Delhi HC: Vishaka Guidelines to be taken seriously, not followed in a ritualistic manner

Ashutosh Gambhir

The Delhi High Court, while delivering a judgment in a plea by a woman, reiterated the need to implement the Vishaka guidelines for sexual harassment at the workplace seriously.

The Division Bench of Justices S Ravindra Bhat and AK Chawla also observed that infraction in their implementation implies the employer’s lack of will to assure safety and equality at the workplace.

The petitioner, who was working as a Commercial Assistant with Air France, had alleged sexual harassment by the Managing Director of the airline. The petitioner alleged that she was harassed on multiple occasions, and that she was subjected to repeated sexual advances in spite of her express refusal.

She had also alleged that she was forced to resign from her position for complaining against the said harassment, and that she was not even allowed to take her belongings before being banished from the office.

The petitioner stated that she had lodged a complaint with the Internal Complaints Committee (ICC) of Air France on September 26, 2015. She also contented that the constitution of the said Committee was contrary to the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, as the external member appointed on the committee was not associated with any non-governmental organization.

The petitioner had also raised other objections with regard to the manner in which the proceedings were conducted. Those included choice of a neutral venue, right to have her mother attend the proceedings, and cross examination of and by the accused, among other grounds.

In addition to the objections mentioned above, the petitioner stated that the entire proceedings conducted by the Committee reeked of bias.

Thereafter, the petitioner approached the Single Judge Bench of the Court, which dismissed her petition for want of territorial jurisdiction. Subsequently, the petitioner approached the Division Bench.

Regarding the issue of territorial jurisdiction, the Division Bench observed that in light of the fact that the ICC constituted by Air France was for both the Delhi and the Gurgaon office, the jurisdiction of the Court over the proceedings of the ICC was established.

The Court, therefore, held that the Single Judge Bench should not have dismissed the plea, and set aside the impugned order.

With regard to the objection that the external member appointed on the Committee was not associated with any non-governmental organization, the Court observed that,

“The objective behind the requirement of a member from non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment in the Workplace Harassment Prohibition Act is to prevent the possibility of any undue pressure or influence from senior levels as was laid down by the Supreme Court in the case of Vishaka.”

The Court raised concerns at the manner in which the proceedings were conducted by the ICC, stating that it appears to have not conducted the proceedings according to principles of natural justice.

The Court further held that the Vishaka Guidelines are to be taken seriously, and not to be merely followed in a ritualistic manner.

“Even today, the world over is rocked by horrific tales of all forms of sexual harassment of female co-workers at varied workplaces….

‘…Unlike stray cases of individual indiscipline, which are dealt with routinely, upon employers lie the primary obligation to ensure the effectuation of the laws and rules, aimed at securing a safe workplace to their women employees.”

Finally, the Court held that the ICC was invalidly set up and directed that it be reconstituted in strict compliance with the requirements under law within thirty days, and that the inquiry be conducted afresh.

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