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Delhi HC holds govt organisation secretary is employer under anti-sexual harassment law

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The Delhi High Court has held that the secretary of a government organisation is an employer in terms of Section 2(g) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and that a harassment complaint against him would not lie with the Internal Committee but with the Local Committee.

A single-judge bench of Justice Sanjeev Sachdeva was hearing a petition filed by a woman working with a government organisation on probation basis, who had accused the Secretary of the said organisation for sexual harassment of many forms, including inappropriate sexual advances, unwelcome physical and sexual contact, and sexually-coloured remarks.

The High Court held that, “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 petition had sought:

• directions to her employer, to pay compensation of Rs 5 lakh for mental trauma, pain, suffering and emotional distress.
• directions to her employer, to grant her three months paid leave with immediate effect, in addition to the leave.
• quashing of the office memorandum dated February 14, 2020 issued by the petitioner’s employer terminating her services.

Senior Advocate Ritin Rai, appearing for the petitioner (the aggrieved woman), submitted that the Internal Complaints Committee lacked jurisdiction to enquire into her complaint as her complaint was against the Secretary who was the ‘employer’ within the meaning of Section 2(g) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

He added that members of the Internal Complaints Committee, particularly the purported external members, sought to pressurize the aggrieved woman into withdrawing her complaint before the police and the Local Committee and urged her to reconcile with the Secretary and upon her refusal, they expressed their displeasure and stated that it would be best for her career if she quit her job and found alternative employment. He further submitted that the Internal Complaints Committee thereafter incorrectly recorded that she was withdrawing her complaint pending before the Internal Complaints Committee.

Rai contended that since the beginning of her employment, she was constantly intimidated by the Secretary that if she did not reciprocate his sexual advances, her probation period would be extended or that she might even lose her employment and she was not informed of any proceeding before the alleged Review Committee which allegedly reviewed her performance.

Senior Advocate Geeta Luthra, appearing for the Government Organisation, submitted that the aggrieved woman was on probation and after a review of her performance and keeping in view the various memoranda issued to her about her performance and lapses and advising her to improve her performance and her failure to do so, a decision has been taken not to regularise her and to discontinue her services.

She further submitted that the Secretary is not an employer in terms of section 2(g) of the Act as he is neither the appointing authority nor the disciplinary authority of the aggrieved woman, adding to this submission he stated, the aggrieved woman was holding the post equivalent to Deputy Secretary and the President is the appointing authority and the controlling authority and the controlling authority acts subject to the general superintendence of the Executive Board.

She added, the Writ Petition filed by the aggrieved woman is not maintainable as she has an alternative remedy of an appeal against the decision of the Internal Complaints Committee.

The Delhi High Court held:

• The complaint of sexual harassment against the Secretary would lie only to the Local Committee and the Internal Complaints Committee would not have any jurisdiction to entertain any complaint against the Secretary. 

• The Inquiry report dated January 2020 of the internal Complains Committee and its opinion and recommendations are held to be without jurisdiction and non-est. 

• The Office Memorandum dated 14.02.2020 terminating the services of the aggrieved woman was quashed. 

• 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 Government Organisation shall forthwith pay her salary for the current month and clear the arrears of her salary within four weeks. 

• The aggrieved woman shall be deemed to be on paid leave till the Local Committee passes appropriate interim orders with regard to provision of a safe working environment to her. 

• The competent authority of the Government Organisation would be at liberty to review her performance and take a decision on her employment status after submission and implementation of the report by the Local Committee. 

• The claim of the aggrieved woman for compensation for alleged mental trauma, pain, suffering and emotional distress caused to her was left open for determination by the Local Committee in terms of Section 15 of the Act. 

The Court, however, clarified that the judgement shall not amount to an expression of opinion on the merits of the allegations made by the  aggrieved woman or the defence of the Secretary.

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