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Improper handling of Sexual Harassment complaint impinges upon the Fundamental Right to Life and Dignity: Supreme Court

An ex-RAW employee alleged that officers subjected her to harassment by asking her to join sex racket running inside the Organisation for securing quicker promotions and that on refusal she was subjected to persecution.

Debayan Roy

In a case concerning a sexual harassment complaint by a former employee of the Research and Analysis Wing (RAW) against her seniors in the organisation, a Bench of Justices AM Khanwilkar and Dinesh Maheshwari has held that since the complaint was “improperly handled,” “showcasing procedural ignorance and casual attitude of her seniors,” the fundamental right to life and dignity of the appellant was “impinged upon.”

The case was filed by a woman officer who had joined RAW in February 1988. In August 2007, after working in RAW for over a decade, she filed a complaint of sexual harassment against Ashok Chaturvedi, the then Secretary in charge of the organisation and Sunil Uke, the then joint secretary.

The complainant had alleged that officers subjected her to harassment by asking her to join “the sex racket running inside the Organisation for securing quicker promotions and upon refusal to oblige, she was subjected to persecution." The Court recounted, “thus began the series of allegations regarding acts of commission and omission which culminated into litigation continuing upto the present batch of four cases."

However, RAW responded to the allegations of sexual harassment after a gap of almost three months by constituting a Complaints Committee in accordance with the guidelines laid down in Vishaka and Others vs. State of Rajasthan and Others.

A female officer, Shashi Prabha was appointed as the Chairperson of a three­ member Complaints Committee. The Committee was re­constituted in January 2007 with the addition of Dr. Tara Kartha, Director, National Security Council Secretariat (NSCS).

The Committee in an ex parte report submitted that there was no sexual harassment allegations proven against Sunil Uke. Thereafter the woman officer attempted to commit suicide at the Prime Minister’s Office in August 2008.

In the aftermath of this incident another committee was constituted by the then Prime Minister under the Chairmanship of Rathi Vinay Jha, a retired officer of the Indian Administrative Service to look into the complaints against Shri Ashok Chaturvedi.

The Committee dealt with two aspects of allegations against Shri Ashok Chaturvedi – firstly, an allegation of not acting in accordance with the Vishaka Guidelines on the receipt of the complaint and secondly, allegations of actually indulging in the acts falling within the ambit of sexual harassment. This Committee did not rule in favour of the complainant either.

However, the issue that arose in the plea before the Supreme Court concerned an appeal challenging a Delhi High Court order of 2012, wherein it upheld a decision to compulsorily retire the complainant under Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975.

In the complainant's appeal, the constitutionality of Rule 135 was challenged as well. Rule 135 allows the compulsory retirement of any RAW officer on (a) the officer being exposed as an intelligence officer or if such officer is becoming unemployable in the Organization, for reasons of security, or (b) disability or injuries received by the officer in the performance of his duties.

The Supreme Court Bench of Justices AM Khanwilkar and Dinesh Maheshwari, however, concluded that “Rule 135 of the 1975 Rules is valid and does not suffer from the vice of unconstitutionality.”

The Court proceeded to uphold the decision to compulsorily retire the appellant. In this regard the Delhi High Court's reasoning was cited, which indicated that all procedural formalities were followed and several other options explored in the interest of the service as a whole, before opting for the inevitable decision to invoke Rule 135.

Notably, the complainant also urged the Court to include modification in the rules of handling sexual harassment complaints in organisations as it did not “provide for sufficient participation to the victim of sexual harassment during the inquiry into her complaint.”

The complainant had contended that the charged officer has wide rights of participation in the inquiry process, whereas the victim/complainant has no such corresponding right.

The Supreme Court disagreed on this aspect observing that the “petitioner seems to have confused two separate inquiries conducted under two separate dispensations as one cohesive process." The Court explained,

"The legal machinery to deal with the complaints of sexual harassment at workplace is well delineated by the enactment of The Sexual Harassment of Women at Workplace Act, 2013 (hereinafter “2013 Act”) and the Rules framed thereunder. There can be no departure from that, either in matters of complaint or of inquiry thereunder. The sanctity of such procedure stands undisputed. The inquiry under the 2013 Act is a separate inquiry of a fact finding nature."

ruled the Supreme Court.

The Court further stated that after the fact finding inquiry under the 2013 Act was over, the matter goes before the department for a departmental inquiry under the relevant departmental rules [CCS (CCA) Rules in the present case] and accordingly, action follows.

"The said departmental inquiry is in the nature of an in-house mechanism wherein the participants are restricted and concerns of locus are strict and precise. The ambit of such inquiry is strictly confined between the delinquent employee and the concerned department having due regard to confidentiality of the procedure. The two inquiries cannot be mixed up with each other."

reads the judgement.

However the court has noted that the way the appellant's complaint of sexual harassment was dealt with showed “procedural ignorance and casual attitude of her seniors in the department."

Further the court has noted that the complainant had faced exceedingly insensitive and undignified circumstances due to improper handling of her complaint of sexual harassment and thus “regardless of the outcome of the inquiry into the stated complaint, the fundamental rights of the petitioner had been clearly impinged”.

The Court, therefore, ordered a compensation of Rs 1 lakh to the complainant for the “stated violation of her right to life and dignity.”

The Court has also granted complainant the time to vacate and hand over peaceful possession of her official quarters for a period of three months from today stating that no penal house rent charges will be be levied or recovered from her.

[Read the Judgment]

Nisha Priya Bhatia VS Union of India.pdf
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