Sexual harassment at work place – Petitioner complained
against her male colleague – Complaint committee found his conduct
as unbecoming but revoked his order of suspension and allowed him
to work in the same place where as petitioner was transferred to Kerala
– Subsequently petitioner’s request to extend her leave was rejected
and she was removed from service – Writ petition filed – Held, action of
O.P.2 is malafide – Order of transfer and order of termination quashed
– O.P.2 directed to re-instate the petitioner with full arrear salary.
2012 ( II ) ILR - CUT- 914
V. GOPALA GOWDA, CJ & B.N.MAHAPATRA, J.
W.P.(C) NO. 13120 OF 2009 (Dt.31.07.2012)
SHANTILATA PATTANAIK ……..Petitioner
.Vrs.
M/S. SWAMINATHAN RESEARCH
FOUNDATION & ANR. ……..Opp.Parties
CONSTITUTION OF INDIA, 1950 – ART.14, 21.
Sexual harassment at work place – Petitioner complained
against her male colleague – Complaint committee found his conduct
as unbecoming but revoked his order of suspension and allowed him
to work in the same place where as petitioner was transferred to Kerala
– Subsequently petitioner’s request to extend her leave was rejected
and she was removed from service – Writ petition filed – Held, action of
O.P.2 is malafide – Order of transfer and order of termination quashed
– O.P.2 directed to re-instate the petitioner with full arrear salary.
(Para 16,17,18)
Case law Relied on:-
(2005)8 SCC 314 : (Srikantha S.M. -V-Bharath Earth Movers Ltd.).
Case laws Referred to:-
1.AIR 1997 SC 3011 : (Vishaka-V-State of Rajasthan)
2.AIR 1999 SC 625 : (Apparel Export Promotion Council-V-A.K.Chopra)
3.AIR 1999 SC 753 : (U.P. State Co-operative Land Development Bank
Ltd.-V- Chandra Bhan Dubey & Ors.).
B.N.MAHAPATRA,J. In this writ petition the petitioner has prayed for
quashing of the order of termination dated 12.08.2008 (Annexure-8) issued
by opposite party No.2-Executive Director, M/s. Swaminathan Research
Institute, Chennai and for a direction to the opposite parties to pay all her
service benefits.
2. Petitioner’s case in a nut shell is that she joined the office of opposite
party No.1-M/s Swaminathan Research Foundation, represented by its
Chairman, AT: 3
rd
Cross Street, Paramani Institutional Area, Chennai (for
short, ‘the Foundation’) on 01.12.2005 as a Genetic Literacy Programme
Facilitator in its Jeypore Office, Odisha. Opposite party No.1 being a
Research Foundation is an autonomous non-profiting trust registered in the
year 1988 at Delhi. Its aim and objective is to organize research and training
to promote a job-led economic growth strategy in rural area. The Foundation
is recognized as a Post Graduate Research Centre by the University of
Madras, Anna University, Chennai and the Osmania University, Hyderabad
since 1990. It is getting grant from Government of India and State of Tamil
Nadu including many other international funding agencies. Being satisfied
with the performance of the petitioner, she was reappointed as a Research
Fellow and posted as a Scientist in the project, namely, Quantitative
Assessment and Mapping of Plant Resources of Eastern Ghats. While
working as such on 12.12.2007, when she went to the library for returning
the books issued to her, one Mr.Nihar Ranjan Parida, Technical Assistant of
Project Medicinal Plants closed the door and sexually molested her. She
was not expecting such behaviour from him and was unable to decide what
to do. However, she was able to escape from his clutches and ran outside
the room. Thereafter, with a heavy heart she returned to her house and
decided to complain the matter to opposite Party No.2-Executive Director of
opposite party No.1-Foundation and accordingly sent the complaint through
email dated 13.012.2007.
3. On 14.12.2007, through email she got the reply from the opposite
party regarding receipt of her complaint and in the said letter she was
requested to go to Chennai for about 10 days so as to enable him to know
about the matter in detail and to finalize the procedure for further action.
Petitioner had also received a letter from the Executive Director asking her to
come over to Chennai immediately on duty; she was also assured in the said
letter that her complaint will be dealt with promptly and seriously. As directed
by opposite party No.2, the petitioner went to Chennai on 16.12.2007. She
was not allowed to come to Jeypore and directed to stay there. A complaint
committee was constituted and the proceeding was conducted on
07.02.2008 at Chennai. In course of hearing of the proceeding, she was
informed by the Committee that the person against whom she had
complained had also made a complaint against her. But the petitioner had
neither been provided with a copy of the complaint nor she was allowed to
see the same. The petitioner also requested the Complaint Committee for
permission to take assistance of a lawyer to conduct the proceeding which
was refused. In course of the proceeding she was harassed by the
Committee members by putting her humiliating questions. Therefore, she
wrote a letter dated 09.02.2008 addressing to the Executive Director of 916
opposite party No.1 Institution stating therein about the manner in which the
proceeding was conducted and the way she was humiliated. Finally, the
Committee disposed of the complaint on 14.05.2008 by giving a finding that
the conduct of Mr.Nihar Ranjan Parida was unbecoming but the complaint
made against Saujundra Swain was not found to be proved.
4. Before passing of the final order on 14.05.2008, the petitioner was
transferred on 05.04.2008 from Biju Pattanaik Medical Plant Garden,
Jeypore to Community Agro-Bio-Diversity Centre, Kalpata, Kerala which was
communicated to the petitioner vide letter dated 07.04.2008. On receipt of
the said letter dated 07.04.2008, the petitioner requested the opposite
parties to grant leave from 05.04.2008 to 09.04.2008 stating therein about
her personal problem for which she was not in a position to join in Kerala
immediately. Further case of the petitioner is that accused persons, namely,
Sri Swain and Sri Parida, who were suspended soon after lodging of the
complaint, were reinstated in service with all financial benefits at Jeypore
and the petitioner was transferred from Jeypore to Kerala. In order to
overcome the trauma and frustration, she requested to extend her leave so
as to enable her to join at Kerala. But vide letter dated 14.05.2008 she was
intimated about rejection of her request for further extension of leave period
and was also warned that unless she joined within seven days, disciplinary
action for termination of her from service will be initiated. Thereafter, vide
letter dated 12.08.2008 her service was terminated. After this incident, her
father had developed heart problem and her brothers and sisters have also
been harassed in the locality being instigated by the two accused persons
who are involved in the case. She had complained this matter in the local
Police Station, Jeypore on 02.06.2008 requesting the Police for protection of
their life and property.
5. On receipt of the order of termination, she sent several letters to the
opposite party to pay her legitimate dues but there was no response. On
09.01.2009, she sent a notice through her Advocate to the opposite party
stating therein to pay her service benefits amounting to Rs.1,87,600/- and
since the same did not yield any result, she has filed this writ petition.
6. Mrs. Sujata Jena submitted that after filing of the complaint, she was
not only harassed but also humiliated in the office as well as in the locality
where she is staying at the instance of accused persons who also belonged
to the same locality. Despite the specific guidelines formulated in the case of
Vishaka Vs. State of Rajasthan, reported in AIR 1997 SC 3011 and
subsequent decision in Apparel Export Promotion Council v. A.K.
Chopra, AIR 1999 SC 625, opposite parties had not constituted prop
committee to deal with the complaint of sexual harassment to women at
work place till 2008. After filing of the complaint her case was conducted at
Chennai in stead of Jeypore where the occurrence took place. The petitioner
also has been physically and mentally harassed by the opposite parties in
transferring her from Koraput to Kerala. The opposite parties instead of
solving her problem further harassed the petitioner, who is an unmarried girl
belonging to low economic class of the society. Thus, the petitioner had
been deprived of her right to work and earn her livelihood with dignity
guaranteed under Article 21 of the Constitution of India. The action of
opposite parties not allowing the petitioner to take help of the lawyer and
terminating her service is not legal and valid.
7. Placing reliance on the judgment of the Hon’ble Supreme Court in the
case of U.P. State Co-operative Land Development Bank Ltd. v. Chandra
Bhan Dubey and others, reported in AIR 1999 SC 753 Mrs. Jena submitted
that the opposite parties are amenable to the writ jurisdiction of this Court
under Article 226 of the Constitution of India.
8. Mr. L.Samantray, learned counsel appearing for the opposite party
Nos.1 and 2, submitted that the opposite party Foundation Trust was
founded on 17.05.1988 and the Trust Deed was executed at New Delhi. As
per clause-11(v) of the aims and objectives of the Trust, the power vests
with it to appoint and at its direction remove or suspend officers, clerks,
servants and then employees for the purpose of carrying out the objects of
the Trust and from time to time determine their powers and duties and to fix
their salary and other emoluments. As per the appointment letter dated
12.06.2007, the petitioner and one Kartik Charan Lenka were appointed as
Scientist as per the selection made by the Selection Committee meeting held
on 31.05.2007. In the said appointment letter it was stipulated that the
appointment shall be for a period of one year and will be countermanded
with the project. They shall be paid a consolidated amount of Rs.8,000/- per
month and will not be eligible for any other monetary benefits. As per the
terms of appointment, both the petitioner and Kartik Charan Lenka, who
belonged to the same cadre were paid Rs.8,000/- per month as would be
clear from copies of pay slip for the months of September, 2007 and
October, 2007. As per the Notification No.2010/IFD/Dir(F)/Misc./12 dated
09.07.2010, the Government of India in the Ministry of Science and
Technology issued revised guidelines for emoluments and other service
conditions for research personnel employed in R and D programmes of the
Central Government Department/agencies. As per the said Notification one
has to possess NET or GATE qualification to claim the revised emoluments.
In the present case, the petitioner has only M.Sc. qualification. It was further
submitted that as per the advertisements made by different Government
Organizations and Universities for research fellows the qualification of NET
or GATE is mandatory for getting the revised emoluments. Therefore, the
petitioner is not entitled to get the revised scale of pay as claimed by her.
Mr.Samantray also submitted for dismissal of the writ petition.
9. On the rival contentions raised by the parties, the following questions
fall for consideration by this Court.
(i) Whether the order dated 18.08.2008 terminating service of the
petitioner is legal and valid?
(ii) Whether the petitioner is entitled to get the revised scale of pay, as
claimed by her?
10. Question No.1 is with regard to the legality of the termination order
18.08.2008. Undisputedly, the petitioner while working in the organization of
the opposite parties complained before opposite party No.2 through e-mail
on 13.12.2007 stating therein that on 12.12.2007 when she went to the
library to return the books issued to her, one Mr.Nihar Ranjan Parida,
Technical Assistant of Project Medicinal Plants closed the door and sexually
molested her. She was not expecting such behaviour from him. However,
she was able to escape from his clutches and ran outside the room. In the
said letter she requested to take necessary action in the matter. On receiving
such complaint vide letter dated 24.12.2007 the petitioner was asked to go to
Chennai for ten days for a personal hearing and finalization of the procedure
for further action. Another e-mail letter of even date was sent to the petitioner
asking her to come over to Chennai immediately on duty. She was also
intimated to come prepared to stay at the headquarters in Chennai to give
assistance in a library related project which was to be completed
immediately.
11. Now the question arises as to whether this action of opposite party is
desirable and permissible when an unmarried girl in an establishment is
sexually harassed by a male colleague in Jeypore, Odisha. The petitioner,
who belongs to the State of Odisha, on complaint of sexual harassment
immediately was asked to come to Channei on duty and work there. The
action of the opposite party amounts to arbitrary and unreasonable. It is also
not disputed that a Complaint Committee had been constituted and the
proceeding was conducted on 07.02.2008 at Chennai and while the
proceeding was pending, the petitioner was transferred on 05.04.2008 from
Biju Pattanaik Medical Plant Garden, Jeypore to Community Agro-BioDiversity Centre, Kalpata, Kerala which was communicated to the petitioner
vide letter dated 07.04.2008 issued by opposite party No.2. The sequence of
events shows that immediately after the petitioner sent the complaint of
sexual harassment opposite party No.2 asked her to go to Chennai and
thereafter during pendency of proceeding transferred her to Kerala. This
action of opposite party No.2 itself shows his mala fide intention and such
action is totally detrimental to the interest of the petitioner, the victim lady.
12. The Hon’ble Supreme Court in Vishaka’s case (supra) suggested
some guidelines which are reproduced below:-
“16. In view of the above, and the absence of enacted law to
provide for the effective enforcement of the basic human right of
gender equality and guarantee against sexual harassment and
abuse, more particularly against sexual harassment at work places,
we lay down the guidelines and norms specified hereinafter for due
observance at all work places or other institutions, until a legislation
is enacted for the purpose. This is done in exercise of the power
available under Art. 32 of the Constitution for enforcement of the
fundamental rights and it is further emphasised that this would be
treated as the law declared by this Court under Art. 141 of the
Constitution.
The guidelines and norms pre-scribed herein are as under:-
Having regard to the definition of 'human rights' in S. 2(d) of
the Protection of Human Rights Act, 1993, Taking note of the fact
that the present civil and penal laws in India do not adequately
provide for specific protection of women from sexual harassment in
work places and that enactment of such legislation will take
considerable time. It is necessary and expedient for employers in
work places as well as other responsible persons or institutions to
observe certain guidelines to ensure the prevention of sexual
harassment of women:
1. Duty of the Employer or other responsible persons in work places
and other institutions:
It shall be the duty of the employer or other responsible persons in work
places or other institutions to prevent or deter the commission of acts of
sexual harassment and to provide the procedures for the resolution,
settlement or prosecution of acts of sexual harassment by taking all steps
required.
2. Definition :
For this purpose, sexual harassment includes such unwelcome sexually
determined behaviour (whether directly or by implication) as :
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal conduct of
sexual nature.
Where any of these acts is committed in circumstances
whereunder the victim of such conduct has a reasonable
apprehension that in relation to the victim's employment or work
whether she is drawing salary, or honorarium or voluntary, whether
in Government, public or private enterprise such conduct can be
humiliating and may constitute a health and safety problem. It is
discriminatory for instance when the woman has reasonable grounds
to believe that her objection would disadvantage her in connection
with her employment or work including recruiting or promotion or
when it creates a hostile work environment. Adverse consequences
might be visited if the victim does not consent to the conduct in
question or raises any objection thereto.
3. Preventive Steps :
All employers or persons in charge of work place whether in the
public or private sector should take appropriate steps to prevent
sexual harassment. Without prejudice to the generality of this
obligation they should take the followiwing steps:
(a) Express prohibition of sexual harassment as defined above at the
work place should be notified, published and circulated in
appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies
relating to conduct and discipline should include rules/regulations
prohibiting sexual harassment and provide for appropriate penalties
in such rules against the offender.
(c) As regards private employers steps should be taken to include
the aforesaid prohibitions in the standing orders under the Industrial
Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of
work, leisure, health and hygiene to further ensure that there is no
hostile environment towards women at work places and no
employee woman should have reasonable grounds to believe that
she is disadvantaged in connection with her employment.
4. Criminal Proceedings :
Where such conduct amounts to a specific offence under the Indian
Penal Code or under any other law, the employer shall initiate
appropriate action in accordance with law by making a complaint
with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not
victimized or discriminated against while dealing with complaints of
sexual harassment. The victims of sexual harassment should have
the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action:
Where such conduct amounts to misconduct in employment as
defined by the relevant service rules, appropriate disciplinary action
should be initiated by the employer in accordance with those rules.
6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under
law or a breach of the service rules, an appropriate complaint
mechanism should be created in the employer's organization for
redress of the complaint made by the victim. Such complaint
mechanism should ensure time bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should
be adequate to provide, where necessary, a Complaints Committee,
a special counsellor or other support service, including the
maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not
less than half of its member should be women. Further, to prevent
the possibility of any undue pressure or influence from senior levels,
such Complaints Committee should involve a third party, either NGO
or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the
Government department concerned of the complaints and action
taken by them.
The employers and person in charge will also report on the
compliance with the aforesaid guidelines including on the reports of
the Complaints Committee to the Government department.
8. Workers' Initiative :
Employees should be allowed to raise issues of sexual harassment
at workers' meeting and in other appropriate forum and it should be
affirmatively discussed in Employer-Employee Meetings.
9. Awareness :
Awareness of the rights of female employees in this regard should
be created in particular by prominently notifying the guidelines (and
appropriate legislation when enacted on the subject) in a suitable
manner.
10. Third Party Harassment :
Where sexual harassment occurs as a result of an act or omission
by any third party or outsider, the employer and person in charge will
take all steps necessary and reasonable to assist the affected
person in terms of support and preventive action.
11. The Central/State Governments are requested to consider
adopting suitable measures including legislation to ensure that the
guidelines laid down by this order are also observed by the
employers in Private Sector.
12. These guidelines will not prejudice any rights available under the
Protection of Human Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be
strictly observed in all work places for the preservation and
enforcement of the right to gender equality of the working women.
These directions would be binding and enforceable in law until
suitable legislation is enacted to occupy the field. These Writ
Petitions are disposed of, accordingly.
Order accordingly.”
13. It is also not in dispute that the Complaint Committee gave a finding
that the conduct of Mr.Nihar Ranjan Parida was unbecoming but the
complaint made against Saujundra Swain was not found to be proved.
Despite such finding, the suspension order passed against Mr.Parida was
revoked and he was allowed to work in Biju Pattanaik Medical Plant Garden,
Jeypore whereas the victim-girl was transferred to Kerala. It is important to
mention here that the petitioner victim girl has never requested the opposite
parties to transfer her from Jeypore, Odisha either to Chennai or Kerala.
Thus, action of the opposite party clearly reveals that the guidelines of the
Hon’ble Supreme Court in Vishaka’s case (supra) have not been followed.
Further, the request of the petitioner to extend the leave was rejected
arbitrarily by the opposite parties and she was removed from her service
vide order dated 18.08.2008. The guidelines and the norms prescribed in
Vishaka’s case (supra) have not been implemented by the organization of
opposite parties. This is certainly unfortunate. The entire episode shows how
opposite party No.2 has acted illegally and contrary to the
guidelines/suggestions laid down in Vishaka’s case supra.
In view of the above, we have no hesitation to hold that the service of
the petitioner has been illegally terminated by the opposite parties vide their
order of termination dated 18.08.2008, which is liable to be quashed.
14. The second question is with regard to payment of the petitioner’s
salary as per the revised scale of pay. Petitioner’s specific case is that the
employees similarly situated in similar posts doing similar nature of work
were paid higher salary than the petitioner. To illustrate, the petitioner has
brought to the notice of this Court the cases of two employees, namely Kartik
Charan Lenka and Manjulaxmi A.S. Opposite party No.2 has filed counter
affidavit annexing therein the salary particulars of Sri Lenka and Ms.
Manjulaxmi A.S.. As per Anenxure F/2 series annexed to the affidavit of
opposite party No.2, Sri Lenka during the period 01.04.2010 to 31.03.2011
was paid basic salary of Rs.13,000/-. From October, 2010 to December,
2010 and from January, 2011 to March, 2011 he was paid basic salary of
Rs.18,000/-. Ms. Manjulaxmi was paid basic salary of Rs.13,000/- from April
2010 to 31
st
March, 2011. Mr. Lenka was paid basic salary for the period
from 01.04.2009 to 31.03.2010 (@ Rs.12,000/- from April-June, 2009 and
@Rs. 13,000/- from July, 2009 to March, 2011). Ms . Manjulaxmi was paid
Rs.12,000/- for the period from April, 2009 to June, 2009 and from July,
2009 to March, 2010 she was paid basic salary of Rs.13,000/-. Mr. Kartik
Charan Lenka for the period 01.04.2008 to 31
st
March, 2009 was paid with
the basic salary of Rs.8,000/- per month from April, 2008 to July, 2008 and
Rs.12,000/- per month from August, 2008 to March, 2008. Ms Manjulaxmi
was getting Rs.8,000/- as basic salary for the period April, 2008 to July, 2008
and Rs.12,000/- for the period August, 2008 to March, 2009. Mr.Lenka was
paid basic salary of Rs.6,500/- for the period April, 2007 to July, 2007 and
Rs.8,000/- from August 2008 to March, 2009. Similarly Ms. Manjulaxmi was
paid Rs. 6,500/- in August, 2007 and from September, 2007 to March, 2008
she was paid Rs.8,000/- per month.
15. The transfer order as well as the termination order is not bona fide.
This is not at all expected from an employer and this will break down the
moral courage of other women employees in the institution, which will
ultimately culminate in unsatisfactory performance.
16. The petitioner has never expressed her unwillingness to work in the
organization. In the peculiar circumstance of sexual harassment, she only
sought for leave but her service was terminated for no fault of her. Therefore,
she is entitled to get all her arrears of salary and other emoluments including
increments and other pecuniary benefits as the opposite party No.2 has
arbitrarily terminated her service on account of which she has been forced to
remain unemployed.
Our above view gets support from the decision of the Hon’ble
Supreme Court in Srikantha S.M.V.Bharath Earth Movers Ltd, (2005) 8
SCC 314, wherein it is held as under:-
“The next question is, as to what benefits the appellant is entitled
to. As he withdrew the resignation and yet he was not allowed to work, he
is entitled to all consequential benefits. The learned counsel for the
respondent Company no doubt contended that after 15.01.1993, the
appellant had not actually worked and therefore, even if this Court holds
that the action of the respondent Company was not in consonance with
law, at the most, the appellant might be entitled to other benefits except
the salary which should have been paid to him. According to the counsel,
the principle of “no work, no pay” would apply and when the appellant
has admittedly not worked, he cannot claim salary for the said period.
29. We must frankly admit that we are unable to uphold the contention of
the respondent Company. A similar situation had arisen in J.N.Srivastava
and a similar argument was advanced by the employer. The Court,
however, negatived the argument observing that when the workman was
willing to work but the employer did not allow him to work, it would not be
open to the employer to deny monetary benefits to the workman who
was not permitted to discharge his duties. Accordingly, the benefits were
granted to him. In Shambhu Murari Sinha II also, this Court held that
since the relationship of employer and employee continued till the
employee attained the age of superannuation he would be entitled to “full
salary and allowances” of the entire period he was kept out of service. In Balram Gupta in spite of specific provision precluding the government
servant from withdrawing notice of retirement, this Court granted all
consequential benefits to him. The appellant is, therefore, entitled to
salary and other benefits.”
It is not the case of opposite parties that the petitioner engaged
herself in any gainful employment after termination of her service.
17. Since the opposite parties in their affidavit admitted that the petitioner
and one Kartika Charan Lenka were appointed as Scientists as per the
selection made by Selection Committee held on 31.05.2007 the petitioner is
entitled to get salary at par with Mr.Lenka.
18. In the result, we allow the writ petition, quash the impugned order
dated 12.08.2008 (Annexure-8) terminating the service of the petitioner and
direct the opposite parties to reinstate the petitioner with full salary and other
service benefits within six weeks from the date of receipt of a copy of this
order. We further direct that she must be paid arrears of salary at par with
Mr. Kartik Charan Lenka from the date of termination to date within a period
of eight weeks from today.
Writ petition allowed.
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