Delhi High Court reinstates woman editor who was fired after accusing employer of sexual harassment

The Delhi High Court on Monday reinstated a woman to her post as Editor of a publication house after she was fired in February last year for accusing her employer of sexual harassment..While ordering so, Justice Sanjeev Sachdeva said that the woman’s complaint against the employer will be handled by the Local Complaints Committee, as the Internal Complaints Committee (ICC) will have no jurisdiction over the same. She has been directed to be reinstated with full back wages and other service benefits.."The aggrieved woman shall be deemed to be on paid leave till the Local Committee passes appropriate interim orders with regard to provisions of a safe working environment for her,” Justice Sachdeva said in his judgment..In December 2017, the woman was hired by the publishing house (name withheld to protect the complainant’s identity) as Editor [English] on probation for two years. Her appointment was confirmed in February 2018.She alleged that she faced sexual harassment at the hands of Secretary of the institution, which included inappropriate sexual advances, unwelcome physical and sexual contact, and sexually-coloured remarks.The complainant told the Court that when she confronted the accused, he “tried to hold her hand, saying that she should have understood his ‘hints’ and she should provide him ‘bodily satisfaction’ if she did not want her probation period to be extended beyond February 2020.”.She said that apart from sexual harassment, office memoranda were issued to tarnish her employment record because she had protested her employer's sexual advances. She further alleged that the Secretary would make racist and sexist comments against women from North-Eastern states.On November 7, 2019, the woman filed a complaint with the local police station detailing the harassment and assault by the Secretary, after which an FIR was registered. She also sent an e-mail to the executive board of the publishing house on the very same day, demanding the constitution of an independent committee to investigate the allegation. She added that the ICC lacked jurisdiction since her complaint was against the employer.She alleged that despite her reservations about handing over the complaint to the ICC in contravention of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), the President of the executive board referred the complaint to the ICC and nominated two external members. Ultimately, no action was taken against the employer.The complainant further alleged that she was sent several notices by the ICC to appear before it even though she had given written replies arguing that it lacked jurisdiction. She also wrote to the Local Committee, which took cognizance of the matter on December 16, 2019 and directed the Secretary to file his reply. It also granted the woman three months' paid leave. However, these orders were not complied with. The allegation goes that when the woman personally appeared before the ICC to protest, its external members pressured her to take back the complaint and even recorded the same in its report..The ICC submitted its inquiry report to the board on January 14, 2020 saying that the complaint was withdrawn. Subsequently, an office memorandum was issued in February 2020 terminating her employment. The complainant sent repeated reminders to the publication house requesting it to comply with the directions of the Local Committee, but to no avail. Aggrieved by this, she approached the High Court seeking compliance with the direction to grant her three months' paid leave, as well a direction restraining the publication house from taking any adverse decision with regard to her employment status pending the decision of the Local Committee..Before the High Court, the publication house defended the constitution of the ICC, arguing that it was formed by the President and not the Secretary, against whom the complaint was made. It was also argued that the woman, who was on probation, was terminated keeping in view her performance.Counsel for the complainant, on the other hand, argued that the action to terminate her services without following the procedure prescribed by the rules was tainted with mala fides. Instead of taking action against the Secretary, the publication house was defending his actions tooth and nail, it was contended..The Court held that according to Section 2(g) of the POSH Act, the Secretary is indeed an "employer," and therefore, complaints against him were to be handled by the Local Committee. The Court therefore held that the ICC's inquiry report as well as its opinions and recommendations are without jurisdiction and non est."Nothing has been placed on record by the...to show that the day to day affairs of the...were managed by someone other than the Secretary..., it cannot be but held that the Secretary, who is the Principal Executive Officer of the...incharge of the day to day affairs...custodian of all records and manages the properties and funds...would also be included in the definition of an “employer”." the order stated.On the Review Committee formed to assess her performance at the publication, the Court held"First of all, no rule or provision has been pointed out on behalf of the...to justify the procedure of constituting a Review Committee to review her performance; secondly, the office memoranda and calling explanations relied upon were issued either by the Secretary or by officers junior to the Secretary, who also report to him; thirdly, if there is any merit in the allegations of the aggrieved woman then the office memoranda and calling explanations were all issued because she rebuffed his advances; fourthly, the timing of the termination order is such that it prima facie smacks of malafides. Specially, when a complaint of sexual harassment is pending against the Chief Executive Officer of the... the Executive Board should have waited for the decision on the complaint of the aggrieved woman.".On these grounds, among other, the Court held,"The aggrieved woman would be deemed to continue in service but as a probationer in terms of her appointment letter till the conclusion of the inquiry by the Local Committee. She is reinstated to her former position, with continuity of service, full back wages, and other consequential service benefits.".The complainant was represented by Senior Advocate Ritin Rai along with Advocates Shreya Munoth, Kritika Bhardwaj, Ashwin Pantula, Aditi Rao and Suhavi Arya.The publication was represented by Senior Advocate Geeta Luthra and Advocates Abhishek Aggarwal, Damini Thaker and Kamkashi Gupta.Additional Standing Counsel Anupam Srivastava and Advocate Dhairya Gupta appeared for the Delhi government.