Introduction
In the case of Akademi Through Its Authorised Representative vs. GNCTD and ors (W.P.(C) 2546/2021 & CM APPLN. 7500/2021), a single bench judge of the Delhi High Court, Justice Sanjeev Sachdeva:
Interpreted the term ‘employer’ under Section 2(g) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, and
Determined the jurisdiction of an Internal Complaint Committee to deal with a sexual harassment complaint against an ‘employer’ in a workplace.
Facts of the case
A woman hailing from one of the north-east states was appointed at the Editor’s post at the Akademi on 26.12.2017 with probation for a period of two years. From March 2014 onwards, the aggrieved woman was facing sexual harassment in the form of inappropriate sexual advances, unwelcome physical and sexual contact, and sexually-coloured remarks from the Secretary of the Akademi along with racist remarks. The Secretary appeared to be vengeful for not getting desired responses to his sexual advances from the aggrieved female employee. Allegations were made by the aggrieved employee that she was subject to certain acts aimed at tarnishing her employment record.
A First Information Report (FIR) was lodged on 07.11.2019 by the woman along with an email to the Executive Board of the Akademi requesting for setting up of an independent committee to enquire into her complaint. The President of the Board who was alleged to have pressurized the woman to withdraw her complaint had referred the complaint to the Internal Complaints Committee. Applying the doctrine of necessity, the President had set up a 2-member Committee to address the complaint. These steps falling inadequate, the aggrieved woman filed a complaint with the Local Committee.
In the meantime, the aggrieved woman was frequently notified by the Internal Complaints Committee to appear before them with her complaint despite of her contention that the committee lacked competency owing to the fact that the Secretary was an ‘employer’ under Section 2(g) of the Act of 2013.
On 16.12.2019, with the Local Committee taking cognizance of the complaint, the woman was granted relief of three months paid leave in accordance to Section 12 (1) of the 2013 Act, and the Secretary was directed to submit his reply. The Committee had also clarified that with respect to the circumstances of the present case, it had competent jurisdiction to adjudicate the same. The President and the Executive Board disregarded the Local Committee’s directions. The aggrieved woman addressed several email reminders regarding compliance of the Local Committee’s directions, however to no avail.
Further, an office memorandum had terminated the woman’s employment at the aforementioned place after reviewing her performance. Such circumstances subsequently led to the filing of a writ petition before the Delhi High Court by the aggrieved woman.
Issues for determination
Whether the Secretary is an ‘employer’ in terms of Section 2(g) of the 2013 Act?
Whether, under Section 6(1) of the 2013 Act, a complaint of sexual harassment against the Secretary could have been filed exclusively to the Local Committee and not to the Internal Complaints Committee?
Whether the Internal Complaints Committee was validly constituted in terms of Section 4 of the Act?
Whether the aggrieved woman made any complaint to the Internal Complaints Committee in terms of Section 9 of the Act?
Contention of the parties
The contentions of the parties to the present case have been provided hereunder.
Arguments advanced by the aggrieved woman employee
The petitioner had contended that the Internal Complaints Committee lacked jurisdiction to investigate her complaint against the Secretary, as it was only the Local Committee who had the authority to take action based on her complaint.
Furthermore, it was argued that terminating the woman’s employment without following the regulations' procedures, particularly in light of the complaint she made against the Secretary, was plainly tainted with mala fides.
Arguments advanced by the employer
According to learned senior counsel for the Akademi, the aggrieved woman was on probation, and after a review of her performance, and in light of the various memoranda issued to her about her performance and lapses, advising her to improve her performance and her failure to do so, a decision was made to terminate her services.
The counsel had submitted that the Secretary was not an employer under Section 2(g) of the Act of 2013 since he was neither the aggrieved woman's appointing authority nor her disciplinary authority. It was the President who was in charge of all offices of Akademi.
The counsel for the respondents had further argued that the writ petition filed by the aggrieved woman is not maintainable, because she has an alternative remedy in the form of an appeal against the Internal Complaints Committee's decision.
Judgment
The Delhi High Court had noted that the respondents’ contention that the doctrine of necessity may be applied, is erroneous. There was no question of using the doctrine of necessity and inducting members of the board of external members since the Secretary is the 'employer,' and the Internal Complaints Committee is not authorized to entertain a complaint against the same. The complaint against the 'employer' shall only be heard by the Local Committee in this regard.
The Hon’ble High Court had also opined that instead of assisting the aggrieved woman in prosecuting her sexual harassment charge, the Akademi had been opposing her tooth and nail and had even terminated her services, awaiting the outcome of the Local Committee's inquiry.
Observations of the Delhi High Court
The Secretary of Akademi was held to be an ‘employer’ under Section 2(g) of the Act of 2013.
The sexual harassment complaint filed against the Secretary would lie before the Local Committee only. The Internal Complaints Committee would not have any jurisdiction to entertain such complaints.
The office memorandum which had terminated the aggrieved woman’s employment at Akademi was quashed and the woman was regarded to continue in service as a probationer, until the completion of the Local Committee's investigation.
Analysis
The material proposition of law that was agreed by the petitioner and denied by the respondents concerned the term ‘employer’ under Section 2(g) of the 2013 Act.
The Delhi High Court had opined that the definition provided by the mentioned provision is an exhaustive one and therefore interpretation of the same cannot be done beyond what the definition encompasses.
The definition includes:
the head of that department, organization, undertaking, establishment, enterprise, institution, office, branch or unit, and
any person responsible for the management, supervision, and control of the workplace.
3. Further, the Akademi’s constitution designates the Secretary as the Principal Executive Officer of the Akademi. Therefore, Secretary does fall under the term ‘employer’.
Conclusion
The discussed case gives us a view of the ineffective application of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 in a workplace. Although the judiciary had diligently stepped in remedying injustice in this case, it is a significant learning for every workplace authority to ensure a proper working environment thereby enforcing the legislative intent behind the Act of 2013.
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