proceedings we are called upon to consider whether the National
Commission could be justified in continuing with the proceedings
before it in the facts of the present case. Admittedly, Respondent
No.2 has filed a criminal complaint against some former employees
of the Petitioners against whom she has serious complaints. The
Metropolitan Magistrate's Court is seized of the matter and we have
no reason to doubt that the matter will be heard in accordance with
law. It is not therefore desirable that the matters pending before the
Magistrate's Court be considered by the Commission in parallel
proceedings. The Commission should not take upon itself the task
of deciding upon the merits of the complaint albeit the same being
brought to the Commission's knowledge by Respondent No.2. The commission is however not
empowered to decide the rights of parties and due care must be
taken in this behalf. If the commission proceeds to determine any
such issues there will be parallel enquiries underway which is hardly
desirable. Moreover no purpose will be served by the commission
arriving at findings or granting reliefs or issuing directions since the
commission is not a Court. The Act does not envisage enforcement of
the commission's directions.
Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.146 OF 2014
KPMG India Pvt. Ltd.
Vs.
National Commission for Women
CORAM : V. M. KANADE &
A. K. MENON, JJ.
PRONOUNCED ON : 11th August 2014.
Citation;2015(1)ALLMR726
1. Rule. Rule returnable forthwith.
2. Petitioner No.1 is a private limited company of which
Petitioner No.2 is the Company Secretary. For the sake of
convenience Petitioner no.1 and 2 are referred to as Petitioner.
Respondent No.1 is a statutory body set up under the National
Commission for Women, Act, 1990 and is empowered to deal with
various issues concerning women as set out in the Act. Respondent
No.2 was employed with the Petitioner at all material times and filed
a complaint against the Petitioner no.1 with the Respondent no.1.
3. The Petitioner seeks a Writ of Certiorari to quash the
proceedings initiated by Respondent No.1 - National Commission for
Women (“NCW” / “National Commission”) against Petitioner No.1 –
(“KPMG”) pursuant to the complaint made by Respondent No.2 and
restrain Respondent No.1 from conducting any further proceedings
in the matter.
4. We may now advert to the facts leading upto the filing of
this petition. Respondent No.2 joined the Petitioner company on
19th September 2005 as a Director. For diverse reasons that need
not engage our attention in this petition, Respondent No.2 was
disappointed that she was not designated as a Partner. On or about
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3rd October, 2006 she expressed via email addressed to the Petitioner
that she would consider moving on from the Petitioner company.
Respondent No.2 had in various communications with several of her
superiors conveyed her grievances. It appears that that the
Petitioner also had certain reservations. It is the Petitioners'
contention that it gave Respondent No.2 ample opportunity to
improve her performance but to no avail.
5. As a result on 30th November, 2006, Petitioner No.1
terminated her services and paid her contractual dues and completed
all the formalities. Thereafter vide her Advocate's letter dated 12th
December, 2006 and 16th January, 2007, she called upon the
Petitioner to withdraw her letter of termination and sought a written
apology from the Petitioner.
6. In or around April 2007, four months after termination of
services, she complained that she suffered sexual harassment at the
work place during her tenure with the Petitioner. The aforesaid legal
notices and the communications referred to earlier did not contain
any complaint of sexual harassment during the period of her
employment. On or about 9th April 2007 Respondent no.2 filed a
Complaint before the Maharashtra State Commission for Women.
7. Upon receipt of the complaint, Petitioner No.1 constituted
a committee on or about 8th May, 2007 to look into her complaint in
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accordance with Staff Manual of the Company as per guidelines laid
down by the Supreme Court in case of Vishaka Vs. State of
Rajasthan. The committee comprised of one male member and two
women external members, one of whom would preside over
committee as per the guidelines. One was a sociologist, who was also
senior advisor to the Petitioner, the second Ms. Bhavna Joshi, who
was also an advisor to the Petitioner and the third an expert on
sexual harassment at the workplace. The said Vishaka committee
fixed several dates in order to enable Respondent No.2 to appear
before it. Various alternate dates were reportedly fixed. However,
Respondent No.2 chose not to appear before the committee.
8. Respondent No.2 objected to constitution of the Vishaka
committee and appointment of Ms. Bhavna Joshi and sought
reconstitution of the Vishaka committee and contended that she also
had an equal right to nominate members of the committee. The
Petitioner provided various options viz changing the constitution of
the committee, including former judges and suggested the names of
two former Judges of the Supreme Court i.e. Justice Sujata Manohar
and Justice B. N. Srikrishna. However, Respondent No.2 did not cooperate,
instead she approached the Maharashtra State Commission
for Women (State Commission) through a complaint. On 19th June,
2007 Respondent No.2 filed proceedings before Respondent No.1. A
copy was received by petitioner no.1 on 9th July, 2007. On 16th July
2007 the Respondent No.2 filed a criminal complaint against seven
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employees of the Petitioner under Sections 354, 509, 34 read with
Sections 188, 500, 503 and 506 of the Indian Penal Code. On 9th
August 2007 four of these seven accused persons filed Writ petition
No.1445 of 2007 for quashing the said complaint.
9. The Petitioners by their letters dated 15th June, 2007 and
20th June, 2007 informed Respondent No.2 that it had already
formed a Vishaka committee. The Petitioner challenged proceedings
before the State Commission on the ground of maintainability. On or
about 8th October, 2007 the State Commission formulated the
following issues
“1. To inquire into the complaint as why KPMG did not
constitute an internal complaints committee as per the
Vishaka Guidelines laid down by the Hon'ble Supreme
Court ?
2. If and when the internal complaint committee was
constituted, what was the outcome of the inquiry.
Whether the constitution and deliberation of the
committee was in accordance with the guidelines ?
3. Reasons behind the non-acceptance of Ms. Meenakshi
Maheshwari resignation and later terminating her
services ?”
10. On 3rd December, 2007, the Petitioner was informed by
Respondent No.2 that the State Commission had constituted a
committee to investigate the complaint. The Petitioner once again
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informed the State Commission that a Vishaka committee had already
been constituted and should be allowed to proceed with the inquiry
and that if Respondent No.2 had any objection to any specific
member of Vishaka committee, the Petitioner was willing to appoint
external members instead. Respondent No.2 did not reply.
11. In the meanwhile, in August 2008 without prejudice to its
rights and contentions, Petitioner No.1 participated in a preliminary
hearing before the State Commission. It is the Petitioners' case that
State Commission had pre-judged issues and was not complying with
principles of natural justice. Several of its members had prejudicial
views and had publicly aired them. The Petitioner therefore, filed
Writ Petition No.1107 of 2008 in this court challenging the
proceedings before the State Commission. Respondent No.2 also
filed a Writ Petition No.963 of 2008 seeking directions to the State
Commission to complete the inquiry. On 18th November, 2010 both
the writ petitions came up for hearing. Respondent No.2 withdrew
her petition with liberty to prosecute the complaint pending before
the National Commission. In December 2010, the State Commission
expressed their inability to process the complaint for want of
resources and under these circumstances, Respondent No.2
approached the National Commission and filed the complaint. The
State Commission transferred all records to the National
Commission. Since Respondent No.2 was not pressing the complaint
before the State Commission, Writ Petition No.1107 of 2008 filed by
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Petitioner No.1 came to be dismissed.
12. Three years later, Petitioner No.1 received a letter dated
13th September, 2013 from the National Commission, directing
certain employees and ex-employees to attend before an inquiry
committee of Respondent no.1. The Petitioner sought rescheduling of
the hearing to another date. On 19th September, 2013 it informed the
National Commission that the officers against whom complaints had
been made by the Respondent no.2 were no longer in the employment
of Petitioner No.1. The Petitioners' requests for inspection of
documents filed were ignored.
13. On 18th October, 2013 the Petitioner's Advocate once
again requested the National Commission for the copies and
documents and contended that the matter cannot be heard since
there was no compliance of Rule 10 of Part II of the National
Commission for Women (Procedure) Regulations, 2005. After a lapse
of one month, the Commission permitted the Petitioners’ Advocate to
take inspection of the record and proceedings. That is when they
learnt that many hearings had taken place without notice to the
Petitioners. Minutes of meetings were not provided despite repeated
requests.
14. Based on the complaint made by Respondent No.2,
Respondent No.1 has constituted a three member inquiry committee
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to enquire into the complaint and has allegedly conducted exparte
hearings contrary to its own rules. On or about 26th October, 2013,
the Petitioner learnt that various hearings had been conducted
exparte by Respondent No.1. The Petitioner contends that it was
never notified of any hearing held by Respondent No.1 or the
deposition of Respondent No.2 recorded by Respondent no.1. It is
grievance of Petitioner No.1 that the Minutes of Meeting were not
provided despite repeated requests and Respondent No.1 had failed
to follow procedure laid down under the National Commission for
Women (Procedure) Regulations, 2005 for conducting investigation.
The Petitioners allege violation of principles of natural justice
resulting from refusal to provide copies of the documents to
Petitioner No.1, thereby putting the Petitioner No.1 at a
disadvantage.
15. On 26th October, 2013, Respondent No.1 - Commission
inquired into the complaint made by Respondent No.2 and
framed/reframed terms of reference as follows :
“1. To determine whether Vishaka Guidelines were
followed by original employer (KPMG)
2. Exact nature of sexual harassment and if related
evidence on record is available
3. Reasons of termination of services ?
4. Whether there was unfair dismissal ?
5. Whether the dismissal has caused loss of future
career opportunity ?
6. Whether this Committee can recommend to an
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employee as follows :
– Letter of apology
– Compensation
– Relief – Bonus
– Benefits arising out of this dispute
– Any other reliefs.”
16. The Petitioner questioned the jurisdiction of the
Respondent no.1 to adjudicate upon the complaint on the basis of
these terms of reference were framed on 26th October, 2013 inter
alia on the grounds that ;
(i) Respondent No.2 filed complaint of sexual harassment for
the first time only in April 2007.
(ii) Respondent No.2 had not tendered her resignation prior to
termination of her services,
(iii) Respondent No.2 had not attended before the Vishaka
committee but had filed criminal writ Petition No.1445 of 2007.
(iv) The National Commission had violated principles of
natural justice,
17. According to the Petitioner, the National Commission has
acted in an illegal and arbitrary manner in holding the proceedings
although the Commission is a statutory body which was duty bound to
act in accordance with principles of natural justice and fair play. The
Petitioner has prayed that inquiry proceedings be quashed and
pending hearing and final disposal of the Petition, the inquiry
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proceedings be stayed.
18. Respondent No.1 has filed an affidavit of Raj Singh,
Deputy Secretary wherein it is submitted that the petition is
premature and that the Commission has wide powers to investigate to
complaints by women, if the commission feels that it appropriate to
do so. It is admitted in the affidavit that hearings before the
Commission are not judicial hearings but are investigative in nature
and the Commission follows all rules of natural justice. It is denied
that the investigation into the petitioners' case is beyond its
jurisdiction or it is arbitrary or illegal in any manner.
19. An additional affidavit is also filed on behalf of the
National Commission on 25th March, 2013 wherein the deponent
has made a grievance that the Petitioners are seeking to delay the
proceedings at every stage. It is submitted that the Commission is
adequately empowered to hear the complaints and it proposes to
proceed with the inquiry that it has undertaken.
20. On behalf of Respondent No.2, an affidavit in reply has
been filed on or about 22nd January, 2014 and thereafter written
submissions have also been filed. It is contended that Respondent
No.2 is a qualified C.A. with 15 years’ experience in a senior position
in multinational companies. She has narrated how she complained
about discomfort as a result of behavior by colleagues. Several
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extracts from emails have been reproduced in the affidavit. It is
submitted that no inquiry was conducted as per Vishaka guidelines.
On the other hand on 30.11.2006 she received a communication
from one Sunil Mathur stating that her services have been
terminated. She then filed a complaint in International Ethics
Committee of the Petitioners. The said Committee stated that it has
no jurisdiction. According to Respondent No.2, the company leveled
false allegations against her for holding company property etc.
although she had sent via email to the Human Resources Department
proof of handing over company property despite which the Petitionercompany
had not paid her dues.
21. Respondent No.2 has denied the allegations of the
Petitioner and submitted that Writ Petition No.963 of 2008 came to be
withdrawn with liberty to prosecute the criminal complaint.
Respondent No.2 has set out dates when the alleged incidents took
place. It is alleged that the Petitioners did not provide her with any
reason for termination and they had purported to set up Vishaka
committee only to scuttle the inquiry before the Commission. It is
alleged that the Petitioner company gainfully continued to employ
perpetrators of the offences till 2013 and then they were allowed to
resign despite evidence against them being available with Petitioner
No.1 since it had already filed a Petition in 2008.
22. Respondent No.2 alluded to having suffered cyber
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defamation which has further violated her right to work and live with
dignity. In November 2012 the Chief Metropolitan Magistrate's
Court directed Mumbai police to block the defamatory content on
websites. Respondent No.2 had meanwhile filed a criminal
complaint against the Human Resources Manager, Chief Operating
Officer, Chief Executive Officer and former Director, H. R. of
Petitioner No.1 for having failed to comply with Vishaka guidelines.
The said four persons filed Criminal Writ Petition No.1445 of 2007 in
this court challenging the FIR registered against them. By an order
dated 6th August, 2008, this court was pleased to quash the FIR as no
cognizable offence had been made out. Respondent No.2 then filed
S.L.P. (Cri.) No.7670 of 2008 against the said order which came to be
dismissed while clarifying that the observations made in the
impugned order will not affect the merits of her case.
23. Respondent No.2 has in her affidavit dated 30th April,
2014 and in her written submissions raised a grievance that the
petitioners took advantage of her absence on 23rd April, 2014 and the
Petitioners’ counsel addressed the Court despite Respondent No.2's
application for adjournment. Prior to 23rd April, 2014, the matter had
not been taken up for want of time on several occasions. On 23rd
April, 2014 when the matter was called, the son of the second
Respondent was present and a request was made for adjournment
which was declined in view of the Petitioner's opposition based on a
fact that submissions on behalf of the Petitioner were to be on a point
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of law, namely the jurisdiction of Respondent No.1 to entertain the
second Respondent's complaint.
24. We therefore, proceeded to hear the petitioners' counsel
and counsel for the National Commission – Respondent No.1.
Respondent No.2's son was accordingly informed that only arguments
on a legal issue were being advanced and that Respondent No.2
would be heard on that aspect. We may also observe here that after
23rd April, 2014 the matter was heard on 30th April, 2014 and 8th May,
2014 when Respondent No.2 was present and addressed the Court.
Thus, a full opportunity has been given to her to present her case.
Moreover, Mr. Sen, learned counsel appearing on behalf of the
Commission also addressed the Court in relation to Respondent
No.2's complaint and supported the proceedings before the
commission. The Respondent No.2 was thus not prejudiced on
account of her absence on 23rd April, 2014.
25. Respondent No.2 has provided a list of dates and events
commencing from 19th September, 2005 to 30th April, 2014. The
written submissions also contain cross references to various
documents referred to and annexed to the pleadings. It sets out in
detail the events that have transpired. We have considered the
submissions and the annexures thereto and the list of dates, events,
orders passed by various authorities including complaint dated 11th
February, 2013 addressed to the Chairperson of Respondent No.1
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along with other application. The submissions of Respondent No.2 are
largely on the merits of the case which we are not called to
adjudicate upon. The challenge in the present petition is restricted to
the scope of proceedings before Respondent No.1 and the Petitioner's
contention that Respondent No.1 had been acting illegally and
arbitrarily including by conducting hearing without notice to the
Petitioner and that Respondent No.1 had no power to adjudicate the
claims between the individual parties.
26. Respondent No.2 has contended that Respondent No.1 is
a statutory body, has powers to receive and enquire into complaints
involving deprivation of women's right, non-implementation of laws,
policies and guidelines enacted to protect women and failure on the
part of the Petitioner to constitute internal complaints committee to
prevent and redress sexual harassment at the work place. That
Respondent No.1 is mandated to ensure the implementation of laws,
conduct inquiries into the non-compliance of laws and guidelines.
According to Respondent No.2, the Respondent No.1 has power to
inquire into the complaint of Respondent No.2 to determine whether
the Petitioner has complied with the Vishaka guidelines and under
Regulations 10(c) & (d) of the NCW Act to look into complaints and
take action regarding suppression of women's rights, nonimplementation
of laws and provide protection to women.
27. It is the case of Respondent No.2 that the Petitioner is
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attempting to derail the present inquiry. Various aspects of the
merits of case are dealt with by Respondent No.2. Respondent No.2
has contended that the National Commission has necessary powers
to inquire into individual complaints and therefore submits that the
order dated 27th November, 2013 granting stay of further
proceedings before the National Commission must be vacated.
28. Further rejoinders and sur-rejoinders have been filed by
the parties, however, it is not necessary to deal with each of them to
the extent they are repetitive in nature.
29. It is the case of the Petitioner that the National
Commission for Women, Act, 1990 provides for functions of the
Commission which are to be found in section 10. The functions
include taking up cases of violation of the provisions of the
Constitution and of other laws relating to women with the
appropriate authorities, looking into complaints and take suo moto
notice of matters relating to; deprivation of women's right, nonimplementation
of laws enacted to provide protection to women and
non-compliance of policy decisions, guidelines or instructions and
relief to women.
30. Sub-section 4 of Section 10 empowers the commission
with powers of the Civil Court to try suits for the purpose of
summoning and witnessing examination on oath, requiring the
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discovery and production of any documents, receiving evidence on
affidavits, requisitioning any public record or copy thereof from any
court or office, issuing commissions for recording examination of
witnesses.
31. Ms. Malhotra, learned Senior counsel for the Petitioner
submitted that under section 17 of the Act the Central Government
has been empowered to make rules to carry out the provisions of Act
and in pursuance of section 17, the National Commission for Women
(Procedure) Regulations, 2005 have been enacted wherein the
procedure for dealing with complaints is enlisted in Part 2. In the
said procedural rules item 2 provides that the Commission may
summarily dismiss the complaints if it relates to civil dispute between
the parties, matters which are sub-judice before the court or tribunal
and matters which are outside the preview of the commission on any
other ground. These three categories of matters ought not be
entertained by the commission. In the instant case since criminal
complaints have already been filed and are sub-judice the commission
ought not to have proceeded to entertain the complaint.
32. Ms. Malhotra further submitted that Petitioner No.1 has a
well framed policy for sexual harassment which is as per Staff Manual
and it is available on the website to ensure that the women
employees are protected against sexual harassment at the workplace
and accordingly it is stated that Petitioner No.1 had acted in
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compliance with the judgment of the Supreme Court in Vishaka's
case. While guidelines provided for the employer initiating criminal
proceedings, a criminal complaint had been filed by Respondent No.2
herself against the officers of Petitioner company, who are alleged to
have harassed Respondent No.2. It is submitted that the Petitioner
cannot now take action against these former employees. The
Petitioner had constituted Vishaka committee but Respondent No.2
chose to abstain from meetings convened. It is further submitted that
the issue of constitution of Vishaka committee by Petitioner No.1 has
already been dealt with in the order of this court dated 6th August,
2008 in Criminal Writ Petition no.1445 of 2007 wherein this court
recorded that after termination of service of 30th November, 2006, it
is only on 2nd April, 2007 that Respondent No.2 addressed a letter to
the company making allegations of sexual harassment against three
persons and thereafter committee was constituted to inquire into the
allegations. However, Respondent No.2 has not participated in the
inquiry. In fact during the hearing of Petition No.963 of 2008 and
1107 of 2008 the Petitioner No.1 offered to reconstitute the Vishaka
committee comprising of retired Judges of the Supreme Court and
High Court yet the offer was not accepted by Respondent No.2. It is
submitted that in view of the order passed by a Division Bench of this
Court on 6th August, 2008 there is no question of Petitioner No.1
having failed to follow the Vishaka guidelines.
33. It is further submitted that Respondent No.2 has
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approached various forums, filed criminal proceedings, cyber-crime
complaints including a complaint before the Institute of Chartered
Accountant of India. That the terms of reference dated 26.10.2013
are outside the scope and jurisdiction of National Commission and did
not survive for consideration today. It is further submitted that
National Commission Regulations framed under section 17 have been
violated. The Commission ought to have dismissed the complaint
since the issues raised were subject matter of disputes between the
parties concerned and the matter was sub-judice before the
Magistrate's Court. It is submitted that Commission is suo moto and
arbitrarily expanding the scope of inquiry. The Commission should
not proceed to hear the complaint in view of Regulation 2.5 of
National Commission Regulations. Finally, it is submitted that the
conduct of National Commission was partisan in view of the fact that
it violates principles of natural justice and the inquiry was conducted
on 2.7.2012, 3.8.2013, 7.8.2013 in the presence of Respondent No.2
but without notice to the Petitioner.
34. The Petitioners submit that the National Commission is
not an adjudicatory body and it has only recommendatory powers,
powers to examine all the matters relating to safeguards provided for
women under the Constitution, make in such reports,
recommendations for improving the conditions of women by the
Union or any State, take up case of violation of the provisions of the
Constitution and of other laws relating to women with the
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appropriate authorities. It is for the appropriate authority to look into
complaint and take suo moto action in matters relating to deprivation
of women's rights, by taking up such matters to appropriate
authorities calling for special studies or investigations into specific
problems and recommending strategies for their removal.
35. The Commission is further empowered to undertake
promotional and educational research, advise on the planning
process, evaluate the progress of development of women and make
representations in those respects. The Commission is neither court
nor tribunal with powers to adjudicate and determine rights of the
parties.
36. Ms. Malhotra Ld. Senior Advocate submitted that the
powers of National Commission came up for consideration before the
Supreme Court in Bhabani Prasad Jena Vs. Convenor,
Secretary, Orissa State Commission for Women and Anr. in
2010 (8) SCC 633 wherein it is categorically held that no power or
authority is given to the State Commission to adjudicate or
determine the rights of the parties. Applying the said decision to the
facts of the present case, it is submitted that National Commission
has no power to adjudicate or determine rights of the parties. It is
further urged as set out in case of U.S. Verma, Principal, DPS and
Anr. Vs. National Commission for Women & Ors. (2009) Delhi
Law Times 557 that the reports and recommendations of the
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commission and other statutory bodies entitled to investigate or
inquire into certain category of matters would not bear the character
of “findings” with any evidentiary value. The National Commission is
only a national level body primarily looking into policy, to highlight
them and recommend appropriate measures to the Government
concerned. It cannot look into individual issues unless they pose or
concern a wider policy or legislative structural dilemma.
37. Mr. Sen, learned Counsel for Respondent No.1 submitted
that the Commission was not aware that in the order on 6th August,
2006, in Criminal Writ Petition No.1445 of 2007, there was an
observation that Vishaka committee had been formed by the
Petitioner. The Commission was also unaware that the matter was
carried to the Supreme Court. According to Mr. Sen the points noted
by the Committee are only styled as “terms of reference” but in fact
are only for internal guidance and not terms of reference in the
strictly legal sense. According to Mr. Sen, section 10 specifically
permits the National Commission to entertain complaints. There is no
limitation or restriction on the powers to entertain a private
complaint.
38. It is submitted that in the case of Bhavani Jena (supra) the
Supreme Court has specifically noted competency of the committee
and the power to ascertain facts. The power to entertain a private
complaint is not curtailed by the regulations which fact pre-supposes
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powers to entertain private complaints. Mr. Sen concedes that it
does not have power to determine rights of the parties. It does have
power to address the issues and take them up with relevant
authorities for remedial or cumulative purposes and the constitution
of Vishaka committee by the employer was in addition to the
measures that commission can adopt. It is submitted that committee
is conducting a preliminary inquiry and Petitioner has filed the
Petition in haste.
39. Apropos the “terms of reference”, Mr.Sen submitted that
Items 1 and 2 could be looked into by the commission. Item 3 to 5
according to counsel are consequential. Item 6 in question is for
committee to decide as a recommendatory measure and not for
determination of rights and recommendations. As far as the terms of
reference item 1 and 2 are concerned we have dealt with them
hereafter. It is however not possible to accept Mr. Sen’s submission
qua items 3 to 6.
40. Mr. Sen conceded that the terms of reference cannot be
converted into reliefs to be granted to the complainant. He
submitted that under 3.5.3 and 3.5.5. of Staff Manual, staff members
are supposed to bring to the notice of any Partner without delay in
case an employee encounters such objectionable behavior or an
employee become aware of the colleague being a victim of sexual
harassment. Staff members may speak to the reporting Partner, Staff
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Partner or HRD professionals. The firm must ensure that all such
cases are dealt with sensitively and appropriate action is initiated. He
also relied upon the order passed by this court in Writ Petition
No.963 of 2008 wherein the Petitioner and Respondent No.2 herein
had been granted liberty to adopt such remedy as may be available in
law.
41. Mr.Sen submitted that in the present case reading Section
10(e) and (f) together, it is evident that the National Commission does
have the power to entertain the complaint of Respondent No.2. He
then placed reliance upon the terms of reference of inquiry
committee was produced at paragraph 24 of the affidavit of
Petitioner No.2. He submitted that there was no violation of natural
justice in view of the fact that no final order would have been passed
without hearing all concerned.
42. Respondent No.2 in her submissions has relied upon the
report of the committee on amendment to criminal law wherein
Chapter IV deals with sexual harassment at workplace. However,
since the report is recommendatory in nature, we do not deem it
necessary to consider various recommendations.
43. After this petition was heard and was closed and reserved
for orders on 8th May 2014, attempts were made to persuade the
concerned parties namely the Petitioner and Respondent No.2 to
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explore the possibility of an amicable resolution of the matter. Upon
consent of the parties, the matter was thereafter heard in Chamber
on 13th June, 2014 and 4th July, 2014. In the interregnum,
Respondent No.1 met the Petitioner's CEO in an attempt to find a
mutual acceptable solution. On 4th July, 2014 the parties appeared
before us and Respondent No.2 sought further time since the meeting
had taken place and the parties are still exploring possible modalities
for settlement. The matter was adjourned at the request of parties to
4th August 2014 but was listed on 8th August 2014, when the
Petitioners and Respondent no.2 informed us that no amicable
solution could be found. We have therefore proceeded to pronounce
our judgment.
44. Before proceed to address the larger issues, at the cost of
repetition, we may sum up the sequence of events. The National
Commission first issued notice Petitioner No.1 on 13.1.2013 after
which on 19.9.2013 the Petitioner informed the National Commission
that the officials against whom the harassment complaint was made
are no longer in the service of Petitioner No.1. At the hearing on
26.10.2013 that the commission passed an order, exparte, framing
questionable terms of reference. Meanwhile, the criminal
proceedings were adopted by Respondent No.2 against seven
company executives under the provisions of section 354, 509, 34 r/w
188, 500, 503, 506 of I.P.C. Thereupon the four officials of
Petitioners filed a Petition for quashing the complaint which came to
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be quashed vide order dated 6.8.2008. This court observed in its
order that there was a genuine attempt by Petitioner No.1 to carry
out directions given in Vishaka's case but it did not yield results
since Respondent No.2 failed to co-operate. This court had held
that it found no fault with the Petitioner under the Vishaka judgment.
On 7.11.2010, the Supreme Court dismissed an S.L.P. filed against
the order dated 6.8.2008. Meanwhile the complaint against three
officials Mr.Vikram Utamsingh, Mr. Abizer Diwanji and Mr.Aneesh
Maloo are being proceeded by the Court of Metropolitan Magistrate,
13th Court at Dadar.
45. We have examined the scheme of the National
Commission for Women Act, 1990. Reference to the Statement of
objects and reasons reveals that the Government has decided to set
up a commission for women, and the main task of the commission
shall be to study and monitor all matters relating to the
constitutional and legal safeguards provided for women, to review
the existing legislations and suggest amendments, wherever
necessary. It will also look into the complaints and take suo moto
notice of the cases involving deprivation of the rights of women in
order to provide support, legal or otherwise, to helpless women.
The Commission shall also monitor the proper implementation of all
the legislations made to protect the rights of women so as to enable
them to achieve equality in all spheres of life and equal participation
in the development of the nation.
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46. Chapter III of the Act provides for the functions of the
Commission. The functions of the commission relevant to the
present case are referred below :
Section 10. Functions of the Commission.-
(1) The Commission shall perform all or any of the
following functions, namely:-
(a) investigate and examine all matters relating to
the safeguards provided for women under the
Constitution and other laws;
(b) ….. …... …..
(c) ….. …... …..
(d) ….. …... …..
(e) ….. …... …..
(f) look into complaints and take suo moto notice
of matters relating to-
(i) deprivation of women's rights;
(ii) non-implementation of laws enacted to
provide protection to women and also to
achieve the objective of equality and
development;
(iii) non-compliance of policy decisions,
guidelines or instructions aimed at
mitigating hardships and ensuring welfare
and providing relief to women, and take-up
the issues arising out of such matters with
appropriate authorities;
(2) …. …. ….
(3) …. …. ….
(4) The Commission shall, while investigating any matter
referred to in clause (a) or sub-clause (f) of sub-section (1),
have all the powers of a civil court trying a suit and, in
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particular, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance
of any person from any part of India and
examining him on oath;
(b) requiring the discovery and production of
any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy
thereof from any court or office;
(e) issuing commissions for the examination of
witnesses and documents; and
(f) any other matter which may be prescribed.
47. These are only two sections relevant for our purposes.
Section 10 sub-section (4) empowers the commission with all the
powers of the Civil Court while trying suit in respect of summoning
and enforcing the attendance of any persons and examining them on
oath, require the discovery and production of any document,
receiving evidence on affidavits and/or requisitioning any public
record or copy thereof from any Court or office, issuing
commissions for the examination of witnesses and documents and
any other matter which may be prescribed. It is, however, to be
noted that these powers are circumscribed by the provisions of
clause (a) and sub-section (i) of clause (f) of sub-section 1. In other
words, the powers enlisted above may be exercised by the
commission while investigating and examining all the matters
relating to safeguards for the women under the constitution and the
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laws and to look into complaints and take suo moto notice of matters
relating to (i) deprivation of women rights, (ii) non-implementation of
laws enacted to provide protection to women and achieving the
objective of equality and development; (iii) non-compliance of policy
decisions, guidelines or instructions aimed at mitigating hardships
and ensuring welfare and providing relief to women and no other.
48. The key areas that the commission is empowered to deal
with are safeguards provided to the women under the Constitution of
India and other laws and deprivation of women rights as detailed
above. In respect of other functions the commission does not have all
the powers of a Court.
49. With this background it is to be seen whether the
petitioners' grievance can be looked into by the commission in the
manner it proposes to do via the six terms of reference. We have
noted the submissions of Mr.Sen, the learned counsel for the
commission, who fairly conceded that the so called terms of
reference framed by the commission and which are reproduced in
paragraph above were so framed within the overall framework of the
Act only for internal review. It is therefore appropriate that we deal
with each of these.
50. We have considered the submissions of Respondent No.2
in relation to this challenge and her contention that the proceedings
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were instituted with Respondent No.1 after having exhausted all the
remedies. It will not be out of place to mention that Respondent
No.2 had successfully blocked the blogs placed on the internet by
lodging a complaint before the Metropolitan Magistrate and TV
reports by complaining to the News Broadcaster Standard Authority
(NBSA) who also passed orders in favour of the Petitioner and the
Channel concerned was found to be in breach of the NBSA code of
conduct ethics and guidelines on reporting of cases of sexual assault.
She is presently pursuing the criminal complaint against the alleged
offenders.
51. Given the current state of facts and pendency of multiple
proceedings we are called upon to consider whether the National
Commission could be justified in continuing with the proceedings
before it in the facts of the present case. Admittedly, Respondent
No.2 has filed a criminal complaint against some former employees
of the Petitioners against whom she has serious complaints. The
Metropolitan Magistrate's Court is seized of the matter and we have
no reason to doubt that the matter will be heard in accordance with
law. It is not therefore desirable that the matters pending before the
Magistrate's Court be considered by the Commission in parallel
proceedings. The Commission should not take upon itself the task
of deciding upon the merits of the complaint albeit the same being
brought to the Commission's knowledge by Respondent No.2. The
criminal complaints are proceeding only against ex-employees and
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not against the petitioners. It, therefore, has to be seen as to what
powers of the Commission has qua the Petitioner No.1.
52. As far as, the first point of reference is concerned viz
whether the Visakha guidelines were followed by the petitioners or
not, there cannot be any doubt that the petitioners had formed the
Vishaka committee with notice to Respondent No.2. This court has
held so. It is respondent no.2 who did not appear before the
committee so formed and requested changes to its constitution. Even
then the petitioner was willing to reconstitute the committee but it
did not find favour with the Respondent. While formation of the
committee can be achieved by the unilateral act of the petitioners
attendance before the committee at its proceedings is a consensual
event and without participation of respondent no.2 the committee will
not be able to function and / or able to discharge its function.
53. In the instant case, therefore, it does appear that the
petitioners followed the Vishaka guidelines. In view of this the
National Commission of Women need not inquire into this aspect
which has already been brought out before this court and the
Supreme Court in the proceedings referred to above. No purpose
will be served by the National Commission inquiring into whether or
not the Visakha guidelines were followed by the petitioners.
However, since this point of reference may assume significance in
many other cases and we are of the view that as far as the powers
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and jurisdiction of the commission are concerned, it is well within the
power of the commission to inquire into and determine whether the
Vishaka guidelines were followed by an organization. Although in the
present case the 1st respondent need not look into this aspect in
other cases where the Visakha guidelines were not formed or offered
to be formed by the employers, the commission is empowered to
consider this issue. For that matter, the Commission may entertain
individual complaints to ascertain whether Vishaka guidelines were
followed. Needless to mention such enquiries may not be conducted
ex-parte, without notice to the organisation in question. The basic
rules of natural justice must be followed if the commission finds a
prima facie case. If the commission is inclined to reject the complaint
in limine notice to the organisation need not be issued.
54. As regards the second point of reference viz exact nature
of sexual harassment and evidence in respect thereof, we understand
that these are the matters which are sub judice before the criminal
court and it is appropriate that respondent no.2 adduces evidence
in the court instead of commission looking into the same. That said,
we clarify that the commission will have jurisdiction to inquire into
complaints to arrive ascertain the existence of a prima facie case of
violation but should not proceed to adjudicate upon complaints or
indict respondents or grant specific reliefs. No doubt it may be
necessary for the commission to delve into the facts but it must not
arrive at conclusions or grant reliefs. It may however make
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recommendations on the basis of such facts in the larger interests of
women. If a prima facie case is made out, the commission must issue
notice to the organisation and hear them before making
recommending remedial measures. The commission is however not
empowered to decide the rights of parties and due care must be
taken in this behalf. If the commission proceeds to determine any
such issues there will be parallel enquiries underway which is hardly
desirable. Moreover no purpose will be served by the commission
arriving at findings or granting reliefs or issuing directions since the
commission is not a Court. The Act does not envisage enforcement of
the commission's directions.
55. The remaining points of reference are as follows;
“3. Reasons of termination of services ?
4. Whether there was unfair dismissal ?
5. Whether the dismissal has caused loss of future
career opportunity ?
6. Whether this Committee can recommend to an
employee as follows :
– Letter of apology
– Compensation
– Relief – Bonus
– Benefits arising out of this dispute
– Any other reliefs.”
56. We are of the view that the National commission has no
jurisdiction to deliberate upon or come to any conclusion in relation
to items 3 to 6 above or any of them. All of these items 3 to 6 are
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beyond the scope of the function of the commission as set out in
section 10. If in the course of carrying out the investigation it
observes violation of women's right, the commission may only
recommend measures to prevent a fait accompli to that complainant.
In the present case, therefore, the commission has no jurisdiction to
determine whether or not there was an unfair dismissal or whether
such dismissal has caused loss of future career opportunity. Nor can
the Commission demand a letter of apology, direct payment of
compensation, or grant relief by way of ordering payment of bonus.
Respondent No.2 has already adopted the criminal proceedings for
bringing the alleged offenders to book and the courts before which
such proceedings are brought are expected to try the same.
57. In conclusion, having considered the submissions of the
learned counsel for the parties and having perused the pleadings,
affidavits and relevant documents we are of the opinion that the
terms of reference framed by the Commission will be subsumed by
the following broad issues :
1. Whether the National Commission for women is
entitled to entertain complaints of individuals in relation
to the matters concerning rights of women ?
2. The nature of reliefs the Commission can grant to the
individual complainants, if any ?
58. We are of the view that the Commission is empowered to
look into complaints relating to deprivation of women's rights, non-
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implementation of laws enacted to provide protection to women and
also to achieve the objective of equality and development, noncompliance
of policy decisions, guidelines or instructions aimed at
mitigating hardships and ensuring welfare and provide relief to
women and to take up such issues with appropriate authorities.
However, it does not have unbridled power or authority. The
Commission functions in a recommendatory capacity and is
empowered to take up issues relating to women with the authorities
concerned. It is not an adjudicatory body yet Respondent No.1
complies with the quasi-judicial character of “State” under Article
12 of the Constitution of India.
59. There is no doubt that by virtue of section 10(1)(f) the
commission can look into complaint addressed to it and take suo
moto notice of matters in relation to deprivation of women’s welfare
related policy, decisions, guidelines and instructions. The commission
is also empowered to take up such issues with appropriate
authorities. The powers of the commission while carrying out
investigation in relation to the aforesaid matters including limited
powers of a civil court. However, it does not appear to us that the
provisions of section 10(4) invest the commission with powers of a
civil court with the intention enabling the commission to arrive at the
findings of fact which will bind the parties irretrievably. This can be
inferred from the fact that empowerment of the commission under
section 10(4) is for the purposes listed in section 10(1). The intention
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is that the commission is entitled to act as a guardian of women’s'
rights with a view to ensuring that women’s' rights are protected or
not rendered inaccessible.
60. As regards the second issue, namely, nature of reliefs the
commission can grant to individual complainant we are of the view
that the commission may after investigating the complaint take up
the matters with appropriate authorities including employer or such
other persons whose action or inaction have given rise to such
complaints. We are of the view that the commission is not entitled to
arrive at final conclusions or grant reliefs that a civil or criminal court
can.
61. In the result the petition succeeds. Rule is made absolute
in terms of prayer clause (a). We, however, wish to clarify that
respondent no.2 is at liberty to proceed with its criminal complaints
and cyber-crime complaint pending, if any, without being influenced
by any observation in this order. There will be no order as to costs.
(A. K. MENON, J.) (V. M. KANADE, J.)
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