A.K. Menon, J.
1. Rule. Rule returnable forthwith.
2. Petitioner No.1 is a private limited company of which Petitioner No.2 is the Company Secretary. For the sake of convenience Petitioner no.1 and 2 are referred to as Petitioner. Respondent No.1 is a statutory body set up under the National Commission for Women, Act, 1990 and is empowered to deal with various issues concerning women as set out in the Act. Respondent No.2 was employed with the Petitioner at all material times and filed a complaint against the Petitioner no.1 with the Respondent no.1.
3. The Petitioner seeks a Writ of Certiorari to quash the proceedings initiated by Respondent No.1 - National Commission for Women (âNCWâ / âNational Commissionâ) against Petitioner No.1 â (âKPMGâ) pursuant to the complaint made by Respondent No.2 and restrain Respondent No.1 from conducting any further proceedings in the matter.
4. We may now advert to the facts leading upto the filing of this petition. Respondent No.2 joined the Petitioner company on 19th September 2005 as a Director. For diverse reasons that need not engage our attention in this petition, Respondent No.2 was disappointed that she was not designated as a Partner. On or about 3rd October, 2006 she expressed via email addressed to the Petitioner that she would consider moving on from the Petitioner company. Respondent No.2 had in various communications with several of her superiors conveyed her grievances. It appears that that the Petitioner also had certain reservations. It is the Petitioners' contention that it gave Respondent No.2 ample opportunity to improve her performance but to no avail.
5. As a result on 30th November, 2006, Petitioner No.1 terminated her services and paid her contractual dues and completed all the formalities. Thereafter vide her Advocate's letter dated 12th December, 2006 and 16th January, 2007, she called upon the Petitioner to withdraw her letter of termination and sought a written apology from the Petitioner.
6. In or around April 2007, four months after termination of services, she complained that she suffered sexual harassment at the work place during her tenure with the Petitioner. The aforesaid legal notices and the communications referred to earlier did not contain any complaint of sexual harassment during the period of her employment. On or about 9th April 2007 Respondent no.2 filed a Complaint before the Maharashtra State Commission for Women.
7. Upon receipt of the complaint, Petitioner No.1 constituted a committee on or about 8th May, 2007 to look into her complaint in accordance with Staff Manual of the Company as per guidelines laid down by the Supreme Court in case of Vishaka Vs. State of Rajasthan. The committee comprised of one male member and two women external members, one of whom would preside over committee as per the guidelines. One was a sociologist, who was also senior advisor to the Petitioner, the second Ms. Bhavna Joshi, who was also an advisor to the Petitioner and the third an expert on sexual harassment at the workplace. The said Vishaka committee fixed several dates in order to enable Respondent No.2 to appear before it. Various alternate dates were reportedly fixed. However, Respondent No.2 chose not to appear before the committee.
8. Respondent No.2 objected to constitution of the Vishaka committee and appointment of Ms. Bhavna Joshi and sought reconstitution of the Vishaka committee and contended that she also had an equal right to nominate members of the committee. The Petitioner provided various options viz changing the constitution of the committee, including former judges and suggested the names of two former Judges of the Supreme Court i.e. Justice Sujata Manohar and Justice B. N. Srikrishna. However, Respondent No.2 did not cooperate, instead she approached the Maharashtra State Commission for Women (State Commission) through a complaint. On 19th June, 2007 Respondent No.2 filed proceedings before Respondent No.1. A copy was received by petitioner no.1 on 9th July, 2007. On 16th July 2007 the Respondent No.2 filed a criminal complaint against seven employees of the Petitioner under Sections 354, 509, 34 read with Sections 188, 500, 503 and 506 of the Indian Penal Code. On 9th August 2007 four of these seven accused persons filed Writ petition No.1445 of 2007 for quashing the said complaint.
9. The Petitioners by their letters dated 15th June, 2007 and 20th June, 2007 informed Respondent No.2 that it had already formed a Vishaka committee. The Petitioner challenged proceedings before the State Commission on the ground of maintainability. On or about 8th October, 2007 the State Commission formulated the following issues
â1. To inquire into the complaint as why KPMG did not constitute an internal complaints committee as per the Vishaka Guidelines laid down by the Hon'ble Supreme Court?
2. If and when the internal complaint committee was constituted, what was the outcome of the inquiry. Whether the constitution and deliberation of the committee was in accordance with the guidelines ?
3. Reasons behind the non-acceptance of Ms. Meenakshi Maheshwari resignation and later terminating her services?â
10. On 3rd December, 2007, the Petitioner was informed by Respondent No.2 that the State Commission had constituted a committee to investigate the complaint. The Petitioner once again informed the State Commission that a Vishaka committee had already been constituted and should be allowed to proceed with the inquiry and that if Respondent No.2 had any objection to any specific member of Vishaka committee, the Petitioner was willing to appoint external members instead. Respondent No.2 did not reply.
11. In the meanwhile, in August 2008 without prejudice to its rights and contentions, Petitioner No.1 participated in a preliminary hearing before the State Commission. It is the Petitioners' case that State Commission had pre-judged issues and was not complying with principles of natural justice. Several of its members had prejudicial views and had publicly aired them. The Petitioner therefore, filed Writ Petition No.1107 of 2008 in this court challenging the proceedings before the State Commission. Respondent No.2 also filed a Writ Petition No.963 of 2008 seeking directions to the State Commission to complete the inquiry. On 18th November, 2010 both the writ petitions came up for hearing. Respondent No.2 withdrew her petition with liberty to prosecute the complaint pending before the National Commission. In December 2010, the State Commission expressed their inability to process the complaint for want of resources and under these circumstances, Respondent No.2 approached the National Commission and filed the complaint. The State Commission transferred all records to the National Commission. Since Respondent No.2 was not pressing the complaint before the State Commission, Writ Petition No.1107 of 2008 filed by Petitioner No.1 came to be dismissed.
12. Three years later, Petitioner No.1 received a letter dated 13th September, 2013 from the National Commission, directing certain employees and ex-employees to attend before an inquiry committee of Respondent no.1. The Petitioner sought rescheduling of the hearing to another date. On 19th September, 2013 it informed the National Commission that the officers against whom complaints had been made by the Respondent no.2 were no longer in the employment of Petitioner No.1. The Petitioners' requests for inspection of documents filed were ignored.
13. On 18th October, 2013 the Petitioner's Advocate once again requested the National Commission for the copies and documents and contended that the matter cannot be heard since there was no compliance of Rule 10 of Part II of the National Commission for Women (Procedure) Regulations, 2005. After a lapse of one month, the Commission permitted the Petitioners Advocate to take inspection of the record and proceedings. That is when they learnt that many hearings had taken place without notice to the Petitioners. Minutes of meetings were not provided despite repeated requests.
14. Based on the complaint made by Respondent No.2, Respondent No.1 has constituted a three member inquiry committee to enquire into the complaint and has allegedly conducted exparte hearings contrary to its own rules. On or about 26th October, 2013, the Petitioner learnt that various hearings had been conducted exparte by Respondent No.1. The Petitioner contends that it was never notified of any hearing held by Respondent No.1 or the deposition of Respondent No.2 recorded by Respondent no.1. It is grievance of Petitioner No.1 that the Minutes of Meeting were not provided despite repeated requests and Respondent No.1 had failed to follow procedure laid down under the National Commission for Women (Procedure) Regulations, 2005 for conducting investigation. The Petitioners allege violation of principles of natural justice resulting from refusal to provide copies of the documents to Petitioner No.1, thereby putting the Petitioner No.1 at a disadvantage.
15. On 26th October, 2013, Respondent No.1 â Commission inquired into the complaint made by Respondent No.2 and framed/reframed terms of reference as follows:
â1. To determine whether Vishaka Guidelines were followed by original employer (KPMG)
2. Exact nature of sexual harassment and if related evidence on record is available
3. Reasons of termination of services?
4. Whether there was unfair dismissal?
5. Whether the dismissal has caused loss of future career opportunity?
6. Whether this Committee can recommend to an employee as follows :
â Letter of apology
â Compensation
â Relief â Bonus
â Benefits arising out of this dispute
â Any other reliefs.â
16. The Petitioner questioned the jurisdiction of the Respondent no.1 to adjudicate upon the complaint on the basis of these terms of reference were framed on 26th October, 2013 inter alia on the grounds that ;
(i) Respondent No.2 filed complaint of sexual harassment for the first time only in April 2007.
(ii) Respondent No.2 had not tendered her resignation prior to termination of her services,
(iii) Respondent No.2 had not attended before the Vishaka committee but had filed criminal writ Petition No.1445 of 2007.
(iv) The National Commission had violated principles of natural justice,
17. According to the Petitioner, the National Commission has acted in an illegal and arbitrary manner in holding the proceedings although the Commission is a statutory body which was duty bound to act in accordance with principles of natural justice and fair play. The Petitioner has prayed that inquiry proceedings be quashed and pending hearing and final disposal of the Petition, the inquiry proceedings be stayed.
18. Respondent No.1 has filed an affidavit of Raj Singh, Deputy Secretary wherein it is submitted that the petition is premature and that the Commission has wide powers to investigate to complaints by women, if the commission feels that it appropriate to do so. It is admitted in the affidavit that hearings before the Commission are not judicial hearings but are investigative in nature and the Commission follows all rules of natural justice. It is denied that the investigation into the petitioners' case is beyond its jurisdiction or it is arbitrary or illegal in any manner.
19. An additional affidavit is also filed on behalf of the National Commission on 25th March, 2013 wherein the deponent has made a grievance that the Petitioners are seeking to delay the proceedings at every stage. It is submitted that the Commission is adequately empowered to hear the complaints and it proposes to proceed with the inquiry that it has undertaken.
20. On behalf of Respondent No.2, an affidavit in reply has been filed on or about 22nd January, 2014 and thereafter written submissions have also been filed. It is contended that Respondent No.2 is a qualified C.A. with 15 years experience in a senior position in multinational companies. She has narrated how she complained about discomfort as a result of behavior by colleagues. Several extracts from emails have been reproduced in the affidavit. It is submitted that no inquiry was conducted as per Vishaka guidelines. On the other hand on 30.11.2006 she received a communication from one Sunil Mathur stating that her services have been terminated. She then filed a complaint in International Ethics Committee of the Petitioners. The said Committee stated that it has no jurisdiction. According to Respondent No.2, the company leveled false allegations against her for holding company property etc. although she had sent via email to the Human Resources Department proof of handing over company property despite which the Petitioner-company had not paid her dues.
21. Respondent No.2 has denied the allegations of the Petitioner and submitted that Writ Petition No.963 of 2008 came to be withdrawn with liberty to prosecute the criminal complaint. Respondent No.2 has set out dates when the alleged incidents took place. It is alleged that the Petitioners did not provide her with any reason for termination and they had purported to set up Vishaka committee only to scuttle the inquiry before the Commission. It is alleged that the Petitioner company gainfully continued to employ perpetrators of the offences till 2013 and then they were allowed to resign despite evidence against them being available with Petitioner No.1 since it had already filed a Petition in 2008.
22. Respondent No.2 alluded to having suffered cyber defamation which has further violated her right to work and live with dignity. In November 2012 the Chief Metropolitan Magistrate's Court directed Mumbai police to block the defamatory content on websites. Respondent No.2 had meanwhile filed a criminal complaint against the Human Resources Manager, Chief Operating Officer, Chief Executive Officer and former Director, H. R. of Petitioner No.1 for having failed to comply with Vishaka guidelines. The said four persons filed Criminal Writ Petition No.1445 of 2007 in this court challenging the FIR registered against them. By an order dated 6th August, 2008, this court was pleased to quash the FIR as no cognizable offence had been made out. Respondent No.2 then filed S.L.P. (Cri.) No.7670 of 2008 against the said order which came to be dismissed while clarifying that the observations made in the impugned order will not affect the merits of her case.
23. Respondent No.2 has in her affidavit dated 30th April, 2014 and in her written submissions raised a grievance that the petitioners took advantage of her absence on 23rd April, 2014 and the Petitioners counsel addressed the Court despite Respondent No.2's application for adjournment. Prior to 23rd April, 2014, the matter had not been taken up for want of time on several occasions. On 23rd April, 2014 when the matter was called, the son of the second Respondent was present and a request was made for adjournment which was declined in view of the Petitioner's opposition based on a fact that submissions on behalf of the Petitioner were to be on a point of law, namely the jurisdiction of Respondent No.1 to entertain the second Respondent's complaint.
24. We therefore, proceeded to hear the petitioners' counsel and counsel for the National Commission â Respondent No.1. Respondent No.2's son was accordingly informed that only arguments on a legal issue were being advanced and that Respondent No.2 would be heard on that aspect. We may also observe here that after 23rd April, 2014 the matter was heard on 30th April, 2014 and 8th May, 2014 when Respondent No.2 was present and addressed the Court. Thus, a full opportunity has been given to her to present her case. Moreover, Mr. Sen, learned counsel appearing on behalf of the Commission also addressed the Court in relation to Respondent No.2's complaint and supported the proceedings before the commission. The Respondent No.2 was thus not prejudiced on account of her absence on 23rd April, 2014.
25. Respondent No.2 has provided a list of dates and events commencing from 19th September, 2005 to 30th April, 2014. The written submissions also contain cross references to various documents referred to and annexed to the pleadings. It sets out in detail the events that have transpired. We have considered the submissions and the annexures thereto and the list of dates, events, orders passed by various authorities including complaint dated 11th February, 2013 addressed to the Chairperson of Respondent No.1 along with other application. The submissions of Respondent No.2 are largely on the merits of the case which we are not called to adjudicate upon. The challenge in the present petition is restricted to the scope of proceedings before Respondent No.1 and the Petitioner's contention that Respondent No.1 had been acting illegally and arbitrarily including by conducting hearing without notice to the Petitioner and that Respondent No.1 had no power to adjudicate the claims between the individual parties.
26. Respondent No.2 has contended that Respondent No.1 is a statutory body, has powers to receive and enquire into complaints involving deprivation of women's right, non-implementation of laws, policies and guidelines enacted to protect women and failure on the part of the Petitioner to constitute internal complaints committee to prevent and redress sexual harassment at the work place. That Respondent No.1 is mandated to ensure the implementation of laws, conduct inquiries into the non-compliance of laws and guidelines. According to Respondent No.2, the Respondent No.1 has power to inquire into the complaint of Respondent No.2 to determine whether the Petitioner has complied with the Vishaka guidelines and under Regulations 10(c) and (d) of the NCW Act to look into complaints and take action regarding suppression of women's rights, non-implementation of laws and provide protection to women.
27. It is the case of Respondent No.2 that the Petitioner is attempting to derail the present inquiry. Various aspects of the merits of case are dealt with by Respondent No.2. Respondent No.2 has contended that the National Commission has necessary powers to inquire into individual complaints and therefore submits that the order dated 27th November, 2013 granting stay of further proceedings before the National Commission must be vacated. 28. Further rejoinders and sur-rejoinders have been filed by the parties, however, it is not necessary to deal with each of them to the extent they are repetitive in nature.
29. It is the case of the Petitioner that the National Commission for Women, Act, 1990 provides for functions of the Commission which are to be found in section 10. The functions include taking up cases of violation of the provisions of the Constitution and of other laws relating to women with the appropriate authorities, looking into complaints and take suo moto notice of matters relating to; deprivation of women's right, non-implementation of laws enacted to provide protection to women and non-compliance of policy decisions, guidelines or instructions and relief to women.
30. Sub-section 4 of Section 10 empowers the commission with powers of the Civil Court to try suits for the purpose of summoning and witnessing examination on oath, requiring the discovery and production of any documents, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or office, issuing commissions for recording examination of witnesses.
31. Ms. Malhotra, learned Senior counsel for the Petitioner submitted that under section 17 of the Act the Central Government has been empowered to make rules to carry out the provisions of Act and in pursuance of section 17, the National Commission for Women (Procedure) Regulations, 2005 have been enacted wherein the procedure for dealing with complaints is enlisted in Part 2. In the said procedural rules item 2 provides that the Commission may summarily dismiss the complaints if it relates to civil dispute between the parties, matters which are sub-judice before the court or tribunal and matters which are outside the preview of the commission on any other ground. These three categories of matters ought not be entertained by the commission. In the instant case since criminal complaints have already been filed and are sub-judice the commission ought not to have proceeded to entertain the complaint.
32. Ms. Malhotra further submitted that Petitioner No.1 has a well framed policy for sexual harassment which is as per Staff Manual and it is available on the website to ensure that the women employees are protected against sexual harassment at the workplace and accordingly it is stated that Petitioner No.1 had acted in compliance with the judgment of the Supreme Court in Vishaka's case. While guidelines provided for the employer initiating criminal proceedings, a criminal complaint had been filed by Respondent No.2 herself against the officers of Petitioner company, who are alleged to have harassed Respondent No.2. It is submitted that the Petitioner cannot now take action against these former employees. The Petitioner had constituted Vishaka committee but Respondent No.2 chose to abstain from meetings convened. It is further submitted that the issue of constitution of Vishaka committee by Petitioner No.1 has already been dealt with in the order of this court dated 6th August, 2008 in Criminal Writ Petition no.1445 of 2007 wherein this court recorded that after termination of service of 30th November, 2006, it is only on 2nd April, 2007 that Respondent No.2 addressed a letter to the company making allegations of sexual harassment against three persons and thereafter committee was constituted to inquire into the allegations. However, Respondent No.2 has not participated in the inquiry. In fact during the hearing of Petition No.963 of 2008 and 1107 of 2008 the Petitioner No.1 offered to reconstitute the Vishaka committee comprising of retired Judges of the Supreme Court and High Court yet the offer was not accepted by Respondent No.2. It is submitted that in view of the order passed by a Division Bench of this Court on 6th August, 2008 there is no question of Petitioner No.1 having failed to follow the Vishaka guidelines.
33. It is further submitted that Respondent No.2 has approached various forums, filed criminal proceedings, cyber-crime complaints including a complaint before the Institute of Chartered Accountant of India. That the terms of reference dated 26.10.2013 are outside the scope and jurisdiction of National Commission and did not survive for consideration today. It is further submitted that National Commission Regulations framed under section 17 have been violated. The Commission ought to have dismissed the complaint since the issues raised were subject matter of disputes between the parties concerned and the matter was sub-judice before the Magistrate's Court. It is submitted that Commission is suo moto and arbitrarily expanding the scope of inquiry. The Commission should not proceed to hear the complaint in view of Regulation 2.5 of National Commission Regulations. Finally, it is submitted that the conduct of National Commission was partisan in view of the fact that it violates principles of natural justice and the inquiry was conducted on 2.7.2012, 3.8.2013, 7.8.2013 in the presence of Respondent No.2 but without notice to the Petitioner.
34. The Petitioners submit that the National Commission is not an adjudicatory body and it has only recommendatory powers, powers to examine all the matters relating to safeguards provided for women under the Constitution, make in such reports, recommendations for improving the conditions of women by the Union or any State, take up case of violation of the provisions of the Constitution and of other laws relating to women with the appropriate authorities. It is for the appropriate authority to look into complaint and take suo moto action in matters relating to deprivation of women's rights, by taking up such matters to appropriate authorities calling for special studies or investigations into specific problems and recommending strategies for their removal.
35. The Commission is further empowered to undertake promotional and educational research, advise on the planning process, evaluate the progress of development of women and make representations in those respects. The Commission is neither court nor tribunal with powers to adjudicate and determine rights of the parties.
36. Ms. Malhotra Ld. Senior Advocate submitted that the powers of National Commission came up for consideration before the Supreme Court in Bhabani Prasad Jena Vs. Convenor, Secretary, Orissa State Commission for Women and Anr. In 2010 (8) SCC 633 wherein it is categorically held that no power or authority is given to the State Commission to adjudicate or determine the rights of the parties. Applying the said decision to the facts of the present case, it is submitted that National Commission has no power to adjudicate or determine rights of the parties. It is further urged as set out in case of U.S. Verma, Principal, DPS and Anr. Vs. National Commission for Women and Ors. (2009) Delhi Law Times 557 that the reports and recommendations of the commission and other statutory bodies entitled to investigate or inquire into certain category of matters would not bear the character of âfindingsâ with any evidentiary value. The National Commission is only a national level body primarily looking into policy, to highlight them and recommend appropriate measures to the Government concerned. It cannot look into individual issues unless they pose or concern a wider policy or legislative structural dilemma.
37. Mr. Sen, learned Counsel for Respondent No.1 submitted that the Commission was not aware that in the order on 6th August, 2006, in Criminal Writ Petition No.1445 of 2007, there was an observation that Vishaka committee had been formed by the Petitioner. The Commission was also unaware that the matter was carried to the Supreme Court. According to Mr. Sen the points noted by the Committee are only styled as âterms of referenceâ but in fact are only for internal guidance and not terms of reference in the strictly legal sense. According to Mr. Sen, section 10 specifically permits the National Commission to entertain complaints. There is no limitation or restriction on the powers to entertain a private complaint.
38. It is submitted that in the case of Bhavani Jena (supra) the Supreme Court has specifically noted competency of the committee and the power to ascertain facts. The power to entertain a private complaint is not curtailed by the regulations which fact pre-supposes powers to entertain private complaints. Mr. Sen concedes that it does not have power to determine rights of the parties. It does have power to address the issues and take them up with relevant authorities for remedial or cumulative purposes and the constitution of Vishaka committee by the employer was in addition to the measures that commission can adopt. It is submitted that committee is conducting a preliminary inquiry and Petitioner has filed the Petition in haste.
39. Apropos the âterms of referenceâ, Mr.Sen submitted that Items 1 and 2 could be looked into by the commission. Item 3 to 5 according to counsel are consequential. Item 6 in question is for committee to decide as a recommendatory measure and not for determination of rights and recommendations. As far as the terms of reference item 1 and 2 are concerned we have dealt with them hereafter. It is however not possible to accept Mr. Sens submission qua items 3 to 6.
40. Mr. Sen conceded that the terms of reference cannot be converted into reliefs to be granted to the complainant. He submitted that under 3.5.3 and 3.5.5. of Staff Manual, staff members are supposed to bring to the notice of any Partner without delay in case an employee encounters such objectionable behavior or an employee become aware of the colleague being a victim of sexual harassment. Staff members may speak to the reporting Partner, Staff Partner or HRD professionals. The firm must ensure that all such cases are dealt with sensitively and appropriate action is initiated. He also relied upon the order passed by this court in Writ Petition No.963 of 2008 wherein the Petitioner and Respondent No.2 herein had been granted liberty to adopt such remedy as may be available in law.
41. Mr.Sen submitted that in the present case reading Section 10(e) and (f) together, it is evident that the National Commission does have the power to entertain the complaint of Respondent No.2. He then placed reliance upon the terms of reference of inquiry committee was produced at paragraph 24 of the affidavit of Petitioner No.2. He submitted that there was no violation of natural justice in view of the fact that no final order would have been passed without hearing all concerned.
42. Respondent No.2 in her submissions has relied upon the report of the committee on amendment to criminal law wherein Chapter IV deals with sexual harassment at workplace. However, since the report is recommendatory in nature, we do not deem it necessary to consider various recommendations.
43. After this petition was heard and was closed and reserved for orders on 8th May 2014, attempts were made to persuade the concerned parties namely the Petitioner and Respondent No.2 to explore the possibility of an amicable resolution of the matter. Upon consent of the parties, the matter was thereafter heard in Chamber on 13th June, 2014 and 4th July, 2014. In the interregnum, Respondent No.1 met the Petitioner's CEO in an attempt to find a mutual acceptable solution. On 4th July, 2014 the parties appeared before us and Respondent No.2 sought further time since the meeting had taken place and the parties are still exploring possible modalities for settlement. The matter was adjourned at the request of parties to 4th August 2014 but was listed on 8th August 2014, when the Petitioners and Respondent no.2 informed us that no amicable solution could be found. We have therefore proceeded to pronounce our judgment.
44. Before proceed to address the larger issues, at the cost of repetition, we may sum up the sequence of events. The National Commission first issued notice Petitioner No.1 on 13.1.2013 after which on 19.9.2013 the Petitioner informed the National Commission that the officials against whom the harassment complaint was made are no longer in the service of Petitioner No.1. At the hearing on 26.10.2013 that the commission passed an order, exparte, framing questionable terms of reference. Meanwhile, the criminal proceedings were adopted by Respondent No.2 against seven company executives under the provisions of section 354, 509, 34 r/w 188, 500, 503, 506 of I.P.C. Thereupon the four officials of Petitioners filed a Petition for quashing the complaint which came to be quashed vide order dated 6.8.2008. This court observed in its order that there was a genuine attempt by Petitioner No.1 to carry out directions given in Vishaka's case but it did not yield results since Respondent No.2 failed to co-operate. This court had held that it found no fault with the Petitioner under the Vishaka judgment. On 7.11.2010, the Supreme Court dismissed an S.L.P. filed against the order dated 6.8.2008. Meanwhile the complaint against three officials Mr.Vikram Utamsingh, Mr. Abizer Diwanji and Mr.Aneesh Maloo are being proceeded by the Court of Metropolitan Magistrate, 13th Court at Dadar.
45. We have examined the scheme of the National Commission for Women Act, 1990. Reference to the Statement of objects and reasons reveals that the Government has decided to set up a commission for women, and the main task of the commission shall be to study and monitor all matters relating to the constitutional and legal safeguards provided for women, to review the existing legislations and suggest amendments, wherever necessary. It will also look into the complaints and take suo moto notice of the cases involving deprivation of the rights of women in order to provide support, legal or otherwise, to helpless women. The Commission shall also monitor the proper implementation of all the legislations made to protect the rights of women so as to enable them to achieve equality in all spheres of life and equal participation in the development of the nation.
46. Chapter III of the Act provides for the functions of the Commission. The functions of the commission relevant to the present case are referred below:
Section 10. Functions of the Commission.-
(1) The Commission shall perform all or any of the following functions, namely:-
(a) investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws;
(b) â¦.. â¦... â¦..
(c) â¦.. â¦... â¦..
(d) â¦.. â¦... â¦..
(e) â¦.. â¦... â¦..
(f) look into complaints and take suo moto notice of matters relating to-
(i) deprivation of women's rights;
(ii) non-implementation of laws enacted to provide protection to women and also to achieve the objective of equality and development;
(iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and providing relief to women, and take-up the issues arising out of such matters with appropriate authorities;
(2) â¦. â¦. â¦.
(3) â¦. â¦. â¦.
(4) The Commission shall, while investigating any matter referred to in clause (a) or sub-clause (f) of sub-section (1), have all the powers of a civil court trying a suit and, in particular, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents; and
(f) any other matter which may be prescribed.
47. These are only two sections relevant for our purposes. Section 10 sub-section (4) empowers the commission with all the powers of the Civil Court while trying suit in respect of summoning and enforcing the attendance of any persons and examining them on oath, require the discovery and production of any document, receiving evidence on affidavits and/or requisitioning any public record or copy thereof from any Court or office, issuing commissions for the examination of witnesses and documents and any other matter which may be prescribed. It is, however, to be noted that these powers are circumscribed by the provisions of clause (a) and sub-section (i) of clause (f) of sub-section 1. In other words, the powers enlisted above may be exercised by the commission while investigating and examining all the matters relating to safeguards for the women under the constitution and the laws and to look into complaints and take suo moto notice of matters relating to (i) deprivation of women rights, (ii) non-implementation of laws enacted to provide protection to women and achieving the objective of equality and development; (iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and providing relief to women and no other.
48. The key areas that the commission is empowered to deal with are safeguards provided to the women under the Constitution of India and other laws and deprivation of women rights as detailed above. In respect of other functions the commission does not have all the powers of a Court.
49. With this background it is to be seen whether the petitioners' grievance can be looked into by the commission in the manner it proposes to do via the six terms of reference. We have noted the submissions of Mr.Sen, the learned counsel for the commission, who fairly conceded that the so called terms of reference framed by the commission and which are reproduced in paragraph above were so framed within the overall framework of the Act only for internal review. It is therefore appropriate that we deal with each of these.
50. We have considered the submissions of Respondent No.2 in relation to this challenge and her contention that the proceedings were instituted with Respondent No.1 after having exhausted all the remedies. It will not be out of place to mention that Respondent No.2 had successfully blocked the blogs placed on the internet by lodging a complaint before the Metropolitan Magistrate and TV reports by complaining to the News Broadcaster Standard Authority (NBSA) who also passed orders in favour of the Petitioner and the Channel concerned was found to be in breach of the NBSA code of conduct ethics and guidelines on reporting of cases of sexual assault. She is presently pursuing the criminal complaint against the alleged offenders.
51. Given the current state of facts and pendency of multiple proceedings we are called upon to consider whether the National Commission could be justified in continuing with the proceedings before it in the facts of the present case. Admittedly, Respondent No.2 has filed a criminal complaint against some former employees of the Petitioners against whom she has serious complaints. The Metropolitan Magistrate's Court is seized of the matter and we have no reason to doubt that the matter will be heard in accordance with law. It is not therefore desirable that the matters pending before the Magistrate's Court be considered by the Commission in parallel proceedings. The Commission should not take upon itself the task of deciding upon the merits of the complaint albeit the same being brought to the Commission's knowledge by Respondent No.2. The criminal complaints are proceeding only against ex-employees and not against the petitioners. It, therefore, has to be seen as to what powers of the Commission has qua the Petitioner No.1.
52. As far as, the first point of reference is concerned viz whether the Visakha guidelines were followed by the petitioners or not, there cannot be any doubt that the petitioners had formed the Vishaka committee with notice to Respondent No.2. This court has held so. It is respondent no.2 who did not appear before the committee so formed and requested changes to its constitution. Even then the petitioner was willing to reconstitute the committee but it did not find favour with the Respondent. While formation of the committee can be achieved by the unilateral act of the petitioners attendance before the committee at its proceedings is a consensual event and without participation of respondent no.2 the committee will not be able to function and / or able to discharge its function.
53. In the instant case, therefore, it does appear that the petitioners followed the Vishaka guidelines. In view of this the National Commission of Women need not inquire into this aspect which has already been brought out before this court and the Supreme Court in the proceedings referred to above. No purpose will be served by the National Commission inquiring into whether or not the Visakha guidelines were followed by the petitioners. However, since this point of reference may assume significance in many other cases and we are of the view that as far as the powers and jurisdiction of the commission are concerned, it is well within the power of the commission to inquire into and determine whether the Vishaka guidelines were followed by an organization. Although in the present case the 1st respondent need not look into this aspect in other cases where the Visakha guidelines were not formed or offered to be formed by the employers, the commission is empowered to consider this issue. For that matter, the Commission may entertain individual complaints to ascertain whether Vishaka guidelines were followed. Needless to mention such enquiries may not be conducted ex-parte, without notice to the organisation in question. The basic rules of natural justice must be followed if the commission finds a prima facie case. If the commission is inclined to reject the complaint in limine notice to the organisation need not be issued.
54. As regards the second point of reference viz exact nature of sexual harassment and evidence in respect thereof, we understand that these are the matters which are sub judice before the criminal court and it is appropriate that respondent no.2 adduces evidence in the court instead of commission looking into the same. That said, we clarify that the commission will have jurisdiction to inquire into complaints to arrive ascertain the existence of a prima facie case of violation but should not proceed to adjudicate upon complaints or indict respondents or grant specific reliefs. No doubt it may be necessary for the commission to delve into the facts but it must not arrive at conclusions or grant reliefs. It may however make recommendations on the basis of such facts in the larger interests of women. If a prima facie case is made out, the commission must issue notice to the organisation and hear them before making recommending remedial measures. The commission is however not empowered to decide the rights of parties and due care must be taken in this behalf. If the commission proceeds to determine any such issues there will be parallel enquiries underway which is hardly desirable. Moreover no purpose will be served by the commission arriving at findings or granting reliefs or issuing directions since the commission is not a Court. The Act does not envisage enforcement of the commission's directions.
55. The remaining points of reference are as follows;
â3. Reasons of termination of services?
4. Whether there was unfair dismissal?
5. Whether the dismissal has caused loss of future career opportunity?
6. Whether this Committee can recommend to an employee as follows:
â Letter of apology
â Compensation
â Relief â Bonus
â Benefits arising out of this dispute
â Any other reliefs.â
56. We are of the view that the National commission has no jurisdiction to deliberate upon or come to any conclusion in relation to items 3 to 6 above or any of them. All of these items 3 to 6 are beyond the scope of the function of the commission as set out in section 10. If in the course of carrying out the investigation it observes violation of women's right, the commission may only recommend measures to prevent a fait accompli to that complainant. In the present case, therefore, the commission has no jurisdiction to determine whether or not there was an unfair dismissal or whether such dismissal has caused loss of future career opportunity. Nor can the Commission demand a letter of apology, direct payment of compensation, or grant relief by way of ordering payment of bonus. Respondent No.2 has already adopted the criminal proceedings for bringing the alleged offenders to book and the courts before which such proceedings are brought are expected to try the same.
57. In conclusion, having considered the submissions of the learned counsel for the parties and having perused the pleadings, affidavits and relevant documents we are of the opinion that the terms of reference framed by the Commission will be subsumed by the following broad issues:
1. Whether the National Commission for women is entitled to entertain complaints of individuals in relation to the matters concerning rights of women?
2. The nature of reliefs the Commission can grant to the individual complainants, if any?
58. We are of the view that the Commission is empowered to look into complaints relating to deprivation of women's rights, non-implementation of laws enacted to provide protection to women and also to achieve the objective of equality and development, non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and provide relief to women and to take up such issues with appropriate authorities. However, it does not have unbridled power or authority. The Commission functions in a recommendatory capacity and is empowered to take up issues relating to women with the authorities concerned. It is not an adjudicatory body yet Respondent No.1 complies with the quasi-judicial character of âStateâ under Article 12 of the Constitution of India.
59. There is no doubt that by virtue of section 10(1)(f) the commission can look into complaint addressed to it and take suo moto notice of matters in relation to deprivation of womens welfare related policy, decisions, guidelines and instructions. The commission is also empowered to take up such issues with appropriate authorities. The powers of the commission while carrying out investigation in relation to the aforesaid matters including limited powers of a civil court. However, it does not appear to us that the provisions of section 10(4) invest the commission with powers of a civil court with the intention enabling the commission to arrive at the findings of fact which will bind the parties irretrievably. This can be inferred from the fact that empowerment of the commission under section 10(4) is for the purposes listed in section 10(1). The intention is that the commission is entitled to act as a guardian of womens' rights with a view to ensuring that womens' rights are protected or not rendered inaccessible.
60. As regards the second issue, namely, nature of reliefs the commission can grant to individual complainant we are of the view that the commission may after investigating the complaint take up the matters with appropriate authorities including employer or such other persons whose action or inaction have given rise to such complaints. We are of the view that the commission is not entitled to arrive at final conclusions or grant reliefs that a civil or criminal court can.
61. In the result the petition succeeds. Rule is made absolute in terms of prayer clause (a). We, however, wish to clarify that respondent no.2 is at liberty to proceed with its criminal complaints and cyber-crime complaint pending, if any, without being influenced by any observation in this order. There will be no order as to costs.