response to the Rajya Sabha in July 2019. But there is no method to track the complaints year-on-year. For instance, another government response to Parliament last February mentioned that nearly 70

per cent of the 539 complaints filed between November 2017 and February 2020 were pending. The National Commission for Women (NCW), an autonomous body constituted by the Indian government, also receives complaints of sexual harassment against women in the workplace. In 2018-19, the NCW received 88 complaints of sexual harassment at the workplace.

Crime records data on sexual harassment Under the PoSH Act, neither the woman nor the accused has legal representation, the courts are not involved in the inquiry or to take cognisance of any crime. But women can separately file police cases. In 2019, 505 cases of "insult to modesty of women at the work or in office premises" were recorded by the National Crime Records Bureau (NCRB), an increase of 5 per cent from 2017 and of nearly 800 per cent from 57 cases in 2014

JUDGMENT RELATING TO LAW RELATING TO SEXUAL HARRASMENT

Shanta Kumar v. Council of Scientific and Industrial Research (CDIR) & Ors, Delhi High Court ((2018) 156 FLR 719) In the present case, although the Complaint Committee had accepted that there was evidence to show that respondent no.3 had held the arm of the petitioner, it had concluded that the same was not a sexually determined behaviour but was in the nature of the altercation. The Complaint Committee concluded that respondent no.3 might have held the petitioner‟s arm and thrown the material in her hand in a fit of anger; although, the said incident may be a case of harassment and is deplorable, the same would not qualify as a sexual harassment. Plainly, all physical contact cannot be termed as sexual harassment and only a physical contact or advances which are in the nature of an "unwelcome sexually determined behaviour" would amount to sexual harassment. K.P. Anil Rajagopal v. State of Kerela, Kerela High Court ((2018) 1 KLJ 106) There is no sexual harassment complained of and a solitary allegation of any or all of the acts enumerated under Section 3(2), cannot constitute an offense under the Act of 2013. Any such act should be connected with and in relation to any act or behaviour of sexual harassment. This Court also does not find any allegation of a promise, threat or an offensive or hostile work environment or a humiliating treatment against the 6th respondent, from

2016 the complaint; which is in connection with an act or behaviour of sexual harassment. There is no allegation that the purported harassment was intended at sexual exploitation of the complainant; which can only be if there is any allegation as such of a sexual offense. What is complained of is the report made as to the 6th respondent having 'abducted' (sic) the original report. The complaint is that the allegation in the report was only to harass the complainant which cannot constitute a sexual harassment merely because it was made against a female employee. If such complaints are allowed to be made under the Act of 2013, then, there could be no independent report made against any women employee in any organisation and no controlling authority would be able to properly supervise the work of a female employee. As to the ground of maintainability; this Court is of the opinion that the College of Engineering, being a 'State' under Article 12 of the Constitution of India, and the action having been taken under the Act of 2013, especially causing serious consequences to the petitioner, this is a fit case where Article 226 of the Constitution of India can be invoked. The Committee's report also does not disclose any finding of sexual harassment. The statements made before the Committee indicate that the report of the Programme made by the 6th respondent; after submission was taken back by the 6th respondent and resubmitted. The Committee only found that the language used by the petitioner, specifically the word 'abducted' was improper. Intemperate language, if at all, used in a report, merely because the report was against a female employee, cannot constitute sexual harassment. The W.P.(C) No. 13811/2016 Committee constituted under the Act of 2013 acted far beyond the scope of the powers conferred on it. In such circumstance, the

recommendations of the Committee are set aside and the complaint found to be not one capable of institution under the Act of 2013. Shital Prasad Sharma v. State of Rajasthan and Ors. (2018 SCC OnLine Raj 1676) Instant petition has been filed by the petitioner, who was working as Director, State Institute of Agriculture Management (SIAM), Durgapura, Jaipur, challenging the enquiry report dt.27.11.2017 submitted by the Chairperson, Working Women Exploitation Prevention Committee. The petitioner has prayed in the writ petition that the respondents-State may be restrained from taking any coercive steps against him on the basis of the enquiry report dt.27.11.2017. The petitioner has further challenged the show cause notice dt.05.01.2018 issued by the Department of Personnel for taking action against him on the basis of the enquiry report dt.27.11.2017. The petitioner while filing the main writ petition, prayed that the respondents if pass any order on the basis of the enquiry report dt.27.11.2017 and the show cause notice dt.05.01.2018, the same may also be taken on record and be declared null and void

This court finds that as per Rule 18A of the CCA Rules, 1958, the Complaints Committee was required to follow the procedure in accordance with the CCA Rules, 1958 at least to the extent of enquiry as far as practicable as per the CCA Rules, 1958. This court finds that the Committee recorded the statements of complainants on different dates i.e. 31.10.2017 & 01.11.2017 in (39 of 43) [CW-2313/2018] absence of the petitioner. The

petitioner has not been extended any opportunity to cross-examine them. The said procedure followed by the Committee cannot be said to be in consonance with Rule 18A of the CCA Rules, 1958. The language and intent of Rule 18A of the CCA Rules, 1958 clearly shows that the enquiry report which is prepared by the Committee is to be prepared by them by following the procedure. The Complaints Committee has to follow the procedure of the enquiry as far as practicable in accordance with the procedure laid down in the CCA Rules, 1958, the said Rule does not specifically say that the entire procedure as provided under the CCA Rules, 1958 is to be followed but nevertheless, the intention seems to be that the enquiry should be conducted in such a manner where principle of natural justice is being followed. This court finds that if there is a specific provision under Rule 18A of the CCA Rules, 1958, the Complaints Committee at least ought to have followed the broad principles of giving an opportunity to the delinquent/ petitioner to at least cross examine the complainants and other two witnesses who where examined in his absence and the petitioner was denied this opportunity. This court finds that the respondents have not come out with a case that any separate procedure had been prescribed for the Complaints Committee for holding the enquiry into the complaint of sexual harassment. This court further finds that sub-rule (4) of Rule 7 of the Rules, 2013 further provides the manner of enquiry into the complaint and it specifically says that the Complaints Committee shall make enquiry into the complaints in accordance with the principles of natural justice, this Court finds that even as per the (40 of 43) [CW-2313/2018] Rules of 2013, the Committee has to follow the principles of natural justice.

In the instant case, the Committee called the complainants in absence of the petitioner and recorded their statements. The petitioner was also called to given his representation or to submit his defence, however, this opportunity cannot be termed in consonance with the requirement of principles of natural justice. It is found that serious charges of sexual harassment are leveled against the delinquent employee, he is required to be given a reasonable opportunity to get the right of at least putting cross questions to the complainants in order to reach to the conclusion as to whether such misconduct had taken place or not. It is also with the purpose of eliciting truth from the complainant as to whether such act has taken place or not and whether the gravity or allegation of such charges stand scrutiny of truthfulness or not. In the opinion of the court, either going by the Rule 18A of the CCA Rules, 1958 or considering the provisions of Section 11 of the Act of 2013 and sub-rule (4) of Rule 7 of the Rules of 2013, the respondents have committed illegality in conducting the enquiry and there has been a fault in conducting enquiry and as such the petitioner has been denied the right to defend himself and violation of principles of natural justice has taken place. This court finds that the procedure which has been evolved by the Committee is not in consonance with the rules of natural justice and such procedure cannot be termed fair. The Apex Court in the case of Additional District and Sessions Judge 'X' Vs. Registrar General, High Court of Madhya Pradesh and Ors. reported in (2015) 4 SCC 91 has considered the issue of enquiring (41 of 43) [CW-2313/2018] into the allegation of sexual harassment against sitting Judges of High Court and in the manner in which

'In-House Procedure' is to be invoked. The Apex Court in the judgment has observed as follows:"46.1 Through the first stage, the prima facie veracity of the allegations, contained in the complaint is ascertained. If so, whether a deeper probe is called for. The first stage does not contemplate an in-depth examination of the allegations. It requires merely an assessment based on the contents of the complaint, and the response of the concerned judge. All that the Chief Justice of the High Court is required to do, is to determine whether a deeper probe is required. This is to be done, on the basis of a logical assessment made on a consideration of the response of the concerned Judge (with reference to the allegations levelled in the complaint). 46.2 It is the second stage of the "in-house procedure", relating to sitting judges of High Courts, which could lead to serious consequences. The second stage is monitored by none other, than the Chief Justice of India. Only if the Chief Justice of India endorses the view expressed by the Chief Justice of the High Court, that a deeper probe is called for, he would constitute a "three-member Committee", and thereby take the investigative process, to the second stage. This Committee is to comprise of 6 Page 61 two Chief Justices of High Courts (other than the concerned High Court), besides a Judge of a High Court. The second stage, postulates a deeper probe. Even though the "three-member Committee" is at liberty to devise its own procedure, the inherent requirement provided for is, that the procedure evolved should be in consonance with the rules of natural justice. Herein, for the first time, the authenticity of the allegations, are to be probed, on the basis of an inquiry. The incumbents of the "three-member Committee", would have no nexus, with the concerned judge. Not only would the

concerned judge have a fair opportunity to repudiate the allegations levelled against him, even the complainant would have the satisfaction, that the investigation would not be unfair. The "in-house procedure" was devised to ensure exclusion of favouritism, prejudice or bias." (Emphasis supplied.) This court finds that the said judgment of the Apex Court also reiterates the position of law that any Committee which is (42 of 43) [CW-2313/2018] constituted to look into the allegation of sexual harassment, procedure which they evolve should be in consonance with the rules of natural justice. The submission of Mr.Lodha that assuming though not admitting that sexual harassment allegations can be found to be proved, the punishment of removal from service is not justified in the facts of the case, this court finds that the perusal of Rule 18A of the CCA Rules, 1958 shows that the report of the Committee is to be given to the disciplinary authority, who has to act on the said enquiry report in accordance with the CCA Rules, 1958. Rule 14 of the CCA Rules, 1958 provides different nature of penalties which can be imposed on a Government servant. The disciplinary authority, as per Rule 14 of the Rules, 1958 can impose any of the penalties for good and sufficient reasons. The disciplinary authority has to consider which penalty is to be imposed against a Government servant, if he is found guilty of committing misconduct. This court finds that as per Rule 9 of the Rules, 2013, wherever the service Rules exist and the Complaints Committee arrives at a conclusion that allegation against a person has been proved, it shall recommend to the employer or the District Officer, as the case may be, to take any action

including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the person from service or undergoing a counselling session or carrying out community service. The said Rule 9 of the Rules, 2013 makes an exception in respect of the cases where the service Rules exist and in such cases the service Rules will be applicable for imposing the (43 of 43) [CW-2313/2018] penalty. This court has considered Rule 9 of the Rules, 2013 only for the purpose that termination of service is not the only answer but there are several other action which can be taken if the allegation of sexual harassment is made out on the basis of the report of the Committee. The judgments cited by the learned counsel for the petitioner are in respect of the quantum of punishment, this court has not gone into the question of quantum of punishment and has found the impugned orders being passed in violation of principles of natural justice and as such the court is not considering the case laws which have been cited by the learned counsel. Accordingly, this court finds that the impugned enquiry report dated 27.11.2017 and the punishment order dated 12.03.2018 are illegal and the same are not sustainable in law and the writ petition deserves to be allowed. Consequently, the instant writ petition is allowed and the enquiry report dated 27.11.2017 and the punishment order dated 12.03.2018 are quashed and set aside Sarita Verma v. New Delhi Municipal Corporation & Ors, (2016 LLR 785 (2)) MANMOHAN, J: (Oral)

1. The petitioner, by way of the present writ petition, has challenged the order dated 27th March, 2015 passed by respondent no. 1 whereby conclusive findings given on 21st December, 2012 by respondent no. 2, i.e., "Sexual Harassment Committee" have been ignored by respondent no. 1 and respondent no. 3 has been exonerated. 2. Mr. Sumit Jidani, learned counsel for the petitioner states that respondent no. 1 has passed the impugned order dated 27th March, 2015 after giving 'Benefit of Doubt' to the respondent no. 3 as if he was dealing with a criminal trial and that too, after keeping the file pending for more than three years. He submits that the approach of respondent no. 1 is contrary to the judgment of Supreme Court in Apparel Export Promotion Council Vs. A.K. Chopra, 1999 SCC (L&S) 405 wherein it has been held as under:"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, 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. [(1980) 3 SCC 526 : 1980 SCC (Cri) 815 : AIR 1980 SC 1535] ; Mackinnon Mackenzie and Co. Ltd. v. Audrey D' Costa [(1987) 2 SCC 469 : 1987 SCC (L&S) 100 : JT (1987) 2 SC 34] ; Sheela Barse v. Secy., Children's Aid Society [(1987) 3 SCC 50, 54 : 1987 SCC (Cri) 458] SCC at p. 54; Vishaka v. State of Rajasthan [(1997) 6 SCC 241 : 1997 SCC (Cri) 932 : JT (1997) 7 SC 384] ; People's Union for Civil Liberties v. Union of India [(1997) 3

SCC 433 : 1997 SCC (Cri) 434 : JT (1997) 2 SC 311] and D.K. Basu v. State of W.B. [(1997) 1 SCC 416, 438 : 1997 SCC (Cri) 92] SCC at p. 438.). 27. In cases 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. 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." 3. Mr. Sumit Jidani also states that the hearing and adjudication of the aforesaid matter is urgent as the respondent no. 3 is set to retire on 30th May, 2016 and if the present petition is not adjudicated prior thereto, the writ petition would be rendered infructuous and it would result in serious miscarriage of justice. 4. On the other hand, Mr. Rajiv Bansal, learned counsel for respondentNDMC states that present writ petition is not maintainable as petitioner has an alternate effective remedy by filing a petition before the Central Administrative Tribunal (for short "CAT"). 5. Mr. Bansal states that the order dated 27th March, 2015 has been passed by the Chairperson, NDMC in accord with the CCS Rules. In support of his submission, he relies upon Section 13(3) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and Section 14(3) of the Administrative Tribunal Act, 1985. The relevant portion of the said Sections is reproduced hereinbelow:-

"A) Section 13(3) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:"13. Inquiry report.-xxxx xxxx xxxx xxxx (3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be-(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed; (ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of Section 15: Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman: Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer." B) Section 14(3) of the Administrative Tribunal Act, 1985 :- "14. Jurisdiction, powers and authority of the Central Administrative Tribunal.--

xxxx xxxx xxxx xxxx (3) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court) in relation to-(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation [or society]; and (b) all service matters concerning a person [other than a person referred to in clause (a) or clause (b) of sub- section (1)] appointed to any service or post in connection with the affairs of such local or other authority or corporation [or society] and pertaining to the service of such person in connection with such affairs." 6. Mr. Rajiv Bansal submits that in the present matter, CAT is the Court of first instance and the petitioner cannot approach this Court by way of a writ petition overlooking the jurisdiction of CAT. In support of his submission, he relies upon the Supreme Court judgment in Rajeev Kumar and Another Vs. Hemraj Singh Chauhan and Others, (2010) 4 SCC 554 wherein it has been held as under:"8. This Court is of the view that the understanding of the ratio in L. Chandra Kumar by the learned counsel for the appellants in this case is not correct and the ratio in L. Chandra Kumar is just to the contrary. 9. The Constitution Bench in L. Chandra Kumar held that the power of the High Court under Articles 226 and 227 of the Constitution and of this Court under Article 32 of the Constitution is a part of the basic structure of our

Constitution (see paras 78 and 79, pp. 301 and 302 of the Report). The Constitution Bench also held that various tribunals created under Articles 323-A and 323-B of the Constitution, will function as court of first instance and are subject to the power of judicial review of the High Court under Articles 226 and 227 of the Constitution. The Constitution Bench also held that these tribunals are empowered even to deal with constitutional questions and can also examine the vires of statutory legislation, except the vires of the legislation which creates the particular tribunal. 10. In para 93, at p. 309 of the Report, the Constitution Bench specifically held: (L. Chandra Kumar case [(1997) 3 SCC 261: 1997 SCC (L&S) 577] ) "93. ... We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted." (emphasis added) The Constitution Bench explained the said statement of law by reiterating in the next sentence: (L. Chandra Kumar case [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] , SCC p. 309, para 93) "93. ... By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned" 11. On a proper reading of the abovequoted two sentences, it is clear: (a) The tribunals will function as the only court of first instance in respect of the areas of law for which they have been constituted. (b) Even where any challenge is made to the vires of legislation, excepting the legislation under which tribunal has been set up, in such cases also,

litigants will not be able to directly approach the High Court "overlooking the jurisdiction of the tribunal". 12. The aforesaid propositions have been repeated again by the Constitution Bench (in L. Chandra Kumar case) in the penultimate para 99 at p. 311 of the Report in the following words: "99. ... The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned." 13. In view of such repeated and authoritative pronouncement by the Constitution Bench of this Court, the approach made to the High Court for the first time by these appellants in respect of their service disputes over which CAT has jurisdiction, is not legally sustainable. The Division Bench of the High Court, with great respect, fell into an error by allowing the appellants to treat the High Court as a court of first instance in respect of their service disputes for adjudication of which CAT has been constituted. 14. The grievances of the appellants in this appeal are that they were not made parties in proceedings before the Tribunal. But in the impleadment application filed before the High Court it was not averred by them that they were not aware of the pendency of the proceedings before the Tribunal. Rather from the averments made in the impleadment petition it appears that they were aware of the pendency of the proceedings before the Tribunal. It was therefore, open for them to approach the Tribunal with their grievances. Not having done so, they cannot, in view of the clear law laid down by the

Constitution Bench of this Court in L. Chandra Kumar , approach the High Court and treat it as the court of first instance in respect of their grievances by "overlooking the jurisdiction of the Tribunal". CAT also has the jurisdiction of review under Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987. So, it cannot be said that the appellants were without any remedy." 7. In rejoinder, learned counsel for petitioner states that the matter at hand is not a service matter but has wide compass as the petitioner is seeking enforcement of her fundamental rights as enunciated by the Supreme Court in Vishaka and Others Vs. State of Rajasthan and Others, AIR (1997) SC 3011. 8. Having heard learned counsel for the parties, this Court is of the opinion that the finding of Sexual Harassment Committee could not be ignored by respondent no. 1 on vague and general grounds, as has been done in the impugned order, without any discussion. In fact, the impugned order passed by respondent no. 1 is against the mandate of law as enunciated by the Supreme Court in Medha Kotwal Lele and Others Vs. Union of India and Others, (2013) 1 SCC (CRI) 459 wherein it has been held as under:" 44.1. The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules (by whatever name these Rules are called) shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Services Conduct Rules. In other words, the disciplinary authority shall treat the report/findings, etc. of the Complaints Committee as

the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent." (emphasis supplied) 9. Though this Court is in agreement with the submission of learned counsel for respondent-NDMC that petitioner has an alternate remedy by filing a petition before CAT, yet it is of the opinion that the said remedy is not an effective one in the facts of the present case inasmuch as respondent no. 3 is set to retire on 30th May, 2016. If the petitioner is now relegated to CAT, it is highly unlikely that the matter would be disposed of by the said Tribunal prior to 30th May, 2016. It pertinent to mention that the bar of alternative effective remedy is a self-imposed restraint and not a constitutional bar. 10. Consequently, the present writ petition is allowed and the order dated 27th March, 2015 is set aside. Respondent No. 1 is directed to take a fresh decision within a period of four weeks after giving an opportunity of hearing to the petitioner as well as respondent No. 3. Needless to say that the Respondent No.1 shall take a decision in accordance with the law. The reasoned order shall be communicated to the petitioner and respondent No. 3 by registered AD post. It is clarified that this Court has not expressed any opinion on the merits of the controversy and the rights and contentions of all parties are left open. Sibu v. Air India Limited, ((2016) 2 KLJ 434)

A question regarding the compliance of principles of natural justice has arisen in this writ petition in the context of an enquiry conducted by the Internal Complaints Committee (ICC) constituted under the Sexual Harassment

of

Women

at

Work

Place

(Prevention,

Prohibition

and Redressal) Act, 2013 (hereinafter referred to as `Act 14 of 2013'). 2. In view of the legal question that is involved in this writ petition, this Court is only addressing the legal issue bereft of facts involved. W.P.(C).No.4001/2016 3. The petitioner is working as an Officer-Apron in the Ground Services Department (GSD) of Air India Limited, Thiruvananthapuram. The ICC of Air India Limited, Southern Region received a complaint forwarded by the Airport Director. This complaint alleged to have been raised by 17 lady employees' of Air India-SATS (AI-SATS), a joint venture company of Air India and Singapore Air Transport Services Limited. The Committee conducted an enquiry against the petitioner based on the complaint. The report of the Committee is produced as Ext.P23. The issue in this writ petition is revolved around the validity of the enquiry report, on the ground of non compliance of principles of natural justice.

W.P.(C).No.4001/2016 4. The case of the petitioner is that he was not given any opportunity in the matter and complaint as referred in the ICC is a forged one by some officials of the joint venture company and some of the officers of the Air India to wreck vengeance against the petitioner for having filed a complaint before the Central Bureau of Investigation (CBI). Therefore, the enquiry concluded

without giving an opportunity to the petitioner to cross examine the complainant and to controvert the factual finding in the enquiy report, is vitiated. 5. The stand of the Airport Authority is that the report is a preliminary report to find the involvement of the petitioner in sexual harassment as raised in the complaint. It is contended that when a prima facie case is made out based on the report, further disciplinary action would be initiated as W.P.(C).No.4001/2016 per the Rules and Regulations of the Air India and therefore, the petitioner can defend any action proposed in such proceedings. It is further contended that on account of the secrecy and privacy required in conducting such an enquiry and to give full freedom to the complainant to depose before the Committee, an enquiry was conducted respecting dignity of the complainant and also in a fair manner. The respondents also relied on the Government of India Office Memorandum dated 16.07.2015 to justify the procedure followed in the matter. To sum up the defence of the respondents is that the report now prepared is only a preliminary enquiry report to signal the management to proceed further as against the petitioner for the misconduct based on the sexual harassment. W.P.(C).No.4001/2016 6. As seen from the pleadings and reports, the stand taken up the Air India as well as ICC before this Court is that an enquiry regarding misconduct on sexual harrassment has not attained finality and it can be proved or disproved in the disciplinary proceedings if any initiated by the management based on the report.

7. Act 14 of 2013 was enacted to provide protection against the sexual harassment of women at work place and also for redressal of the complaint of sexual harassment. The preamble of the Act 14 of 2013 is as follows: "An act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto." W.P.(C).No.4001/2016 8. Therefore, the provisions in the Act has to be understood in the light of preamble as above. Section 4 Chapter 2 refers to the constitution of the Internal Committee, the composition of the members is by nomination by the employer. The Presiding Officer of the Committee shall be women employed as senior level at the work place. Section 9 of Chapter 4 provides for procedure of raising complaint by aggrieved women. Any aggrieved women in terms of Section 9 is free to raise complaint in writing before the Committee. Section 11 provides for a manner in which an enquiry has to be conducted based on the complaint. It is appropriate to refer the relevant portion of Section 11 of the Act 14 of 2013 is as follows: "11. Inquiry into complaint (1) Subject to the provisions of Section 10, the Internal Committee or W.P.(C).No.4001/2016 the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case, exist, forward the complaint to the

police, within a period of seven days for registering the case under Section 509 of the Indian Penal Code, and any other relevant provisions of the said Code where applicable:" 9. This would show that if the respondent in the complaint is an employee, the enquiry of the complaint shall be made in accordance with the service rules applicable. Sub section 3 of Section 11 also gives the Committee the same powers vested in a civil court under the Code of Civil Procedure, 1908 in respect of certain matters referred therein W.P.(C).No.4001/2016 like summoning witnesses, discoveries etc. Section 13 in this case is relevant as far as to find the nature of the report prepared now. Section 13 provides as follows: "13. Inquiry report. (1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period often days from the date of completion of the inquiry and such report be made available to the concerned parties. (2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter. W.P.(C).No.4001/2016 (3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be--

(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed; (ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15: Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman: W.P.(C).No.4001/2016 Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer." 10. Section 13 read with Section 11 clearly indicates the enquiry to be concluded under Section 13 is not a preliminary enquiry contended by the respondents but it should be a full fledged enquiry as to the finding of fact. This is so clear from Section 13(3)(i). The enquiry that has to be conducted by ICC in same manner to prove misconduct in disciplinary proceedings as referrable in Service Rules, if no Service Rules exist in such manner, domestic enquiry is conducted. W.P.(C).No.4001/2016

11. The status of the Committee, therefore, deemed to be an Inquiry Committee for disciplinary action under the service rules (See order of the Hon'ble Supreme Court in Medha Kotwal Lele v. Union of India [2013(1) SCC 311]. Thus when the enquiry is concluded, what is left to the discretion of the employer to take action in accordance with service rules for the proven misconduct. If the Central Civil Services (Classification, Control and Appeal) Rules would apply, the starting point of action referred in Section 13(3) of the Act 14/2013 is from the proceedings under Rule 15 of Part IV of the above rules. Thus, the choice left to the employer is to impose penalty in accordance with the service rules on a proven misconduct. If the service rule provides any punishment for such misconduct, the punishment can be W.P.(C).No.4001/2016 imposed based on such findings. 12. The power of the ICC is also very clear from the Section 15 itself. The Committee can also determine the compensation payable by the delinquent to the victim. Thus, it is very clear from Sections 11, 13 and 15, the report of the ICC is the determining factor to take follow up action by the employer in accordance with service rules or otherwise. 13. In the background of legal provisions as above, every Internal Committee constituted under the Act 14 of 2013 necessarily, has to follow the principles of natural justice in conducting their enquiry. The rules framed under the Act 14 of 2013 also would indicate that the Committee shall follow the principles of natural justice [See the Rule 7 (4)]. It is also specifically noted that Section 18 provides an

W.P.(C).No.4001/2016 appellate remedy as against the recommendation. This also would show that the conclusive nature of the finding of the fact in the enquiry to be made by the ICC. Thus, it has to be summed up that the enquiry conducted by the ICC as to the fact finding is final unless it is varied in appeal. It cannot be varied by the employer in a follow up action to be taken in terms of Section 13. 14. Therefore, the next question is, in what manner the principles of natural justice have to be secured in the enquiry conducted in a complaint relating to the sexual harassment. This is a delicate question to be addressed by the Committee itself. The natural justice has got elasticity and would depend upon the context in which it is referred.

W.P.(C).No.4001/2016 15. The Hon'ble Supreme Court in Dev Dutt v. Union of India [2008 (8) SCC 725] observed on principles of natural justice is as follows: "What is natural justice? The rules of natural justice are not codified nor are they unvarying in all situations, rather they are flexible. They may, however, be summarised in one word: fairness. In other words, what they require is fairness by the authority concerned. Of course, what is fair would depend on situation and context." 16. Lord Denning in B. Surinder Singh Kanda v. Government of the Federation of Malaya [1962 AC 322] observed as follows:

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him:

W.P.(C).No.4001/2016 and then he must be given a fair opportunity to correct or contradict them." 17. The fundamental principles relating to the principles of natural justice is that when a prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and contradict. In sexual harassment complaint, sometimes the complainant may not have courage to depose all that has happened to her at the work place. There may be an atmosphere restraining free expression of victim's grievance before the Committee. The privacy and secrecy of such victims' also required to be protected. It is to be noted that verbal cross examination is not the sole criteria to controvert or contradict any statement given by the aggrieved before any authority. Primarily, in a sexual harassment complaint, W.P.(C).No.4001/2016 the committee has to verify and analyse the capability of the aggrieved to depose before them fearlessly without any intimidation. If the Committee is of the view that the aggrieved is a feeble and cannot withstand any cross examination, the Committee can adopt such other measures to ensure that the witnesses statement is contradicted or corrected by the delinquent in other manner. The fair opportunity, therefore, has to be understood in the context of atmosphere of free expression of grievance. If the Committee is of the view that the witness or complainant can freely depose without any fear, certainly, the delinquent can be permitted to have verbal cross examination of such witnesses. In cases, where the Committee is of the view that the complainant is not in a position to express freely, the W.P.(C).No.4001/2016 Committee can adopt such other method permitting the delinquent to contradict and correct either by providing statement to the delinquent and soliciting his objections to such statement.

18. What is reminded here by this Court to the Committee is that a fair opportunity should be given to the delinquent in such manner the Committee think fit to consider. There is no easy and precise rule defining fair opportunity. 19. The Office Memorandum cannot supersede the statutory provisions. The statutory provisions are very clear in what manner this enquiry has to be conducted and concluded. W.P.(C).No.4001/2016 In view of the above, the impugned report is set aside. The ICC is directed to reconsider the matter after giving fullest opportunity to the petitioner. The writ petition is disposed of as above.