Karnataka High Court
Intel Technology India (P) Ltd vs Secretary To Government on 14 October, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 14TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE Mr. JUSTICE M.G.S. KAMAL
WRIT PETITION No.22138 OF 2010 (L-RES)
BETWEEN:
INTEL TECHNOLOGY INDIA (P) LTD.,
THROUGH ITS AUTHNORISED SIGNATROY
MS. SONIA S. DEVADATTA
HR LEGAL MANAGER
HR LEGAL ADVISER.
HAVING ITS OFFICES AT:
SURVEY NO.23-56
P-OUTER RING ROAD
DEVERABEESANAHALLI VILLAGE
OUTER RING ROAD
VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 037.
...PETITIONER
(BY SRI. K. KASTURI, SR. ADVOCATE FOR
SRI. CHETHANA DEEPAK, ADVOCATES)
AND:
1. SECRETARY TO GOVERNMENT
LABOUR DEPARTMENT
KARNATAKA GOVERNMENT SECRETARIAT
VIKASA SOUDHA
BANGALORE - 560 001.
2
2. MS. ASHA SATHYANARAYANA
D/O DR. D. SATHYANARAYANA
HINDU, MAJOR
R/AT FLAT NO.G-13
KRYSTAL HALITE PHASE II
BALLANDUR, VARTHUR HOBLI
BANGALORE - 560 037.
... RESPONDENTS
(BY SRI. BHOJEGOWDA T. KOLLER, AGA FOR R1;
SRI. R.B. SADASIVAPPA, ADVOCATE FOR R2)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING CALL FOR THE
RECORDS OF THE PRESENT MATTER FROM THE R1; QUASH AND
SET ASIDE THE ORDER TO 22.05.2010 IN ANNEX-A HEREIN
PASSED BY THE R1, BEING ORDER AND CONSEQUENTLY
DISMISSING/REJECTING THE COMPLAINT PREFERRED BY THE
R2 AS BEING NOT MAINTAINABLE IN LAW AND ON FACTS AND
ETC.
THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Present petition is filed by the petitioner being aggrieved by the order dated 22.05.2010 bearing No.KE/382/IDM/2009 at Annexure-A passed by the respondent No.1, in and by which, the respondent No.1 has granted permission to the Respondent No.2 to proceed to prosecute the petitioner for alleged 3 commission of unfair labour practices under the Industrial Disputes Act, 1947 (hereinafter referred to as the 'ID Act, 1947').
Brief facts of the matter;
1.2 That the petitioner/Company has placed certain policies and process dealing with the employee related issues providing means and access to the employees to raise any grievance or other issues which they may face during the course of their tenure in the petitioner/Company with a view to combat instances of harassment in the Company. The harassment Avoidance Guidelines have also been placed by the petitioner-Company.
1.3 Petitioner company is a reported Multi National Company in the filed of Information Technology & Information Technology Services. That 4 pursuant to the guidelines issued by the Apex Court in the case of VISHAKA AND OTHERS vs. STATE OF RAJASTHAN AND OTHERS reported in (1997) 6 SCC 241, the petitioner/ Company has also set up a committee which is reconstituted from time to time. The constitution of the Committee is also intimated to the office of Deputy Labour Commissioner, Bengaluru. The said Committee consists of four women members and one male member and one external member being familiar with the issues relating to sexual harassment.
1.4. It is further case of the petitioner/Company that the Respondent No.2 was appointed by the petitioner/Company as a Data Base Administrator who subsequently became a Systems Programmer in the Integration Division of the petitioner/Company. Respondent No.2 was also 5 involved in administering and supervising several aspects of a project. In the weekly meeting held by the petitioner/Company regarding performance assessment during the month of November 2004, the Respondent No.2 was advised by her direct Manager- Mr. Rajesh Shenoy to improve her communication skills and management skills, failing which she would be awarded Below Expectation Grade. That on 27.11.2004, Respondent No.2 had sent an E-mail complaining that Mr.Rajesh Shenoy, her direct Manager had showed favoritism towards others in her team whereas she was subjected to bias and the respondent No.2 had sought investigation into her being criticized. That the petitioner/Company had created a mechanism called "Open-door Mechanism"
which permitted employees to raise the grievances at their own options which were then investigated by the petitioner/Company. The guidelines in this regard 6 were also issued by the petitioner/Company setting out the procedure and process involved in the said mechanism. That the Respondent No.2 had indeed raised her issues against her Manager Mr.Rajesh Shenoy before the "Open-door Mechanism" alleging he unfairly rewarding her Below Expectation Grade for the year 2004-2005. The said allegations were investigated by the petitioner/Company and same were found to be unsubstantiated.
1.5. That Respondent No.2 in terms of the Harassment Avoidance Guidelines issued by the petitioner/Company had raised a sexual harassment "open door" complaint with her HR Managers alleging that she was being subjected to sexual harassment by a co-worker -Mr.Amol Gaitonde whom she claimed had made sexual advances towards her especially when they had to stay back in the office after the 7 office hours. She had also alleged that her team members more particularly one Mr.Sachin Ashtikar was generally spreading rumours about her having a relationship with one Mr.Lokesh Vohra. She had alleged that her team was harassing her with personal questions about her relationship with said Mr.Lokesh Vohra, thereby creating hostile environment for her.
1.6. That the investigators of the petitioner/ Company conducted detailed enquiry who examined 11 witnesses including the persons named by the Respondent No.2. It was found that the Respondent No.2 could not provide any specific details of any particular incidents of sexual harassment involving the persons named by her. After the thorough enquiry, the investigators had finally made recommendations and further directed that the Respondent No.2 be counseled and methods of taking immediate action 8 when faced with any harassment instead of delaying such action. Recommendations was also made to issue a written warning and to provide counselling to Mr.Rajesh Shenoy which was duly acted upon by the petitioner/Company.
1.7. That again on 14.05.2007, the respondent No.2 raised another "Open-door complaint" with one Mr.Bhaskar Nagaraja, complaining that she had received follow-up E-mails from an unanimous source and asked him to investigate the same. The respondent No.2 had alleged that the said unanimous person harassing her could be one Mr.Som Ghosh, a co-worker. An investigation was also made into the said allegation and found that the E-mails were not sent from anybody using Intel network but from external source. It was further found that the allegations against the said Som Ghosh were baseless. 9 That the Respondent No.2 was satisfied with the outcome of the investigations, as she did not challenge the findings before any forum or authority.
1.8. That on 25.07.2007, Respondent No.2 had complained to her Manager during a weekly meeting that she allegedly felt depressed and suicidal. It was alleged that the said depression was for the reason of pressure of having to find a spouse. The said issue was taken up with the Work Place Response Team consisting of four members. Upon the recommendation of the said team, the petitioner/Company had appointed a medical practitioner, namely, Dr.Stock who recommened that the Respondent No.2 be assessed local independent practicing psychologist to determine the severity of the symptoms of Respondent No.2. Pursuant to the said report and recommendation, the 10 petitioner/Company additionally sought opinion of one Dr.Kodanda Ram, an independent Practitioner in Psychology working at Lokhade Hospital, Bangalore, who after examining Respondent No.2, submitted a report stating that Respondent No.2 was suffering from mild depression, anxiety and obsessive personality. It was further opined that the Respondent No.2 was not at risk at workplace and was fit to continue her duties, but required counseling to over-come her psychological disabilities. The petitioner/Company had written a communication to the Respondent No.2 to adhere to her counseling schedule.
1.9. That during October 2007, the petitioner/Company had introduced voluntary separation Programme (VSP) for its employees which provided enhanced separation benefits. As per the 11 policy of the petitioner/Company amongst others, Respondent No.2 was also informed about the introduction of the VSP scheme by letter dated 19.10.2007. In response thereof, the Respondent No.2 by letter dated 22.10.2007 informed the Company of her desire to opt the said VSP scheme. The Respondent No.2 had affirmed about her understanding of the scheme that she would not be entitled to withdraw from the scheme once accepted. Respondent No.2 thereafter opted for the aforesaid Voluntary Separation Package by resigning from her employment. She had requested the petitioner/ Company to relieve her from her current duties effective from 31st October 2007 which was accepted by the petitioner/Company and she was relieved from her services. The petitioner/Company paid Rs.3,59,308.92 towards full and final settlement of her entitlement.12
1.10. That after two months of acceptance of her resignation, Respondent No.2 caused issuance of a notice dated 07.01.2008 through her counsel calling upon the petitioner/Company to supply copy of the entire enquiry proceedings with regard to her complaint of work place harassment and also the medical report. The reply was issued by the petitioner/Company. Thereafter, Respondent No.2 instituted a complaint dated 05.04.2008 before the Assistant Labour Commissioner, Bengaluru, seeking initiation of action against the petitioner/Company for alleged commission of unfair labour practices under Industrial Disputes Act, 1947. The petitioner/Company filed its detailed reply including questioning the very maintainability of the complaint on the premise that Respondent No.2 no longer being an employee of the petitioner/Company. The Assistant Labour 13 Commissioner proceeded to issue a report dated 26.02.2009 to the Respondent No.1 stating that the Respondent No.2 should be permitted to file a case against petitioner/Company. Consequently, a show- cause notice dated 07.10.2009 was issued to the petitioner/Company seeking an explanation as to why Respondent No.2 should not be permitted to register a case of unfair labour practices under Section 25(T) of the Industrial Disputes Act,1947 against the petitioner/Company. The petitioner/Company filed detailed reply to the same. However, without considering the objections of the petitioner/Company, Respondent No.1 proceeded to pass the impugned order constraining the petitioner to approach this Court.14
2. Sri.K.Kasturi, learned Senior counsel appearing for the petitioner reiterating the grounds urged in the memorandum of petition submits;
2.1. that at the outset the impugned order is not maintainable, inasmuch as the sanctioning of the prosecution is against an unnatural person namely, the petitioner/company herein, while the allegation made by the Respondent No.2 in her complaint is against the co-worker and the superiors of the establishment. Assuming even if the prosecution is given effect, it leads no where as the person against whom the prosecution is intended is ambiguous and undefined.
2.2. He further submits that the term "sexual harassment" is not defined under the ID Act, 1947 and is also not included in the list of unfair labour practices as provided under Fifth Schedule of the ID 15 Act, 1947. Thus, he submits that the absence of the clear provision in the ID Act, 1947, the allegation of sexual harassment under any circumstances cannot construed as unfair labour practice falling within the frame work of the ID Act, 1947.
2.3. Referring to the Notification issued by the Government referred to in the impugned order dated 22.05.2010 at page No.38, para '(§)', he submits that the same has no application and in any event would not lend to any credence to include the same within the definition of 'sexual harassment'.
2.4. Referring to Section 40 of the ID Act, 1947 learned Senior counsel further submits that the power to amend the schedules to the Act is given to the appropriate authority only in respect of Schedules I, II and III and that the Legislature in its wisdom has 16 consciously kept Fifth -Schedule outside the power of amendment by the appropriate authority. He submits that in view of a special legislation namely, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 having been promulgated the grievance of the respondent No.2 can be adjudicated thereunder. He also submits that Section 18 of the said Act, 2013 further provides an alternate and effective remedy in the nature of appeal, if respondent is aggrieved by the any finding given by the enquiry committee.
Hence, he submits for the aforesaid reasons the petition be allowed and impugned order be set aside.
3. On the other hand, Sri.R.B.Sadashivappa, learned counsel appearing for the respondent No.2 submits 17 3.1. that the overall conduct of the petitioner /company has to be taken into consideration. He also submits that the inaction on the part of the petitioner/company in not taking effective steps in curbing the incidents of sexual harassment at its workplace would certainly fall within the ambit of the definition of unfair labour practices provided under the ID Act, 1947.
3.2. He submits that considering the sensitivity of the issue, same may have to be included within the ambit of 'unfair labour practice' and the impugned order is thus in consonance with this principles, consequently, leading to sanctioning of the prosecution which is just and proper under the facts and circumstances of the case warranting no interference. Hence, seeks for dismissal of petition. 18
4. Heard learned counsel for the parties and perused the records.
5. The point that has arise for consideration in this writ petition is;
"(1) Whether the complaint alleging
Sexual harassment made by the
respondent No.2 amounts to commission of unfair labour practices as provided under the ID Act, 1947?" and (2) Whether the impugned order passed by the respondent No.1 granting permission to the respondent No.2 to proceed to prosecution that the petitioner/company for the alleged commission of unfair labour practices under the ID Act, 1947 warrants interference?".
6. There is no dispute with regard to the fact that the respondent No.2 was an employee of the petitioner/company and she had relinquished her office by opting voluntary separation program effective from 31.10.2007 and upon her claim being fully and finally settled by the petitioner/company. 19 The present complaint was admittedly filed by the respondent No.2 before the Assistant Labour Commissioner, two months subsequent to her relieving from the employment.
7. Before adverting to the facts of the case, it is appropriate to refer to definition of "Unfair Labour Practice" as provided under Section 2(ra) of the ID Act, 1947, which is as under;
"2. Definitions.-
(a) to (r) xxx "(ra) "Unfair labour practice" means any of the practices specified in the Fifth Schedule;"
8. Fifth Schedule to the said ID Act, 1947 enlists various items which would fall within the definition of 2(ra) as "unfair labour practice". 20
9. Fifth Schedule of the ID Act, 1947 is extracted hereunder;
I- On the part of employers and trade unions of employers
1. To interfere with, restrain from, or coerce, workmen in the exercise of their right to organise, from join or assist a trade union or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, that is to say-
a) Threatening workmen with discharge or dismissal, if they join a trade union;
b) threatening a lock-out or
closure, if a trade union is
organised;
c) granting wage increase to
workmen at crucial periods of trade union organisation, with a view to undermining the efforts of the trade union organisation.
2. To dominate, interfere with or contribute support, financial or otherwise, to any trade union, that is to say-
a) An employer taking an active interest in organising a trade union of his workmen; and
b) An employer showing partiality or granting favour to 21 one of several trade unions attempting to organise his workmen or to its members, where such a trade union is not a recognised trade union.
3. To establish employer sponsored trade unions of workmen
4. To encourage or discourage membership in any trade union by discriminating against any workman, that is to say-
a) Discharging or punishing a workmen, because he urged other workmen to join or oranise a trade union;
b) Discharging or dismissing a workman for taking part in any strike (not being a strike which is deemed to be an illegal strike under this Act);
c) Changing seniority rating of
workmen because of trade union
activities;
d) Refusing to promote
workmen to higher posts on
account of their trade union
activities;
e) Giving unmerited promotions
to certain workmen with a view to
creating discord amongst other
workmen, or to undermine the
strength of their trade union;
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f) Discharging office -bearers or
active members of the trade union
on account of their trade union
activities.
5. To discharge or dismiss
workmen-
a) by way of victimisation;
b) not in good faith, but in the
colourable exercise the eomplyer's rights;
c) by falsely implicating a workman in a criminal case on false evidence or on concocted evidence; d) for patently false reasons; e) on untrue or trumped up allegations of absence without leave; f) in utter disregard of the
principles of natural justice in the conduct of domestic enquiry or with undue haste;
g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record or service of the workman, thereby leading to a disproportionate punishment.
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6. To abolish the work of a regular nature being done by workmen, and to give such work to contractors as a measure of breaking a strike.
7. To transfer a workman mala fide from one place to another, under the guise of following management policy.
8. To insist upon individual workmen, who are on a legal strike to sign a good conduct bond, as a pre-condition to allowing them to resume work.
9. To show favouritism or partiality to one set of workers regardless of merit.
10. To employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.
11. To discharge or discriminate against any workman for filing charges or testifying against an employer in any enquiry or proceedings relating to any industrial dispute.
12. To recruit workmen during a strike which is not an illegal strike.
13. Failure to implement award, settlement or agreement.
14. To indulge in acts of force or violence.
15. To refuse to bargain collectively, in good faith with the recognised trade unions. 24
16. Proposing or continuing a lock -out deemed to be illegal under this ACT. II. On the part of workmen and trade unions of workmen
1. To advise or actively support or instigate any strike deemed to be illegal under this Act.
2. To coerce workmen in the exercise of their right to self-organisation or to join a trade union or refrain from joining any trade union, that is to say-
a) for a trade union or its
members to picketing in
such a manner that non
striking workmen are
physically debarred from
entering the work places;
b) to indulge in acts of force or
violence or to hold out
threats of intimidation in
connection with a strike
against non-striking
workmen or against
managerial staff.
3. For a recognised union to refuse to
bargain collectively in good faith with the employer.
4. To indulge in coercive activities against certification of a bargaining representative.
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5. To stage, encourage or instigate such forms of coercive actions as wilful "go slow", squatting on the work premises after working hours or "gherao" of any of the members of the managerial or other staff.
6. To stage demonstrations at the residences of the employers or the managerial staff members.
7. To incite or indulge in wilful damage to employer's property connected with the industry.
8. To indulge in acts of force or violence or to hold out threats of intimidation against any workman with a view to prevent him form attending work."
10. None of the aforesaid items would specifically indicate the allegation of "sexual harassment" to be construed and understood as unfair labour practice. Though, in the absence of effective legislation in this regard, the State Government had found it appropriate to issue a Notification dated 05.08.2005 in and by which, it was recommended that Modern Standing Orders to be made in every industrial establishment providing provision to deal 26 with cases of sexual harassment. However, there has been no amendment to any of the provisions of the ID Act, 1947 in this regard. Thereafter, the Parliament has enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the 'Act 2013'). One of the objects and reasons for enacting the said legislation is consideration of sexual harassment at workplace as a violation of women's right to equality, life and liberty which creates an insecure and hostile working environment discouraging womens participation in work, thereby adversely affecting their social and economic empowerment and the goal of inclusive growth. The said Act, 2013 was also in furtherance to the concept of equality as provided under Article 14 15, 19(1)(g) of the Constitution of India. Besides, the said Act,2013 is in furtherance to the guidelines issued by the Apex Court in the case of 27 Vishaka (supra). Thus, the said Act, 2013 is brought into force to deal with this specific issue of sexual harassment at the workplace.
11. Section 2(n) of the Act, 2013 defines "sexual harassment" as under;
"2(n) "Sexual harassment" includes any one or more of the following unwelcome acts or behaviour (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 pronography; or
v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;"
12. The said Act, 2013 provides for constitution of Internal Complaints Committee at every workplace by the employer, and also further provides for 28 constitution of Local Committees. Section 9 of the said Act, 2013 provides for filing of complaints by any aggrieved women complaining the sexual harassment at the workplace to the internal committee so constituted. Section 10 provides process of conciliation. Section 11 provides for the enquiry into the complaint. Section 12 also provides for the actions to be taken during the pendency of the enquiry in the nature of transfer of aggrieved women to any other workplace. Section 13 provides for report of the committee to be submitted to the local committees. Sections 14 and 15 provides for punishment for false and frivolous complaints and also determination of compensation. Section 17 provides for maintenance of secrecy and confidentiality of the report in the complaint. Section 18 of the Act provides for appeal, in that any person aggrieved from the recommendations under section 13, 14 or 17 or non 29 implementation of said recommendation may prefer an appeal as prescribed under the Act. Section 19 provides for duties of the employer. Thus, a cursory look at the said Act,2013 reveal that it provides a separate and effective mechanism to deal with allegations of sexual harassment at workplace, making it clear that the allegation of sexual harassment at workplace has been consciously kept out of the Fifth Schedule to the ID Act, 1947 and same to be treated and dealt with under the aforesaid Special Legislation, namely, the Act, 2013.
13. The impugned order passed by the respondent No.1 is dated 22.5.2010. The Special Legislation has been enacted in the year 2013, that the impugned order passed prior to coming into force of the aforesaid legislation. Nevertheless, even as on the date when the impugned order was passed, there 30 was no provision under the ID Act, 1947 to have included the allegations of sexual harassment within the list provided under Fifth Schedule of the ID Act, 1947 dealing with unfair labour practices.
14. Apart from the above, a perusal of the reasons assigned by the respondent No.1 in the impugned order also do not satisfy the requirement of law contemplated under the ID Act, 1947. Though, the respondent No.1 has taken note of absence of "sexual harassment" in the items of unfair labour practices enlisted in the Fifth schedule, the respondent No.1 has however relied upon the Notification dated 05.08.2005 issued by the Government of Karnataka providing for amendment to the Karnataka Industrial Employment (Standing Orders) Rules, 1961, and further providing for the industries to submit their applications for modification 31 of their standing orders accordingly to include sexual harassment of women at workplace in the standing orders. This cannot under any circumstances be read and understood to be an amendment to the definition of unfair labour practice provided under Section 2(ra) of the ID Act, 1947. As rightly pointed out by the learned Senior counsel for the petitioner, Section 40 of the ID Act, 1947 does not provide any authority to the appropriate Government to amend Fifth Schedule of ID Act, 1947. The consequences contemplated under Section 25 (T) and Section 25(U) can only be given effect to, if the unfair labour practice is to read and understood to mean "sexual harassment" within the provisions of ID Act, 1947. Therefore, the reasoning assigned by the respondent No.1, relying upon the aforesaid the Government Notification dated 05.08.2005 and the guidelines issued by the Apex Court in the case of Vishaka (supra), to hold that the 32 petitioner is guilty of commission of offences of unfair labour practice under Section 25(T) of the ID Act, 1947, is erroneous and unsustainable and therefore, requires to be quashed.
15. Notwithstanding the above, the respondent No.2 if aggrieved by the findings of the internal committee of the petitioner/company, can always avail the remedies available under law, if so advised.
16. Hence, the following;
ORDER
1) The writ petition is allowed.
2) The impugned order dated 22.05.2010
passed by the respondent No.1 at Annexure-A is quashed. However, it is made clear that this 33 order shall not come in the way of the respondent No.2 intending to avail such remedy provided under law, if so advised.
Sd/-
JUDGE RU