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In a recent decision, the Madras High Court has opined that failure to deal with complaints of sexual harassment at workplace, with an amount of sensitivity would be construed as a misconduct or an offence.  Justice S.M Subramaniam was dealing with a writ petition filed by a woman employee whose sexual harassment complaint has been pending before the Internal Complaints Committee (ICC) for over 7 1/2 years.

The Court stated, “an amount of sensitivity shown by the administration is of paramount importance and in the event of not showing any sensitivity, undoubtedly, we are not dealing with the issues in accordance with the provisions of the Act and further, committing an act of dereliction, which is certainly a misconduct or an offence.”

The petitioner, is an employee of Bhabha Atomic Research Centre (BARC), Kalpakkam, submitted a complaint regarding a sexual harassment caused.

Initially, a Committee to deal with the allegations of sexual harassment was constituted by the respondent / employer, but the said Committee had not conducted any enquiry.

Thereafter, a second committee was constituted and the said committee conducted an enquiry by providing opportunity to the complainant as well as to the accused officer.

The second committee considered the allegations and submitted its reports on January 22, 2013.

The petitioner has contented that the way in which the complaint was dealt with by the employer are not in consonance with the provisions of the Act.

The prolonging and protracting of the issues, has contributed for the dilution of the allegations raised. The petitioner further submitted that it is an administrative bias on part of the respondents in dealing with such complaints and therefore, constitution of third committee is to be set aside and actions must be proceeded with on the report submitted by the 2nd respondent committee constituted.

Per contra, the Union of India argued that there was no official bias and the proceedings were conducted by providing opportunity to all the parties and thus, the allegations raised against the Department are vague and not supported with any evidences.

The Court, after hearing both parties opined that any lapses on the part of the administration must be viewed seriously. It observed that an employer can not act in a casual manner as sexual allegations in workplace causes greater concern in the working atmosphere and further, creates lot of trouble amongst the women employees, who all are working in various institutions.

“In the event of prolongation or inaction against such allegations, the faith on the system will be questioned and furthermore, it will provide a wrong message to the accused persons,” the Court opined.

The Court further opined that lapses on the part of the administrative officials who are duty bound to ensure a better atmosphere for developing efficient administration authorities will be misconstrued as if the authorities have acted in support of the accused persons.

On the issue of delay of over six years, Justice Subramaniam observed that “efflux of time caused mental agony to the complainant. Loss of time naturally would result in loss of trust on the system. Therefore, it is the responsibility of all concerned to ensure that the complaints of sexual harassment are dealt in accordance with the provisions of the Act and within a reasonable period of time.”

“Thus, providing mechanism including constitution of a committee in accordance with law, conducting enquiry and proceeding further by following the procedures are part of the administrative efficiency and therefore, in the event of any violation, lapses, it is to be construed that the authorities failed to comply with the constitutional perspectives and principles,” the Court continued.

Justice Subramaniam further observed that right to work is a basic right which includes peaceful atmosphere and that, "When a person is employed and attending the work place, it is the duty of the employer to develop a sense of security in the minds of employees, more specifically, women employees.”

"The administrative officials are duty bound to ensure a better atmosphere for developing efficient administration,” the Court opined.

In light of the above, the Court ordered the following:

• To constitute a Committee in accordance with Section 4 of the Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013, within a period of one week from the date of receipt of a copy of this order.
• That the NGO to be appointed as the member of the Committee, must be an outsider, preferably outside from Kalpakkam in the present case.
• That the Committee to be constituted shall conduct the enquiry, taking note of the evidences already considered by the second committee, so also the report submitted and proceed further by providing opportunity to all the parties concerned. If necessary, it will take further evidences or otherwise, conclude the enquiry and submit a final report within a period of six (6) weeks from the date of the receipt of a copy of this order.
• That on receipt of the enquiry reports, the respondents shall initiate all further actions both under the Criminal Law and under the Service Law as the case may be as applicable and as expeditiously as possible.

Cause Title: Sushma Alaguvadival vs Union of India & Ors.