The Bombay High Court has clarified that in a case arising prior to the coming into force of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the validity of a domestic enquiry into allegations of sexual harassment must be tested on the basis of the legal regime then prevailing, namely the binding Vishaka guidelines read with the applicable service rules or standing orders.
However, the mere absence of a Complaints Committee in the exact format contemplated in Vishaka v. State of Rajasthan [(1997) 6 SCC 241], does not, by itself, vitiate the enquiry if the enquiry was otherwise conducted under a statutory framework such as the Model Standing Orders and satisfied the principles of natural justice, including notice of charges, supply of material, opportunity of participation, representation, and absence of real prejudice to the workman, added the Court.
The High Court held that the Industrial Tribunal cannot declare such an enquiry illegal, unfair, or the findings of the Enquiry Officer perverse merely on the ground that the enquiry was not conducted by a Complaints Committee in the precise Vishaka form, without independently examining the actual fairness of the process, the opportunity afforded to the workman, the existence or absence of prejudice, and whether the findings are supported by evidence on record.
Accordingly, the High Court held that the Industrial Tribunal’s Part I Award, to the extent it held the domestic enquiry illegal, unfair, vitiated, and the findings perverse solely on the basis of non-compliance with Vishaka in its exact structural form, was unsustainable in law. The Award was quashed and set aside to that extent, and the matter was remanded to the Industrial Tribunal for fresh consideration of the validity of the domestic enquiry in light of the principles of natural justice, actual prejudice, and evidentiary support for the Enquiry Officer’s findings.
A Single Judge Bench of Justice Amit Borker observed that the controversy had to be examined beginning with Vishaka, because at the time when that judgment was delivered there was absence of any proper law dealing with sexual harassment at the workplace. The Supreme Court had therefore framed guidelines to protect the dignity, safety, and equality of women, and had expressly made them binding under Article 141 of the Constitution. At the same time, the Court noted that Vishaka itself made clear that those guidelines were to operate only till legislation was enacted, and thus they were intended as a temporary filling of the gap.
The Bench considered the meaning of “legislation” in labour law and held that Standing Orders, once certified under the Industrial Employment (Standing Orders) Act, do not remain mere contractual terms but acquire statutory force and operate like law within the establishment. It further held that when the appropriate Government amends Model Standing Orders to include provisions relating to sexual harassment, such amendment becomes part of the statutory scheme and amounts to delegated legislation binding on establishments to which those Standing Orders apply.
However, the Bench clarified that though Standing Orders have statutory force, their coverage is limited only to establishments governed by the Industrial Employment (Standing Orders) Act. Since many categories of workplaces and workers fall outside that framework, amendments to Standing Orders cannot be treated as “suitable legislation” occupying the entire field. They can operate as law within their limited domain, but they do not satisfy the requirement of complete legislation across all sectors.
According to the Bench, that requirement was fulfilled only when Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which created a comprehensive statutory framework applicable across the whole of India to public and private sectors, including the unorganized sector and domestic workers, and which mandated Internal Complaints Committees and, where necessary, Local Committees.
The Bench therefore observed that the absence of a Complaints Committee in the exact format spoken of in Vishaka could not by itself be sufficient to declare the entire enquiry illegal. If the workman knew the case against him, had access to the material, and was given a fair chance to explain, the enquiry could not be rejected merely because the format of a Committee was not followed. Conversely, if the workman was denied opportunity, if material was withheld, or if the process was biased or one-sided, the enquiry would fail.
Briefly, the Respondent No. 1 had been employed with the petitioner (GlaxoSmithKline Pharmaceutics Limited), since 14 May 1990 in the production department at its Nashik establishment. According to the petitioner, respondent No. 1 had a checkered service record, having been issued warnings on eight occasions, suspended on seventeen occasions, and subjected to stoppage of increments thrice for alleged misconduct including unsatisfactory performance, indiscipline, misbehaviour with the management, and habitual absenteeism. In 2010, respondent No. 1 was elected Vice President of respondent No. 2 Union.
The petitioner’s case was that in 2011, a lady employee working in the ointment department had proceeded on medical leave due to ailments, and when she resumed duty on 7 February 2011, she was informed that her department had been changed at the instance of the respondents. To discuss the said change, she approached respondent No. 1 at the office of respondent No. 2 Union. It was alleged that instead of addressing her grievance, respondent No. 1 sexually harassed her by demanding sexual favours and also physically assaulted her. The said employee lodged a complaint dated 19 February 2011 with the petitioner.
Upon receipt of the complaint, the petitioner conducted a preliminary inquiry and thereafter issued a Show Cause Notice to respondent No. 1 under the Bombay Industrial Employment (Standing Orders) Rules, 1959. Later, the petitioner issued a Charge Sheet alleging misconduct and informing respondent No. 1 that a domestic enquiry would be conducted in accordance with the applicable Model Standing Orders. Thereafter, the petitioner appointed Dr. U.S. Kharote as Enquiry Officer to conduct the domestic enquiry into the allegations of sexual misconduct. Upon conclusion of the enquiry, the Enquiry Officer submitted his report holding respondent No. 1 guilty of the charges.
Challenging the same, the respondent No. 1 filed Complaint before the Labour Court at Nashik under the MRTU and PULP Act alleging victimization on account of his union position. The petitioner contended that the said complaint was filed only to delay termination proceedings, and, having regard to the gravity of the misconduct, terminated the services of respondent No. 1 with immediate effect. Subsequently, an industrial dispute was raised challenging the termination, and seeking reinstatement with continuity of service and full back wages.
The Industrial Tribunal passed the impugned Part I Award holding that the domestic enquiry was not fair, legal, or in compliance with the principles of natural justice and the mandate of Vishaka vs State of Rajasthan, further holding that the findings of the Enquiry Officer were perverse, though granting liberty to the petitioner to lead evidence before the Tribunal to prove misconduct.
Appearances:
Senior Advocate Kiran Bapat, along with Advocates P.N. Salgaonkar and Pratik Salgaonkar, for the Petitioner
Advocates K.W. Thakare, G.R. Naik, Uresh U. Sawant, and Rutika Naik, for the Respondent No.1
