Union of India Citation v Banani Chattopadhyay

Union of India Citation v Banani Chattopadhyay - (2022) 1 HCC (Cal) 351 Court – High Court of Calcutta.

Facts of the Case –

The petitioner, Banani Chattopadhyay, was a Deputy Manager at Hindustan Cables Ltd. (HCL). She opted for voluntary retirement on 31.01.2017 following a decision to close down the company. After retirement, she was engaged on a temporary basis as a consultant and later as an advisor. She was released from her temporary engagement on 30.04.2018. on 09.05.2018, she lodged a complaint of sexual harassment against Respondent 9 (allegedly the head of HCL), claiming the incidents began in the last quarter of 2016. An Internal Complaints Committee was constituted to investigate her complaint. The ICC submitted its report on 19.06.2018, concluding that the allegations were not proved. The petitioner filed a write petition challenging the ICC’s report and constitution.

Legal Issues:-

1. Whether the Internal Complaints Committee had jurisdiction to inquire into the complaint, or if it should have been referred to the Local Committee.

2. Whether the Internal Complaints Committee was properly constituted as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 .

Caselaw in focus

3. Whether the principles of natural justice were followed in the inquiry process. 

4. Whether the court can issue a writ of mandamus to reinstate the petitioner to her temporary advisory position.

Plaintiff’s Arguments:-

1. The petitioner argued that Respondent 9, being the head of HCL, was the “employer” according to the Act and therefore only the Local Committee had jurisdiction to inquire into the complaint.

2. The petitioner claimed that the Internal Complaints Committee was not constituted in accordance with Section 4(2) of the Act.

3. The petitioner alleged that the IC members were biased and not impartial due to Respondent 9’s high position in the company.

4. The petitioner argued that the principles of natural justice were violated as the petitioner did not get sufficient opportunity to prove her allegations.

Defendant’s Arguments:-

1. The respondent claimed that the writ petition had become infructuous as Respondent 9 had since retired.

2. The respondent argued that the writ petition in not maintainable, as an appeal under Section 18 of the Act lies against the recommendations of the IC.

Caselaw in focus

3. The respondent argued that HCL is a public sector enterprise managed by the Board of Directors so Respondent 9 cannot be considered the “employer” under the Act.

4. The respondent claimed that the IC was properly constituted and conducted the inquiry fairly.

Judgement Held –

The court dismissed the writ petition and held that the Board of Directors, not Respondent 9, was the “employer” under the Act. The court had held that the ICC was properly constituted and had the jurisdiction to inquire into the complaint. Further the court held that there was no violation of principles of natural justice as the petitioner was given sufficient opportunities to present her case. Lastly, the court held that it cannot issue a writ of mandamus to reinstate the petitioner to her temporary advisory position. 

Legal Principles Established:-

1. In a public sector enterprise managed by a Board of Directors, the Board is considered the “employer” under the SHWW Act, 2013.

2. The ICC has jurisdiction to inquire into sexual harassment complaints against high ranking officials who were not considered the “employer” under the Act.

3. Section 4(2) of the Act, which provides the composition of the ICC, does not required the members to be of a rank higher than the respondent in the complaint.

4. A writ of mandamus cannot be issued to reinstate an employee to a temporary position that was contractual in nature.

Vishaka & Others v. State of Rajasthan: The Case that Paved the Way for Addressing Sexual Harassment at Workplaces

In a monumental step towards safeguarding the rights and dignity of women in the workplace, the Supreme Court of India delivered a groundbreaking judgment in the case of Vishaka & Others v. State of Rajasthan in 1997. This landmark decision not only brought the issue of sexual harassment at the workplace into the spotlight but also laid down a comprehensive set of guidelines, known as the Vishaka Guidelines, that would serve as the foundation for future legislation addressing this critical issue.

The Genesis: Seeking Justice for Bhanwari Devi

The case originated from the brutal gang-rape of Bhanwari Devi, a social worker employed in Rajasthan's Bhateri village. Devi's courageous efforts to prevent a child marriage within the community led to her being brutally assaulted and raped by influential members of the village. This horrific incident sparked a nationwide outcry and prompted several women's rights organizations, led by Vishaka and others, to file a Public Interest Litigation (PIL) in the Supreme Court.

Filling the Legislative Vacuum

At the time, India lacked a comprehensive legal framework to address sexual harassment at the workplace. The Supreme Court recognized this legislative vacuum and took the unprecedented step of formulating guidelines to fill the gap. These guidelines, known as the Vishaka Guidelines, were derived from the principles of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to which India is a signatory.

The Vishaka Guidelines: A Comprehensive Framework

The Vishaka Guidelines provided a comprehensive definition of sexual harassment, encompassing both physical and non-physical forms of harassment, including sexually colored remarks, gestures, and unwanted sexual overtures. The guidelines also outlined specific measures for employers to prevent and address incidents of sexual harassment in the workplace.

Key Provisions of the Vishaka Guidelines:

Duty of the Employer: Employers were mandated to take appropriate measures to prevent sexual harassment and provide a safe and secure work environment for women.

Establishment of Complaints Committees: Employers were required to establish Complaints Committees to address complaints of sexual harassment and ensure a fair and impartial inquiry process.

Disciplinary Action: The guidelines specified that appropriate disciplinary action should be taken against any employee found guilty of sexual harassment, including termination of employment.

Awareness and Sensitization: Employers were directed to organize workshops and awareness programs to sensitize employees about the issue of sexual harassment and the guidelines.

Third-Party Harassment: The guidelines extended protection to women employees from sexual harassment by third parties, such as clients or customers, within the workplace premises.

The Lasting Impact of the Vishaka Guidelines

The Vishaka Guidelines were not merely a set of recommendations; they carried the force of law and were binding on all employers in India. These guidelines paved the way for a shift in societal attitudes towards sexual harassment and empowered women to voice their concerns and seek redress.

The Legacy: The Prevention of Sexual Harassment (POSH) Act, 2013

While the Vishaka Guidelines were a significant step forward, the need for a comprehensive legislation addressing sexual harassment at the workplace became increasingly apparent. In 2013, the Indian Parliament enacted the Prevention of Sexual Harassment (POSH) Act, which drew heavily from the principles and provisions outlined in the Vishaka Guidelines.

The POSH Act formalized and expanded upon the guidelines, providing a statutory framework for addressing sexual harassment in the workplace. It mandated the constitution of Internal Complaints Committees (ICCs) in every organization, established clear procedures for filing and investigating complaints, and prescribed penalties for non-compliance.

The legacy of the Vishaka case cannot be overstated. It not only brought about a paradigm shift in the legal landscape but also sparked a nationwide conversation about the importance of creating safe and inclusive workplaces for women. The Vishaka Guidelines remain a testament to the Supreme Court's commitment to upholding the fundamental rights and dignity of women, paving the way for a more equitable and just society.

PoSH in Higher Education Institutions in India

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On July 25, 2022, an Odisha college student accused the school's physics instructor of rape and sexual harassment. The accused lecturer, who was the institution's reader, had also held the role of NCC officer in the Naval wing. Despite the female student coming to the institute with a formal complaint, the school's internal committee did not discover any proof of the claims she claimed. The probe didn't start until the Higher Education Department became aware of the situation. 

A Presidency University student from Kolkata filed a formal complaint with the internal committee of the university accusing Mahitosh Mandal, the former head of the department, of sexual harassment on July 17, 2022. 

It is believed that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, is essential for protecting female employees from sexual harassment at the workplace. It is significant to highlight that educational institutions play a significant role in this while also including formal and informal workspaces and that the law is not confined to the corporate environment in the formal sphere. 

A federal law that forbids sexual harassment of female employees and students in higher education institutions is the UGC (Prevention, Prohibition, and Redress of Sexual Harassment of Women Workers and Students in Higher Education Institutions) Regulation, 2015. 

In an effort to make changes, the UGC (Prevention, Prohibition, and Redress of Sexual Harassment of Women Workers and Students in Higher Education Institutions) Regulation, 2015 requires all universities, colleges, and deemed universities to adhere to a set of rules to ensure that the campuses are free from sexual harassment.

In order to prevent gender bias, the term "students"assures that the legislation covers every person registered in a specific higher education institution, regardless of their gender. 

An internal complaints committee must be established at every higher education institution in order to address sexual harassment claims. It must be dubbed the ICC and adhere to UGC-mandated rules if a body already exists with this goal.

Sexual abuse at work

POSHADVO has been founded to help keep workplaces free of sexual abuse across all sectors in the country.

Sexual abuse at work

POSHADVO firmly believes, as an organization, that sexual harassment is a serious denial of the right to equality, dignity and respect. Sexual abuse at work is something that most people routinely witness, but many do not openly speak about. Typically, this is for fear of losing their job, facing society's scorn, being caught up in never-ending court action or for other unspecified reasons.

Gender equality in all dimensions is a basic human right and the Constitution of India (“Constitution”) guarantees all its citizens equality of status and opportunity. 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. The Constitution also provides every citizen the ‘right to practice or carry out any occupation, trade or business, which includes the right to a safe environment, free from all forms of harassment.

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