Vishaka Guidelines Need To Be Taken Seriously And Not Followed In A "Ritualistic Manner": Delhi HC [Read Judgment]

The Delhi High Court on Wednesday asserted that the guidelines laid down by the Supreme Court in the case of Vishaka & Ors. v. State of Rajasthan need to be taken seriously and not followed in an empty "ritualistic manner".

A Bench comprising Justice S. Ravindra Bhat and Justice A.K. Chawla observed, "The march of our society to an awareness and sensitivity to the issue of sexual harassment and its baneful effects, flagged in Vishaka (supra), culminated in the path-breaking Workplace Harassment Prohibition Act over 17 years later. Even today, the world over is rocked by horrific tales of all forms of sexual harassment of female co-workers at varied workplaces. Decision makers, Parliament, courts and employers are to be ever vigilant in ensuring that effective policies are swiftly and impartially enforced to ensure justice and see that no one is subjected to unwelcome – and unacceptable behavior."

The Court further emphasized on the fact that it is the employer who is endowed with the responsibility to tackle such cases with care, observing, "Unlike stray cases of individual indiscipline, which are dealt with routinely, upon employers lie the primary obligation to ensure the effectuation of these laws and rules, aimed at securing a safe workplace to their women employees. A permissiveness or infraction in implementation in one case, implies the employer’s lack of will, or inability to assure such safety and equality at its workplace. A complainant who takes courage to speak out against unwelcome behavior regardless of the perpetrator is not merely an object of pity or sympathy..."

The Court was hearing a Petition filed by a former employee of Air France, who had alleged sexual harassment by another employee who was a French national. She had duly lodged a complaint with the Internal Complaints Committee (ICC) of Air France in September 2015.

She, however, alleged that the constitution of the ICC was contrary to the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. She had submitted that the external member appointed on the committee was not associated with a non-governmental organization (NGO), and that his qualifications were not informed to her until much later in the course of the proceedings.

She further objected to the manner in which the proceedings were conducted, with her objections including the choice of a neutral venue, right to have her mother attend the proceedings, and her cross-examination of and by the accused. She had therefore contended that the proceedings were conducted in violation of the Act as well as the guidelines laid down in the Vishaka case.

A Single Judge had, however, dismissed her petition for want of jurisdiction, opining that no part of the cause of action had arisen in Delhi. Besides, the ICC had also exonerated the accused of all allegations. The complainant had therefore now filed a Letters Patent Appeal before the Division Bench of the High Court.

Considering the submissions before it, the Division Bench opined that since the ICC was constituted by Air France for both the Delhi and Gurgaon office, the jurisdiction of the court over the proceedings of the ICC had been established. It further noted that the complainant's appointment letter had been issued by Air France's office in Delhi, and her resignation was also coerced from the same office.

It therefore held, " ...it is clear that the cause of action is directly related to the constitution and functioning of the ICC and since the ICC has been constituted both for the Delhi as well as the Gurgaon office, and further, Delhi office being the registered office of Air France in India, all these facts constitute direct nexus to the cause of action in this case."

The Court then went on to examine the Petition on merits, and observed that the complainant's allegations concerning the composition of the ICC were in fact justified. It noted that the external member was not from an NGO, and also noted with concern the procedure adopted by the ICC. More specifically, the Court felt distressed at the fact that the complainant was forced to cross-examine and be cross-examined by the accused.

The Court, therefore, opined that the ICC constituted was "clearly invalid". It then allowed the Petition, setting aside the constitution of the ICC as well as the report submitted by it, directing Air France to reconstitute the committee in strict compliance with the legal requirements within 30 days and conduct the inquiry afresh.