L. Mohapatra, J.
1. The petitioner who alleges to have been sexually harassed and misbehaved by the Co-ordinator of Centre for Development Research & Training (for short, 'CENDERET') of Xavier Institute of Management (for short, 'the Institute'), Bhubaneswar, has prayed for the following directions :
(a) Direction to the State Government to provide adequate security/ protection from harassment caused to the petitioner by the Co-ordinator and also by the Director.
(b) Enquire into the matter of sexual harassment and misbehaviour to the petitioner and other lady employees in the Institute by an independent agency under the direct supervision of this Court.
(c) Enquire into the matter and take appropriate action against the Director of the Institute for making the complaint of the petitioner public, causin-g more harassment and violating her decency and dignity in the public.
(d) To enquire into the matter as to how the Director sent a semi- nude photograph along with the petitioner's photograph through his official letter dated 26.6.2000 addressed to the petitioner.
2. The petitioner is working as Senior Programme Manager in the Institute and has filed this writ application with the prayer stated above on the following allegations.
She joined the Institute as a Research Assistant in the Department of CENDERET on 1st March, 1989. She was promoted to the post of Senior Research Assistant in January, 1991 and thereafter Senior Research Associate with effect from 1st January, 1995. The said post of Senior Research Associate was re-designated as Senior Programme Manager from 1st August, 1999 and she is continuing in the said post. The Institute has an extension wing, namely, CENDERET which was opened in the year 1988 and the purpose of the said Institute is to work for capacity enhancement and enrichment of organisation which are working for the empowerment of rural poors. The CENDERET works as a consultancy organisation for giving training support to large number of NGOs. State Government and Central Government Departments and agencies to impart quality of efficient personnel, consultancy activities, etc. The Department extends consultancy mainly in the area of project appraisals, monitoring and evaluations. The said extension wing of CENDERET is headed by a Co-ordinator and the Director of the Institute appoints the Co-ordinator to look after the affairs of the CENDERET. From April, 1988 one Shri D.N. Rao, Assistant Professor of the Institute was appointed as the Co- ordinator by the Director for a period of two years. Since the joining of Shri D.N. Rao, as Co-ordinator, the working atmosphere became polluted to a great extent. Instead of giving a dynamic leadership in the Department/ Extension Wing. Shri Rao virtually started managing the CENDERET in a very autocratic and undemocratic manner and is busy in harassing the employees working in CENDERET, more particularly the lady employees. The petitioner is one such lady employee who has been harassed by Shri Rao. Previously three lady employees, namely, Sumitra Das, Prativa Das and Chandana Das working in CENDERET had represented to the Director in their letter dated 8th March, 1999 indicating the manner in which the Co-ordinator of CENDERET Shri Rao harassed them in many forms including sexual harassment. In the said letter they had categorically mentioned how the Co-ordinator was passing sexually coloured statements against them and always commenting that unmarried women staff are more competent than married women. The allegation of the petitioner is that she became also a victim of the harassment perpetrated by the Co-ordinator Shri Rao, mentally and emotionally. She further alleges that she was also sexually harassed in her working place. The allegation of the petitioner is that Shri Rao uses very rough, derogatory and indecent language to suppress the voice of the lady employees including the petitioner. Giving an example, it is stated that in a meeting held on 5.6.2000 Shri Rao made sexually coloured remarks against the petitioner stating that while she was staying on leave she was frequently coming and passing time with the Director. Shri Rao compelled many times the petitioner and other lady employees to work in the office beyond office hours and also during holidays. When the petitioner objected to such directions which was tainted with immoral purposes, the petitioner was forced to go to Malkangiri and/or Koraput and other distant places when there was no necessity to visit such places whereas other male employees sitting idle were available in the office to visit such places. Similar behaviour has also been meted out to other lady employees working in CENDERET by Shri Rao. After several such incidents, the petitioner before filing the writ application, personally met the Director on 6th and 12th June, 2000 and narrated her trauma and the misbehaviour and sexual harassment made by the Co-ordinator Shri Rao and the Director advised the petitioner to find out her own way of protecting herself and also not to make any further complaint against the Co-ordinator which may invite disciplinary proceeding or may result in transfer to distant place. Looking at the attitude of the Director, the petitioner sent a lawyer's notice narrating the sexual harassment caused to her by Shri Rao, on 13.6.2000, but no action was taken by the Director which resulted in filing of this writ application.
3. A counter affidavit has been filed on behalf of opposite parties 1 and 2 wherein all the allegations made by the petitioner have been denied and it is stated that the allegations made by the petitioner were enquired into by a lady employee of the Institute who also happens to be a member of the committee formed to looking into the allegations of sexual harassment to the working ladies and after inquiry it was found that the allegations made by the petitioner were not correct. Apart from the aforesaid statements made in the counter, Shri Ashok Mohanty, learned counsel appearing for the Institute, submitted that the grievance of the petitioner is actually with regard to her not getting promotion and false allegations were made against Shri Rao only because of the said reason.
4. Shri N. C. Panigrahi, learned counsel appearing for the petitioner, made the following submissions :
(a) The Institute has not constituted a Complaint Committee in terms of the decision of the apex Court reported in AIR 1997 Supreme Court 3011 : Vishaka and Ors. v. State of Rajasthan and others.
(b) The Complaint Committee claimed to have been constituted by the Institute was not in existence at all and only after filing of the writ application, documents were prepared indicating constitution of such a Committee and placed before this Court.
(c) The constitution of the Committee as stated by the Institute is not in terms of Clause 7 of the guidelines prescribed by the apex Court in the said judgment.
(d) The complaint of the petitioner was not examined by the Committee but was examined by one of the members of the Committee which is not in accordance with the guidelines given by the apex Court. Had the complaint been examined by the Committee, the allegations would have been proved and the Co-ordinator would have faced an order of removal or dismissal from service. The petitioner was not given any opportunity of hearing when the complaint was examined by one of the members of the so- called Committee.
(e) No amendment has been made in the Disciplinary Rules pursuant to the decision of the apex Court in the aforesaid case.
5. So far, as the first point is concerned, it is necessary to look into what the apex Court said in the decision stated above. The apex Court in paragraph 16 of the judgment held that in absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, the following guidelines and norms were specified and laid down for due observance of all work places or other institutions, until a legislation is enacted for the purpose. This was done in exercise of power available under Art. 32 of the Constitution of India for enforcement of the fundamental rights and it was further directed that the guidelines would be treated as law declared by the apex Court under Art. 141 of the Constitution of India. The guidelines prescribed by the apex Court are as follows :
'Having regard to the definition of 'human rights' in Section 2(1)(d) of the Protection of Human Rights Act, 1993.
Taking note of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time.
It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women :
1. Duty of the Employer or other responsible persons in work places and other institutions :
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.2. Definition :
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as :
(a) physical contact and advances ;
(b) a demand or request for sexual favours ;
(c) sexually coloured remarks ;
(d) showing pornography ;
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the workman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
3. Preventive Steps :
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps :
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal Proceedings :
Where such conduct amounts to specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimised or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action :
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.6. Complaint Mechanism :
Whether or not such conduct constitutes an offense under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.7. Complaints Committee :
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the report of the Complaints Committee to the Government department.
8. Workers' Initiative :
Employees should be allowed to raise issues of sexual harassment at workers' meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.9. Awareness :
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.10. Third Party Harassment :
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.'
In the said guidelines 'sexual harassment' has been defined as follows:
'For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as :
(a) physical contact and advances ;
(b) a demand or request for sexual favours ;
(c) sexually coloured remarks ;
(d) showing pornography ;
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.'
6. Shri Mohanty, learned counsel appearing for the Institute submitted that the entire reading of the complaint submitted by the petitioner through her Advocate does not constitute 'sexual harassment' as defined under the said guidelines. On the other hand, Shri Panigrahi submitted that the complaint of the petitioner squarely comes within the definition of 'sexual harassment' so far as it relates to Clauses (c), (d) and (e) of the definition. Shri Panigrahi further submitted that several other provisions contained in the guidelines have not been complied with by the Institute; such as, for express prohibition of sexual harassment as defined in the guidelines at the work place, notification should be published and circulated in appropriate ways, which has not been done. Rules/Regulations relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender, but the same has also not been complied with. In absence of amendment of the rules relating to conduct and discipline no disciplinary action as provided under Clause 5 can be taken, even if an employee is found guilty of causing sexual harassment to a lady worker in the work place. The Complaints Committee has not been constituted in terms of the guidelines and therefore, there is total non-compliance of the guidelines given by the apex Court in the said judgment which is to be treated as law declared by the Court under Article 141 of the Constitution of India and in absence of such Complaints Committee, the only recourse open is for a direction to any independent agency to enquire into the allegations made by the petitioner, as has been done in several other cases by this Court.
7. From the arguments advanced by both parties, it is required to be determined as to whether the opposite parties Institute has complied with the guidelines given by the apex Court in the aforesaid case. Though an allegation is made by Shri Panigrahi that only after filing of the writ application documents were prepared indicating constitution of the Complaints Committee, Shri Mohanty, learned counsel for the Institute, submitted that a Complaints Committee was constituted much prior to the allegations made by the petitioner, Attention of the Court is drawn to Annexure-E filed along with the counter of opposite parties 1 and 2 and it is submitted that the Institute had issued guidelines with regard to constitution of Complaints Committee and the said Committee was constituted with effect from 23.09.1999 consisting of the following members :
1. Ms. Suchitra Pradhan
2. Prof. Latha Ravindran
3. Prof. Sniigdha Patnaik
4. Prof. S.B. Mohanty
5. Mr. Pabitra Mohan Mishra
6. Ms. Swapna Harrison
7. Ms. Seema Nayak
The constitution of the said Committee has been challenged by Shri Panigrahi on the ground that it is not in terms of the guidelines given by the apex Court. According to the guidelines the Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee constituted by the Institute consists of 7 members headed by a woman and out of 7, five are lady members. Therefore, there cannot be any dispute that this part of the guidelines has been complied with.
8. So far as inclusion of either NGO or other body familiar with the issue of sexual harassment is concerned, it is submitted by Shri Mohanty that one of the lady members of the said Committee is a member of an NGO and therefore, there has been full compliance of the guidelines of the apex Court. The guidelines clearly indicate that in order to prevent the possibility of any undue pressure or influence from senior levels, the Complaints Committee should involve a third party, i.e. either NGO or other body familiar with the issue of sexual harassment in it and not an individual who may be a member of an NGO. Shri Mohanty submitted that the NGO cannot be included in the Committee as the organisation itself cannot form part of the Committee and body means an individual, I cannot accept such contention of Shri Mohanty as the NGO may be included as a member of the Committee but the same may be represented by one of the members of the NGO or body, as the case may be. But the Complaints Committee constituted by the Institute neither includes an NGO nor a body familiar with the issue of sexual harassment and therefore, the Complaints Committee of the Institute is not in terms of the guidelines issued by the apex Court. Moreover, the complaint submitted by the petitioner has not been considered by the Committee but by a member of the Committee who is also an employee in the Institute and subordinate to the Co- ordinator against whom allegations have been made. Therefore, the report submitted by one of the members of the Complaints Committee cannot be accepted. The complaint lodge by the petitioner should have been entertained and examined by the Committee as a whole and not by an individual member of the Committee. In this respect there has been total non-compliance of the guidelines issued by the apex Court.
9. So far as the other points are concerned, Shri Mohanty has not been able to place any document showing that express prohibition of sexual harassment as defined in the guidelines has been notified, published and circulated in appropriate ways at the work place or that, the Rules Regulations relating to conduct and discipline have been amended so as to include appropriate penalties in case an employee is found guilty of causing sexual harassment to any lady employee at the work place and in absence of such provision, no disciplinary action can be taken against such employee as provided in the guidelines.
10. Shri Mohanty submitted that even accepting the allegations made in the complaint, no case of harassment is made out as defined in the guidelines, Question as to whether the complaint/allegations made by the petitioner constitute sexual harassment or not is to be examined by the Complaints Committee and not by this Court. The Complaints Committee not only has to look into the allegations made but also has to conduct inquiry, collect materials, record statements of other employees and then only come to a conclusion as to whether the allegations constitute sexual harassment or not. There is no Complaints Committee constituted by the Institute in terms of the guidelines, issued by the apex Court and therefore, the opposite parties are required to constitute such a Committee in terms of the guidelines issued by the apex Court which can look into the grievances/allegations of the petitioner and find out as to whether such allegations constitute sexual harassment or not. Shri Panigrahi submitted that since the petitioner has levelled allegations against the seniormost officers of the Institute, this Court should direct the inquiry.to be conducted by an independent agency. He has referred to several decisions of this Court where directions had been issued for inquiry by C.B.I, or other independent body. Those cases stand on different footing than that of this case. This is a case where allegations made by the petitioner have not been examined by a duly constituted Complaints Committee in terms of the guidelines issued by the apex Court. Therefore, the allegations have to be examined and enquired into by a legally constituted Complaints Committee. The petitioner has a remedy open if a legally constituted Complaints Committee in terms of guidelines of the apex Court comes to a conclusion that no such sexual harassment has been caused to the petitioner. But if the. Complaints Committee comes to a conclusion that the allegations made by the petitioner are correct, remedial measures have been provided for in the said guidelines to be adopted by the Institute.
11. Shri Panigrahi apprehends that lady members included in the Complaints Committee are working at lower levels in the hierarchy and may get influenced by the Co-ordinator/Director and therefore, independent lady members should be included as members of the Complaints Committee. I do not find the apprehension to be just as the apex Court has also taken care of such a situation and has observed ' that to prevent possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
12. I, therefore, dispose of this writ application with the following directions :
Opposite parties 1 and 2 shall constitute a Complaints Committee in terms of the guidelines issued by the apex Court, i.e. it must be headed by a woman and not less than half of its members should be women. Either a non-Government organisation or a body familiar with the issue of sexual harassment should be a member of the said Committee. This Committee shall be constituted within a period of one month from the date of communication of this order. The complaint of the petitioner shall be examined by the Committee and not by any individual member of the Committee and the petitioner shall be given an opportunity of hearing and adduce evidence/materials before the Committee in support of her allegations. The Complaints Committee shall conclude the inquiry within a period of two months from the date of its constitution and submit its report. The Institute shall amend the Rules/Regulations relating to conduct and discipline and provide for appropriate penalties in such rules against the offenders in terms of the guidelines issued by the apex Court, within a period of three months from the date of communication of this order. If the Complaints Committee finds the allegations made by the petitioner to be correct, then action should be taken against the offender in terms of Clauses 4 and 5 of the guidelines issued by the apex Court. Till completion of the enquiry by the Complaints Committee, the petitioner shall not be disturbed from her present place of posting.