Delhi District Court
Rca Dj - 2/19 vs The Management Of on 5 April, 2023
IN THE COURT OF SH. AJAY GOEL: LD. PO
INDUSTRIAL TRIBUNAL-I,
RADC, NEW DELHI.
RCA DJ - 2/19
APPELLANT
"X"
.... Appellant
Vs.
THE MANAGEMENT OF
1) M/s TRUEBLUE INDIA LLP & ANR.
11Th & 12th Floor, Tower-1,
Candor Tech Space IT/ITES SEZ
Village Tikri, Sector -48, Gurgaon, Haryana.
.... Respondent no. 1
2) SH. RAHUL SINGH S/O SH. S.K. SINGH,
Aged- 46 Years,
R/o B-504, Lovely Home Apartments, Sector-5,
Dwarka, New Delhi- 110075.
.... Respondent no. 2
Date of Institution : 04.04.2019
Date of presentation : 14.03.2023
before this court
Date of Arguments : 05.04.2023
Date of Award : 05.04.2023
AWAR D
1. Vide this judgment, I shall dispose of the appeal filed by
the complainant/appellant under Section 18 of the Sexual
RCA DJ - 2/19 Page No. 1 of 32
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 read with Rule 11 of the Sexual Harassment of
Women at workplace (Prevention, Prohibition and Redressal) Rules,
2013 against the final report dated 14.08.2018.
The girl has not concealed her name in the petition and
her advocate stated that name may be mentioned in the judgment as
per the title of the appeal, but keeping in view the sanctity of the
nature of the case and the act involved, this court is refraining
mentioning the name of the girl and instead "X" will be used for
appellant.
2. In the final report dated 14.08.2018, the Internal
Complaint Committee hereinafter called as "ICC" has given the
findings against the complainant while holding that:
(i) With regard to incident 1 around March 10, 2017,
the ICC holds that no such incident took place at all.
Consequently, there is no question of any impact on
Vijayshree about the same.
(ii) With regard to incident 2 around March 23,
2018, there were no such alleged talks amongst
Vijayshree and Rahul. There was only a whatsapp
message which does not in any manner constitute
any act of sexual harassment.
(iii) With regard to alleged incident 3, the ICC holds
that there is no evidence to establish that Rahul used
the words "I have made careers of those people who
are with me and people have made it big because of
my support and push" and "I have done a lot for my
people career wise and moneywise". Vijayshree in
her complaint has stated that "I do not have any
witnesses for incidents 2 & 3 as these were verbal
conversations in Rahul's cabin between just him and
me."
RCA DJ - 2/19 Page No. 2 of 32
3. The appeal was filed averring that the final report is not
as per the Vishakha Guidelines and the same was in gross
violation of POSH Act. Another point raised was that the ICC has
no jurisdiction to proceed with the complaint and the proceedings
were conducted in violation of principals of natural justice.
4. The brief facts mentioned in the appeal are as follows:-
(a) The Appellant is a seasoned HR professional having
over 25 years of experience in the industry and is well
known in the fraternity for her accomplishments and
credentials. In October, 2016, the Appellant was offered
employment by the Respondent No.1 vide employment
letter dated October 18, 2016 ("hereinafter referred to as
"employment letter") and accordingly the Appellant
joined the Respondent No.1 as India HR Leader on
December 1, 2016.
(b) That, since the time of joining, the Appellant had been
carrying out her work diligently and had shown
dedication and loyalty towards the Respondent No.1 on
numerous occasions. For the said reasons, the Appellant
had received various appreciations from time to time by
Respondent No.2 and TrueBlue Inc. As stated above,
Respondent No.2 is the Partner/India Leader of
Respondent No.1 and responsible for the day to day
affairs and management of Respondent no. 1 India
operations. The Respondent No.1 is a Limited Liability
Partnership firm and an affiliation of People scout.
TrueBlue Inc. is a company having its headquarters in
United States and is engaged in providing staffing, on-
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site workforce management and recruitment process
outsourcing services. TrueBlue Inc. operates through
three segments: People Ready, People Management and
People Scout.
(c) That, since March 2017 she was subjected to sexual
harassment, consistent unprofessional and personal
attacks by the Respondent No.2. The sexual harassment
followed by hostility and isolation continued over a
considerable period of time, despite the Appellant's
repeated requests followed by stern warnings to
Respondent No.2, the Appellant had no option but to
raise the concerns. Accordingly vide emails dated April
17, 2018 and April 18, 2018, the Appellant raised the
issues and concerns with Andrea Brogger, Vice
President, Garrett Ferencz, Chief Compliance and
Litigation Officer and General Counsel and Randy
Rothschiller, SVP Chief Human Resources Officer, in
relation to the harassment that she was being subjected
to at the hands of Respondent No.2. In the said email,
the Appellant had also stated that she would like her
complaint to be investigated in accordance with the
POSH Act.
(d) That, the Appellant received a response on May 16,
2018 from Ms. Monica Torrezz-Pfisher informing the
Appellant that she is trying to connect with their counsel
to start the ICC process. Meanwhile, the appellant was
sent on leave during the pendency of the investigation
by Ms. Monica Torrezz- Pfisher vide email dated May
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17, 2018.
(e) That, accordingly the Appellant filed a complaint for
workplace harassment with the Respondent No.1 and
sexual harassment under the POSH Act, wherein the
following issues were raised by the Appellant against
Respondent No.2:
On 10th March, 2017, during a lunch break in the
cafeteria, Respondent No. 2 made highly inappropriate and
offending comments about porn videos and other vulgarities to the
Appellant and Ms. Pooja Mehndiratta.
Around 3rd week of March, 2018, Respondent No. 2
mentioned to the Appellant that people in office are talking that he
and the Appellant are having an affair and he further mentioned that
"I hope you understand what I am talking about".
On 23rd March 2018, Respondent No.2 stated to the
Appellant that: "I have made careers of those people who are with
me and people have made it big because of my support and push"
and "I have done a lot for my people career wise and money wise".
(f) That, since the existing committee was conflicted, upon
the Appellant's objections made vide email dated May
22, 2018, the Respondent No.1 constituted a new
committee. Without prejudice to the fact that, in order to
ensure a fair and transparent inquiry, the Respondent
No.1 ought to have referred the Appellant's complaint to
the Local Complaints Committee (hereinafter referred to
as "LCC") since Respondent No.2 is an employer within
the ambit of the POSH Act. However, even the
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constitution of the new committee by the Respondent
No. 1 was in gross violation of the provisions of the
POSH Act. It is pertinent to note that the new committee
comprised of an external member and members who
were the employees of the Respondent No.1 and few
were reporting directly to Respondent No.2. The other
members were neither committed to the cause of women
nor had any experience in social work or any legal
knowledge.
(g) That, in the meantime during the pendency of her
complaint, the appellant's access to the office was
deactivated and she was not allowed to enter the office
premises. Upon enquiring, she was informed by the
admin supervisor in charge, Abhishek that he has been
instructed by the Leadership team to not allow the
Appellant to enter the office. Accordingly, the Appellant
vide email dated May 23, 2018 informed Ms. Monica
Torrezz Pfisher about the above incident.
(h) That, thereafter, Respondent No.2 filed his reply dated
May 31, 2018 to the ICC and accordingly, the Appellant
filed her rejoinder in June 2018.
(i) That, without prejudice to the fact that the ICC lacked
jurisdiction to proceed with the complaint, it is stated
that the manner in which the inquiry has been conducted
by the ICC is shocking. From the records of the inquiry
conducted and the relevant documents/correspondences,
it is evident that the procedure followed by the ICC was
contrary to the applicable guidelines and provisions of
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the POSH Act and the Indian judicial precedents, which
are evident from the below instances:-
(j) As per the guidelines of the Hon'ble Indian courts, the
ICC is obligated to follow a specific procedure. The ICC
ought to have at the initial stages of the proceedings
clearly indicated the procedure/stages that it will follow
along with the time lines, which the ICC failed to do.
Infact, the ICC never framed any charges and proceeded
with the trial without following the procedure. It is
evident from ICC's own email dated June 19, 2018 that
even before meeting the Appellant and recording her
statement they met the witnesses.
(k) That, the ICC without meeting the Appellant and
recording her statement which ought to have been
recorded in the first meeting on June 25, 2018,
proceeded to meet the witnesses and recorded their
statements. Further, what is more shocking is that
without recording the Appellant's statement, completion
of pleadings and providing an opportunity of hearing to
the Appellant as well as the Respondent No.2, the ICC
concluded (vide their email dated June 26, 2018 sent to
the Appellant) that they did not find any tangible
evidence pertaining to sexual harassment during/after
their investigation. It is glaring to note that the ICC had
reached to the aforementioned conclusion at the initial
stages of the enquiry. This explicitly indicates that the
ICC had pre-determined and prematurely formed an
opinion on the outcome of the inquiry. This conduct of
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ICC alone establishes that the inquiry conducted by the
ICC was unfair, biased and not impartial at all.
(1) That, in the meantime, the Appellant's complaint for
workplace harassment was dismissed by the Respondent
No.1 via email sent by Monica Torrez- Pfister on June 7,
2018. The inquiry into the said incident was carried out
without recording the statement of the Appellant,
without providing her with the copy of witnesses'
statement and without providing her an opportunity of
hearing, which is gross violation of the cardinal
principles of natural justice. Accordingly, the Appellant
vide email dated June 8, 2018 expressed her
disappointment to Ms. Monica Torrez Pfister and
requested her to provide her with the finding report and
the supporting documents relied upon. In the response
via email dated June 21, 2018, Ms.Monica Torrez-
Pfister stated that only statement were taken from the
witnesses and they did not ask their legal counsel to
prepare any report. In fact it is to be noted that the
respondent No.I did not even bother to be present during
the recordings of the witnesses statement but completely
relied on their local legal counsel ie SPN legal, which
was highly conflicted since they work closely with
Respondent No.2 and which was already pointed out by
the Appellant couple of times. The Appellant in the said
email also clarified that she was not employed for gain
with any other organization and there was no conflict of
interest, as the restaurants were part of her family
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business which were actively run by her husband. That,
the Appellant was shocked and surprised when Ms.
Monica Torrez Pfister vide email dated June 21, 2018
informed the Appellant that neither the witnesses'
statements were officially signed and recorded nor the
final report was prepared, as in their view it was not
warranted.
(m) The guidelines mandate that the ICC shall record all the
proceedings in writing and the proceedings shall be
endorsed by the person concerned as well as the
committee members present in token of authenticity
thereof. It further provides that in case the minutes
cannot be reduced in writing the same day, audio
recording of the proceedings be made and the written
proceedings will be authenticated on the next available
opportunity. However, the fact remains that the ICC was
not recording any proceedings and it was notified to the
ICC by the Appellant vide email dated June 29, 2018
and on various other occasions. Further, the Appellant
was not even provided with the statement of the
witnesses in order to enable her to cross- examine them,
which is evident from the Appellant email dated June
29, 2018.
(n) The ICC recorded the witnesses' statement even before
recording the statement of the Appellant. The ICC even
proposed to the Appellant to get her statement recorded
in the presence of Respondent No.2 (accused) even
though it is prohibited under the law, which is evident
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from ICC own admission vide email dated July 9, 2018.
The Appellant objected to the above vide email dated
July 11, 2018. The ICC, as an after-thought, vide
aforementioned email dated July 12, 2018 informed the
Appellant that no statements of the witnesses would be
relied upon by the ICC unless the Appellant is provided
an opportunity to examine them.
(o) It was only after the Appellant's repeated requests that
the ICC started recording the proceedings in writing.
However, even after raising the objections, on various
occasions, the minutes were not recorded on the same
day and were shared with the Appellant after a lapse of
2-3 days without any endorsements. Further, on various
occasions, the ICC either recorded incorrect minutes of
the proceedings or did not record the entire proceedings.
In fact during the proceedings, the Appellant had to
consistently rectify the Minutes of Meeting (hereinafter
referred to as "MOM") made by the ICC as either it was
recorded incorrectly or important and relevant material
was being missed out. At times, the Appellant was
compelled by ICC to sign incomplete statements in the
absence of the external member (Ms. Rupinder) and
hence had to insist on submitting a handwritten
statement. In fact the ICC proceedings continued despite
the external member's absence. These concerns were
raised by the Appellant with ICC vide her email dated
July 17, 2018.
(p) That, considering that there were various incidents
RCA DJ - 2/19 Page No. 10 of 32
which indicated to the Appellant that the inquiry
conducted by the ICC is not fair and unbiased, the
Appellant raised her concerns again with Ms. Monica
Torrez-Pfisher and Ms. Andrea Bogger vide her email
dated July 20, 2018. In the said email, the Appellant
categorically stated about her concerns regarding the
inquiry and accordingly had informed them that it will
be appropriate to consider referring the complaint to an
external government body/agency. However, her request
was not paid heed to and the Respondent No. I
continued with the ICC proceedings.
(q) The Appellant was being forced by the ICC to sign a
statement that there was no sexual
misconduct/harassment on the part of Respondent No.2
and the concern was raised in her email to the ICC dated
July 23, 2018 wherein the Appellant had mentioned that
she was being coerced into making statements Sinha,
Mr. S Pandey, Advocates for appellant which are untrue
and also via her email dated July 24, 2018 wherein she
has notified ICC that it has submitted to her incomplete
and incorrect MOM and again requested for
arrangements to be made for the MOM to be accurately
captured.
(r) The relevant guidelines envisage that the Respondent
No.2 shall have no right to directly cross-examine the
aggrieved women or her witness directly and they can
be cross-examined by the Respondent No.2 through
questionnaire. Nevertheless, ICC itself was consistently
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compelling the Appellant to have a face to face meeting
with the Respondent No.2 despite several requests from
the Appellant that she does not wish to meet Respondent
No.2 as also mentioned in her mail dated July 23, 2018.
In fact, the ICC also did not object to the Respondent
No.2's request to be present in person during the
recording of the Appellant's statements, which the
Appellant rightfully refused. The aforesaid is evident
from ICC's own email dated July 21, 2018.
5. The facts of the ICC was assailed on the ground that ICC
failed to consider implied or overt promise of preferential treatment
in her employment; implied or overt threat of detrimental treatment
in her employment; implied or overt threat about her present or
future employment status; conduct of any person which interfered
with her work or creates an intimidating or offensive or hostile
work environment for her; humiliating conduct constituting health
and safety problems for her; implied or express threat about her
present or future employment status; creating a hostile, intimidating
or an offensive work environment; creating a hostile, intimidating
or an offensive work environment; or humiliating treatment likely
to affect her health or safety.
6. It was further stated that the appeal was filed in Hon'ble
High Court vide writ petition no.2963 of 2019 but the same was
allowed to be dismissed as withdrawn vide order dated 26.03.2019
giving 15 days time to file the appeal and the present appeal was
presented on 04.09.2019 so the question of limitation cannot be
raised.
7. It was further averred that the respondent no.2 was an
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employer within the ambit of Section g of Section 2 of the PoSH
Act. Hence, the ICC had no jurisdiction and ICC was obligated to
refer the appellant's complaint to LCC, which they failed and the
appellant has raised question regarding the conduct of ICC in
internal proceedings and lastly it was averred that appeal be
accepted and order dated 14.08.2018 passed by ICC be set aside
and it was further prayed that her complaint be sent to LCC and it
be held that the termination of the appellant is illegal and arbitrary.
8. To substantiate her case appellant relied upon following
case laws:
a) Sneha Chaudhary v. Sahitya Akademi & Ors.
(2021) SCC OnLine Del 4790;
b) Rashmi Singh, wife of Dr. Amitabh v. The
State of Bihar through the Chief Secretary,
Government of Bihar, Patna & Ors. (2013)
SCC OnLine Pat 1278;
c) State of Haryana v. Ratan Singh (1977) 2 SCC
491;
d) Aatmaram Chapa Sandanshiv v. Shamshad
Bashir Shah (2008) 5 AIR Bom R 205.
9. The notice was issued to respondent no.1 and 2 who
filed the reply separately. It has been replied by the respondent no. 1
that that the present appeal is not maintainable on the grounds of
facts and deserve to be dismissed. The respondent has denied the
facts and submitted that it has filed a separate application seeking
deletion of its name from the array of parties.
10. It is further averred that once the ICC commenced its
proceedings in terms of the Act the respondent had no authority or
legal sanctity to interfere in the ICC proceedings. It is further
submitted that the appellant is guilty of suppression and
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concealment of material facts and has chosen to challenge the
jurisdiction of the ICC in this Appeal after having herself submitted
her complaint to the ICC. It is further submitted that the appellant
herself opted to go on sick leave on 7 th May, 2018 which was even
prior to the filing of her complaint dated 22.05.2019.
11. It is further submitted that appellant vide her complaint
dated 22.05.2018 raised an objection with regard to the constitution
of the ICC but no objection was raised by her regarding jurisdiction
of ICC. It is submitted that during the pendency of the proceedings
the appellant did not withdraw her complaint from the ICC with
liberty to file a fresh complaint before the LCC. Further, it was only
after about a month and a half from the commencement of the ICC
proceedings that the appellant raised her concerns vide email dated
20.07.2018 addressed to respondent no.1 stating that it may be
appropriate to consider the handling of her complaints by an
external government body/agency.
12. All the alleged acts of sexual harassment relate to the
respondent no.2 and even as per the appellant's own version, neither
has the respondent no.1 had any part or participation therein nor did
such alleged acts ever take place in its presence. It is further
contended that without prejudice to the above submissions it is
submitted that the averments regarding the alleged sexual
harassment relate to respondent no.2 regarding which it is
submitted that the answering respondent has always maintained
complete objectivity and continues to do so. And lastly, that the
present appeal is not maintainable and deserves to be dismissed
with exemplary cost as the appellant has raised false and frivolous
pleas, knowing fully well that they are not tenable owing to ulterior
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motives and with a view to harass the answering respondent.
13. The respondent no. 2/ Sh. Rahul filed reply to the appeal
filed by the appellant, wherein it is submitted that the findings
given by the ICC are correct and undisputed since there was never
any act of harassment as alleged by the Appellant nor was there
ever any act of sexual harassment at the workplace as alleged by the
Appellant by the Respondent No. 2, who is a thorough professional
and always maintains a respectful and professional conduct,
upholding the highest standards of ethics while discharging his
duties as required by his employer i.e. the Respondent No. 1.
14. That the facts put forth by the Appellant before this
Hon'ble Court have been wrongly portrayed in order to mislead this
Hon'ble Court. In this regard, it is imperative to draw this Hon'ble
Court's attention to the background provided by the Respondent No.
2, in the final submissions filed by him before the ICC.
15. Respondent no. 2 further contended that the case of the
appellant herself is fraught with ambiguities, contradictions and
improvements. It is evident from the chain of events and material on
record that prior to filing her complaint of sexual harassment dated
May 22, 2018, before the ICC, the Appellant sent emails dated April
17, 2018 and April 18, 2018 to senior officials of the employer i.e.
the Respondent No. 1, making allegations of workplace
harassment". It is pertinent to note that nowhere in the aforesaid
emails is there even a whisper of any alleged sexual harassment,
which even as per the Appellant's own version, are alleged to be of
dates prior to the said emails.
16. Respondent no. 2 further contended that the Appellant is
guilty of suppression and concealment of material facts as she has
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not disclosed various material facts before this Hon'ble Court
including the fact that at the time of filing of complaint, she was not
only the India HR leader of the Respondent No. 1, but was also the
Presiding Officer of the ICC. The Appellant, holding these posts,
was not only well acquainted with matters related to sexual
harassment but also the legal position under the Act, including the
procedural and other aspects of the ICC.
17. The respondent no. 2 further contended that the filing of
the complaint of sexual harassment by the Appellant was nothing
but a desperate and lowly act on the part of the Appellant to save
her job and career, owing to her declining work performance. It was
in her email, dated May 07, 2018, that the Appellant made certain
allegations of sexual harassment against the Respondent No. 2 to
the Respondent No. 1/ the employer. Even in this said email the
Appellant specifically stated that she could not recall the date or
even the month of the alleged incident of 2017. However, thereafter,
in her complaint to the ICC dated May 22, 2018, the Appellant
improvised on her version and provided a specific date and month
with respect to this alleged incident. With respect to the other two
allegations as well, the material improvements made by the
Appellant are evident from the record.
18. Further respondent no. 2 contended that had there been
any genuine apprehensions in the mind of the Appellant relating to
the jurisdiction of the ICC, the Appellant would have raised them at
the very threshold in the same manner as she had objected to the
erstwhile constitution of the ICC. It is ironical that the Appellant is
raising the plea of lack of jurisdiction of the 1CC at this belated
stage after herself consciously making the complaint to the ICC and
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fully participating in its proceedings. Further, at the time of filing of
the complaint, the Appellant had objected to the constitution of the
ICC, however, never did she raise any objection with regard to the
jurisdiction of the ICC. It was only after the findings of the ICC
were not given in her favour. It is settled law that litigants cannot be
allowed to engage in forum shopping and that any attempt at forum
shopping must be crushed with a heavy hand.
19. Respondent no. 2 in his reply further contended that the
ulterior motive of the Appellant is further evident from the legal
notice dated October 30, 2018, served by the Appellant through her
lawyers, whereby the Appellant demanded the reinstatement of her
services, rendering of an unconditional apology and payment of a
sum of Rs. 50,00,000/- Even at that stage, after the conclusion of
the proceedings of the ICC and the findings rendered thereon, the
Appellant made no whisper of any alleged lack of jurisdiction of the
ICC and now the Appellant has filed this Appeal with frivolous
objections, just with a view to defame and harass the Respondent
no. 2 and so as to extract huge sums of money.
20. That with regard to the plea of the Appellant that the
ICC had no jurisdiction is writ large from the fact that complainant
in her complaint dated May 22, 2018, did not mention the
respondent no. 2 being an 'employer' within the meaning of the Act.
She did not take this plea prior to filing appeal, rather she was
knowing fully well that the respondent no. 2 is not an employer and
thus consciously and deliberately filed her complaint with ICC. It is
contended that the Respondent No. 2 was an employer within the
meaning of the Act and the ICC had the jurisdiction to inquire into
complaint and there is nothing on record to indicate the factual
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basis for challenging the jurisdiction of the ICC.
21. It is not the case of the appellant that she raised the
grievance regarding the ICC's lack of jurisdiction before the ICC or
that the ICC dismissed any such grievance. Even during the course
of the proceedings, it was open to the Appellant to withdraw her
complaint from the ICC at any point of time, with liberty to file a
fresh complaint before the LCC, if she would have genuine
apprehensions that the ICC hacked the jurisdiction. The Appellant
neither highlighted any apprehension before the ICC, nor requested
for the withdrawal of her complaint, and neither did she approached
any Court for issuing a writ of prohibition refraining the ICC to
proceed with the complaint, rather she participated in the ICCs'
proceedings till they were concluded. Subsequently, appellant sent a
legal notice making monetary and other demands post dismissal of
her complaint by the ICC.
22. The alleged incident of March 16, 2017 referred to by
the Appellant in her first email dated April 17, 2018 was relating to
the issue of office discipline and marking incorrect attendance,
which was discussed by the Respondent No. 2 in a staff meeting
and being aggrieved of the same, appellant devised a false
complaint dated March 10, 2017 of alleged pornographic comment
in her complaint of sexual harassment. Rather, the before the ICC,
respondent no. 2 had been successful to prove that he had never
been to Thailand.
23. It has been further contended that the remaining two
alleged incidents that have been alleged by the Appellant in her
complaint have also been falsely concocted by the Appellant, so as
to bring her complaint within the statutory period as laid down by
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the Act, as the Appellant, being the India HR leader of the
Respondent No. 1 as well as the Presiding Officer of the ICC was
fully aware that no complaint could have been made in May 2018
with regard to an alleged incident of March 2017, unless she
concoct a false story.
24. The respondent no. 2 further contended that he has never
committed any alleged act of any kind of harassment whatsoever
and further requested to dismiss the present appeal with exemplary
cost in favour of respondent no. 2 and restrain the appellant from
defaming the respondent no. 2.
25. To strengthen their arguments, Respondents also relied
upon following case laws:-
a) Dipankar Chakraborti & Anr. v. State of West
Bengal & Ors. 2020 SCC OnLine Cal 2112;
b) David G. Samuel v. Collector/District Magistrate,
Pune & Ors.,
c) Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur
University & Ors., 2014 SCC OnLine Bom 814;
d) Rashi v. Union of India & Ors., WPC No. 3396/2019,
decided on 04.12.2020;
e) Sumana Bhowmick v. The Union of India & Ors. And
Balmer Lawrie & Co. Ltd. v. The Deputy Chief
Labour Commissioner (Central) & Ors, WPA no.
11842/2019, decided on 03.02.2023;
f) Manjeet Singh v. Indraprastha Gas Limited, WPC No.
6352/2016, decided on 24.10.2016;
g) Bidyug Chakrabory v. Delhi University & Ors. WPC
No. 8226/2007, decided on 29.05.2009;
h) Banani Chattopadhyay v. Union of India & Anr., 2022
SCC OnLine Cal 3592;
26. The appellant thereafter filed rejoinder to the reply of the
respondents wherein all the contents of the reply were denied and
the facts of the appeal were reiterated and reaffirmed as correct and
RCA DJ - 2/19 Page No. 19 of 32
it is prayed that an order be passed in favour of the appellant.
FINDINGS:-
27. I have heard Mr. Shwetabh Sinha, ld. Counsel for
appellant, Mrs. Nandita Rao, ld. Cousel for respondent no. 1 and
Sh. Rajiv Agarwal, ld. Counsel for respondent no. 2, perused the
material available on record. The arguments of the appellant can be
summoned up on three points which are as follows:
1) Whether the respondent no. 2 is employer within the
definition of Section 2 (g) of POSH Act, 2013? If so;
2) Whether the complaint of the complainant was required to
be sent to LCC by the respondent no.1?
3) Whether the findings of the ICC are arrived at in based
manner, giving preferential treatment to the respondent
no. 2 and in gross violation of POSH Act, 2013 on the
grounds mentioned in the appeal.
28. Though, the respondents have also raised the question of
limitation that the appeal is highly time barred, but keeping in view
the directions vide order dated 26.03.2019 made by Hon'ble High
Court of Delhi in WPC no. 2936/2019, I am not inclined to hear the
same. On this issue when certain time limit was granted by the High
Court and the same has been duly complied with, the question of
limitation cannot be raised. Though, the respondents have stated
that they were not present before the High Court, but then in that
case, they should have approached the appropriate forum for
redressal of their grievance and now, they cannot raise this issue
before this court.
29. Now, I will deal with the point bit by bit. Firstly whether
the respondent no. 2 is employer. Before proceeding further, I
would like to rely upon the observations made by Hon'ble High
RCA DJ - 2/19 Page No. 20 of 32
Courts and Apex Court on this point. The appellant has relied upon
Sneha Chaudhary v. Sahitya Akademi & Ors. (supra) to say that
it is not the ICC but only the LCC has the jurisdiction to look into
the matter of Sexual Harassment at Workplace once the complaint
is against the employer, but this judgment has been dealt with by
the Division Bench of Hon'ble High Court of Delhi in LPA No.
433/2021, whereby the order of Ld. Single Judge has been set aside
and the matter has been remanded back to the ld. Single Judge.
Complainant had gone to Supreme Court in Civil Appeal No.
2920/2022, wherein the discussion made in the judgment were not
dealt with by the Hon'ble Supreme Court, rather, it was mentioned
that the same must not be treated as having been pronounced on the
merits of the case.
30. So, this court cannot rely solely on this judgment. The
same has been gone through and observations made by Hon'ble
Justice Sanjiv Sachdeva have been kept in mind and applied as per
the facts of the case. It has to be seen that who is the employer in
the present case. The Hon'ble High Court in the case of David G.
Samuel (supra) has held that for the purpose of employer u/s 2 (g)
of the POSH Act, one has to show that the accused person alone is
responsible for the management, supervision and control of the
workplace. Further in the case of Rashi (supra) the Hon'ble High
Court has stated that the employer is the person with whom the
power of appointing the ICC is vested. In the present facts and
circumstances, the respondent no. 2 is not the sole person
responsible for the management, supervision and control of the
company, but he is merely a designated partner. Further, the page
no. 65 of the reply to the appeal filed on behalf of respondent no. 1
RCA DJ - 2/19 Page No. 21 of 32
clearly depicts that the revised salary of respondent no. 2 was fixed
by complainant and the same is signed by her. The complainant has
argued that this was because of her capacity as HR, she had signed
it. Though, even for the sake of arguments, this document is not
considered as such but still from this one thing it is clear that
complainant was neither working as superior, nor subordinate to
respondent no. 2. Constitution of the management is also placed on
the record whereby two independent entities have created one LLP,
which has the ultimate power and control over the respondent no. 2
and the complainant. Moreover, it is the parent company Trueblue
Netherlans I, BV situated in USA, which has constituted ICC in the
present case. It is worthwhile to mention here that it is not disputed
that earlier ICC was chaired by the complainant, but now because
she was at the receiving end and a harassed woman under the Act,
so the new ICC committee was constituted.
31. Respondent no. 2 has admitted to be a salaried
employee. Mere reliance of the complainant that Respondent no. 1
assigned various roles to respondent no. 2, will not take away his
position as to be of employee rather than of employer. Certain
responsibilities were performed by him as a designated partner and
the same will not give him the power of employer which still vests
in the two original companies alongwith the respondent no. 1. The
Limited Liability Partnership Agreement (hereinafter referred to as
"LLPA") dated 01.06.2016 is exhaustive and the reliance upon
various clauses are not helpful to the complainant to show that he
was employer.
32. Moreover, during the course of arguments, it was
admitted by the counsel for the complainant that she was appointed
RCA DJ - 2/19 Page No. 22 of 32
in service prior to respondent no. 2 by the parent company Trueblue
Netherlans I, BV situated in USA and both of them were reporting
to the parent company in USA. The respondent no. 2 had no power
to appoint and terminate the complainant. Rather her post was
abolished later on not by respondent no. 2, but by the actual
employer i.e. respondent no. 1. So, in these circumstances and
relying upon the judgments filed by respondents i.e. David G.
Samuel; Jaya Kodate; Rashi and Union of India & Ors. (supra), it is
clearly made out that respondent no. 2 was not employer and the
judgments relied upon by the complainant of Sahitya Academy
(supra) is on the other point wherein officer charged was Secretary
who was at the helm of the affairs of the academy. Accordingly, this
point is decided against the complainant and in favour of the
respondent no. 2.
33. Coming to the second point i.e. whether the complaint of
the complainant was required to be sent to LCC by the respondent
no.1. Since, the complainant has raised issues with regard to
constitution and jurisdiction of the ICC as well as transfer of her
complaint to LCC, therefore it would be appropriate to go through
the mandate of law which is required to be put hereunder:-
"6. Constitution and jurisdiction of :- (1) Every
District Officer shall constitute in the district
concerned, a committee to be known as the "1
[Local Committee]" to receive complaints of sexual
harassment from establishments where the 2
[Internal Committee] has not been constituted due to
having less than ten workers or if the complaint is
against the employer himself.
(2) The District Officer shall designate one nodal
officer in every block, taluka and tehsil in rural or
tribal area and ward or municipality in the urban
RCA DJ - 2/19 Page No. 23 of 32
area, to receive complaints and forward the same to
the concerned [Local Committee] within a period of
seven days.
(3) The jurisdiction of the [Local Committee] shall
extend to the areas of the district where it is
constituted.
................
9. Complaint of Sexual Harassment:- (1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:
Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:
Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months , if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.
(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section."
34 Once, it has been opined that the respondent no. 2 was not employer as per section 2(g) of the Act, rather he was merely an employee of respondent no. 1 then ICC has all the jurisdiction to deal as well as decide the complaint. Even otherwise it has also come on record that the objection pertaining to the jurisdiction of RCA DJ - 2/19 Page No. 24 of 32 ICC was raised at the fag end when almost the complete trial was over. The date of filing of complaint before the ICC is 02.06.2018 and the ICC came up with the findings on 14.08.2018, however, the appellant prayed for the first time to send the matter to LCC on 20.07.2018. Meaning thereby that she has participated all along in the proceedings and suggested to consider handing over her complaint to an external governing body. It is important to note that no where she has specifically prayed to the ICC for transferring her complaint to the LCC, but only suggestion was given.
Doctrine of Election: -
35. Doctrine of election was available to complaint, but she has not chosen the LCC. The complaint was addressed to company, ICC was formed and now it does not lie in her mouth to wriggle out of the same. Even otherwise, in the light of the findings on the first point i.e. the ICC has jurisdiction to deal with the complaint of the complainant as the Respondent No. 2 is not a "employer" as per the definition of Section 2(g) of the POSH Act.
36. From the above admitted position it emerges that the complaint vide email dated 14.05.2018, at Page No. 89 of the Appeal, confirmed that she would like to proceed her complaint through the ICC. Meaning thereby, that the appellant herself has chosen the forum of ICC for her complaint pertaining to sexual harassment at workplace. It is also not in dispute that the appellant was the Presiding Officer of the erstwhile ICC and have knowledge about the jurisdiction and the law pertaining to the POSH Act, 2013. At the time of constitution of the ICC committee, the appellant vide email dated 22.05.2018, at Page No. 95 of the appeal, RCA DJ - 2/19 Page No. 25 of 32 raised objections pertaining conflicted members and after the constitution of new Internal Committee took place, the appellant duly participated in the ICC proceedings. Moreover, vide email dated 07.06.2018 at Page No. 49 of the Appeal, the appellant stated to the ICC members that she still has full faith in the organization and requested them to look into her complaint and all the evidence presented and conduct a proper enquiry into her complaint.
37. Ld. counsel for the Respondent No. 1 placed reliance upon the judgment of the division bench of Hon'ble Calcutta High Court in Dipankar Chakraborty & Ors vs State Of West Bengal & Ors. (supra), wherein it was held that once the complainant has chosen to file a complaint before ICC and duly participated in the proceedings then the complainant is estopped by the doctrine of election and she can not turn around and argue that the ICC does not have jurisdiction and the proceedings are void ab inito. The relevant portion of the said judgment is reproduced below:
"13. The respondent no. 5 in the present case is also hit by the Doctrine of Election. Having chosen to file a complaint before the institution and participated in the ICC proceedings, the respondent no. 5 cannot now turn around and argue that the ICC proceedings were void ab initio. It would have been a different matter if the respondent no. 5 had raised the point of jurisdiction before the ICC proceedings. That is not the case here. After having elected to participate in the ICC proceedings, the respondent no. 5 further challenged the ICC order before the High Court and when no interim order was obtained by the respondent no. 5 before the High Court, the respondent no. 5 proceeded to file a proceeding before the LCC. This course of action, according to me, is against the principles established in law and hit by the Doctrine of Election. If the result of the ICC proceedings had been in favour of the respondent no. 5, she would not have challenged the same on the ground of the RCA DJ - 2/19 Page No. 26 of 32 same being void and neither could the institution have challenged the same in appeal on the ground of the proceedings being void as the institution itself had set up the ICC proceedings."
Further, in the case of Smt. Sumana Bhowmick vs The Union Of India & Ors, (supra), the division bench of Calcutta High Court has clarified the position that the jurisdiction of ICC has been preserved by the Courts. The relevant portion of the judgemnt is reproduced below:
"...the jurisdiction of ICC has been preserved by the Courts. Usually it is the victim's choice whether or not to approach the ICC. The victim cannot be precluded from approaching the ICC just because an alternative forum is available. On the other hand the victim cannot be forced to agitate her complaint before the ICC when the accused is an Employer within the meaning of the Act."
38. Therefore, the legal position has been clarified by the above cited judgments that firstly it is the choice of the complaint to decide the forum for her complaint to be dealt with. Secondly, once she had chosen the forum and duly participated in the proceedings and cross-examined the witness then she can not back out from the proceedings when the witness are not supporting her statement and the preliminary findings of the committee started going against the complaint. The complainant is estopped by the doctrine of election in such situation.
39. In view of the above, this court is of the opinion that ICC has the jurisdiction to decide the complaint of the appellant since she herself has chosen the forum and duly participated in the proceedings. Therefore, the issue no. 2 is also decided against the complainant/appellant and in favour of the Respondents.
RCA DJ - 2/19 Page No. 27 of 3240. So far as third point/position i.e. Whether the findings of the ICC are arrived at in biased manner, giving preferential treatment to the respondent no. 2 and in gross violation of SHW Act, 2013 on the grounds mentioned in the appeal is concerned, it has been contended by the appellant in her appeal that the ICC has conducted the inquiry in biased manner since the members of the ICC were subordinate and were reporting to the Respondent No. 2.
41. At this point, attention is drawn towards the case of Banani Chattopadhyay vs Union Of India & Ors., (supra), wherein the division bench of Calcutta High Court rejected the contention of the Petitioner that the members constituting the ICC should be of a rank higher than that of the respondent under Section 2(m) of the 2013 Act. The Hon'ble court held that this view can not be accepted in view of the fact that there is no such stipulation in Section 4(2) of the 2013 Act. Moreover, the composition of the internal committee as provided under Section 4(2) of the said Act goes to show that the same consists of internal and external members for facilitating an enquiry under the said Act. Contrary interpretation thereto would lead to disastrous consequences as in that event the ICC would be denuded of its jurisdiction to conduct an enquiry against high officials of an organization.
42. Moving on to the charges leveled against the Respondent No. 2, the following admitted position emerges. The first complaint of the complainant vide email dated 17.04.2018 to the Randy Rothschiller, Andrea Brogger and Garreti Ferencz mentions the workplace harassment alleging therein that she is being subject to workplace harassment at the hands of Respondent No. 2. The initial complaint nowhere hinted, let alone mentions RCA DJ - 2/19 Page No. 28 of 32 about the sexual harassment.
43. On the next day itself, vide email dated 18.04.2018, the appellant raised the complaint of sexual harassment by the Respondent No. 2 to the Randy Rothschiller, Andrea Brogger and Garreti Ferencz, wherein she stated that she does not recall the month or date but during the lunch break in cafeteria, the Respondent No. 2 spoke about his visit to Thailand wherein he made very specific inappropriate comment on the availability of all types of porn videos and other kinds of vulgarities. It was stated that when Respondent No. 2 brought this topic Pooja Mehendiratta was also present and both of them were highly embarrassed and found it inappropriate, offensive and very unprofessional.
44. However, when a formal complaint to ICC was made on 22.05.2018, the appellant stated that the aforementioned incident took place on 10.03.2017. It is not in dispute that the appellant on 10.03.2017 was not even present in office but was on approved leave. Further, the complainant provided a list of witnesses namely Pooja Mehendiratta, in support of her complaint. Ms. Pooja Mehendiratta, in her testimony before the ICC on 25.07.2018 denied happening of any such incident in the first place. The said witness was also duly cross-examined face to face by the appellant herself but nothing came out of it. The relevant excerpts of the cross-examination are reproduced below:
"Ms. Kalon Q: Pooja do you recall the incident around 10th March where Rahul mentioned about porn videos during lunch time in cafeteria. We were quite surprised of the same and discussed this on multiple occasions?RCA DJ - 2/19 Page No. 29 of 32
Pooja Ans. No, nothing like that happened.
Ms. Kalon: I remember this distinctly. So you're saying you do not recall or it never happened?
Ms Pooja Ans.: No it never happened..."
45. From the above testimony, the witness has failed to show any corroboration to the complaint/charges leveled against the Respondent No. 2. The Respondent No. 2 has placed his passport on record which itself shows that he has never made any visit to Thailand till date. Moreover, the ICC members specifically asked the appellant on 05.06.2018 if she was subjected to any inappropriate physical, sexual misconduct, sexual remarks, demand for sexual favors, messages or emails of sexual nature, to which the appellant categorically stated that nothing of this sort ever happened except the incidents as mentioned by her in her complaint.
46. On this point the counsel for the appellant contended that creation of hostile environment for the Appellant by Respondent No. 2 is in itself sufficient for the purpose of "sexual harassment" under Act. The contention of the counsel can not be accepted in view of the definition of "sexual harassment" under section 2(n) of the Act. The said definition is reproduced below:
"(n) sexual harassment" includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:--
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-
verbal conduct of sexual nature;
RCA DJ - 2/19 Page No. 30 of 3247. The definition of sexual harassment, without a doubt, is extensive in nature. At the same time, it is also important to note that qualifying any workplace harassment to sexual harassment, it has to be accompanied with either physical contact and advances or a demand or request for sexual favours or making sexually coloured remarks or showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature. However, no incident of this sort was ever alleged or put forth by the complainant/appellant. Accordingly, keeping in view the above- narrated facts and circumstances of the case, it is held complainant/appellant has failed to establish that the findings of the ICC are arrived at in based manner, giving preferential treatment to the respondent no. 2 and in gross violation of POSH Act, 2013. Hence, third point is also decided against the complainant/appellant and in favour of the respondent no. 2.
48. That the complainant has also prayed that her termination from service be declared as illegal. The said prayer cannot be entertained in the present proceedings. In case, the complainant is interested to challenge her termination from service, she may approach the appropriate forum as available in law, because the services have been terminated by the Respondent no. 1/employer and the charged official has nothing to do with it.
49. Accordingly, it is held that the findings of ICC are not perverse. The present appeal filed under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 read with Rule 11 of the Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Rules, RCA DJ - 2/19 Page No. 31 of 32 2013 filed by the complainant/appellant against the final report dated 14.08.2018 is dismissed, as there is no merit in the appeal.
Appeal file be consigned to record room.
Announced in the open Tribunal on this 05.04.2023 (Ajay Goel) POIT-I/RADC, New Delhi/05.04.2023 RCA DJ - 2/19 Page No. 32 of 32