National Commission for Women Cannot Grant Final Relief or Arrive at Final Conclusions; Not a...

8/11/2019 National Commission for Women Cannot Grant Final Relief or Arrive at Final Conclusions; Not a Judicial Body

1/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.146 OF 2014

1. KPMG India Pvt. Ltd.having office at ApolloMills Compound,NM Joshi Mag, Mahala!mi,Mum"ai # $%% %11 ..

&. 'ash (aga Go)alhaving office at Lodha *!celus,Apollo Mills Compound,NM Joshi Mag,Mahala!mi, Mum"ai $%% %11 .. Petitiones.

+s.

1. National Commission fo omen-NC though its Chaipeson,having its office at$, /een /a)al 0padh)a)a Mag,Ne /elhi 11% %%&. ..

&. Mina2shi Maheshaiesiding at 3lat No.4%5,(ea 3lama, /osti 3lamingo, (ei, Mum"ai $%% %&4 ..6espondents.

Ms.Indu Malhota, (enio Advocate along ith M.Ni2hil(a2hadande i7" A89 : Patnes fo the Petitiones.

M.(unip (en i7" P.M. Jadhav fo 6espondent No.1.

Ms.Mina2shi Maheshai, 6espondent No.& in peson.

CORAM : V. M. KANADE A. K. MENON! JJ.

RESERVED ON : "#$ M%&! 2014

PRONOUNCED ON : 11#$ A'(')# 2014.

1/34

::: Downloaded on - 19/08/2014 16:40:46 :::


2/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

JUDGMENT (PER A. K. MENON, J.)

1. 6ule. 6ule etuna"le fothith.

&. Petitione No.1 is a pivate limited compan) of hich

Petitione No.& is the Compan) (eceta). 3o the sa2e of

convenience Petitione no.1 and & ae efeed to as Petitione.

6espondent No.1 is a statuto) "od) set up unde the National

Commission fo omen, Act, 1;;% and is empoeed to deal ith

vaious issues concening omen as set out in the Act. 6espondent

No.& as emplo)ed ith the Petitione at all mateial times and filed

a complaint against the Petitione no.1 ith the 6espondent no.1.

4.


3/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

4d Bcto"e, &%% she e!pessed via email addessed to the Petitione

that she ould conside moving on fom the Petitione compan).

6espondent No.& had in vaious communications ith seveal of he

supeios conve)ed he gievances. It appeas that that the

Petitione also had cetain esevations. It is the PetitionesD

contention that it gave 6espondent No.& ample oppotunit) to

impove he pefomance "ut to no avail.

5. As a esult on 4%th Novem"e, &%%, Petitione No.1

teminated he sevices and paid he contactual dues and completed

all the fomalities.


4/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

accodance ith (taff Manual of the Compan) as pe guidelines laid

don ") the (upeme Cout in case of +isha2a +s. (tate of

6aasthan.

opeate, instead she appoached the Mahaashta (tate Commission

fo omen -(tate Commission though a complaint. Bn 1;th June,

&%%E 6espondent No.& filed poceedings "efoe 6espondent No.1. A

cop) as eceived ") petitione no.1 on ;th Jul), &%%E. Bn 1

th

Jul)

&%%E the 6espondent No.& filed a ciminal complaint against seven

4/34

::: Downloaded on - 19/08/2014 16:40:46 :::


5/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

emplo)ees of the Petitione unde (ections 45$, 5%;, 4$ ead ith

(ections 1FF, 5%%, 5%4 and 5% of the Indian Penal Code. Bn ; th

August &%%E fou of these seven accused pesons filed it petition

No.1$$5 of &%%E fo =uashing the said complaint.

;.


6/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

infomed the (tate Commission that a +isha2a committee had alead)

"een constituted and should "e alloed to poceed ith the in=ui)

and that if 6espondent No.& had an) o"ection to an) specific

mem"e of +isha2a committee, the Petitione as illing to appoint

e!tenal mem"es instead. 6espondent No.& did not epl).

11. In the meanhile, in August &%%F ithout peudice to its

ights and contentions, Petitione No.1 paticipated in a pelimina)

heaing "efoe the (tate Commission. It is the PetitionesD case that

(tate Commission had pe>udged issues and as not compl)ing ith

pinciples of natual ustice. (eveal of its mem"es had peudicial

vies and had pu"licl) aied them.


7/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

Petitione No.1 came to "e dismissed.

1&.


8/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

to en=uie into the complaint and has allegedl) conducted e!pate

heaings conta) to its on ules. Bn o a"out &th Bcto"e, &%14,

the Petitione leant that vaious heaings had "een conducted

e!pate ") 6espondent No.1. Commission

in=uied into the complaint made ") 6espondent No.& and

famed7efamed tems of efeence as follos

?1.


9/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

emplo)ee as follos

# Lette of apolog)

# Compensation

# 6elief # 9onus

# 9enefits aising out of this dispute

# An) othe eliefs.@

1.


10/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

poceedings "e sta)ed.

1F. 6espondent No.1 has filed an affidavit of 6a (ingh,

/eput) (eceta) heein it is su"mitted that the petition is

pematue and that the Commission has ide poes to investigate to

complaints ") omen, if the commission feels that it appopiate to

do so. It is admitted in the affidavit that heaings "efoe the

Commission ae not udicial heaings "ut ae investigative in natue

and the Commission follos all ules of natual ustice. It is denied

that the investigation into the petitionesD case is "e)ond its

uisdiction o it is a"ita) o illegal in an) manne.

1;. An additional affidavit is also filed on "ehalf of the

National Commission on &5th Mach, &%14 heein the deponent

has made a gievance that the Petitiones ae see2ing to dela) the

poceedings at eve) stage. It is su"mitted that the Commission is

ade=uatel) empoeed to hea the complaints and it poposes to

poceed ith the in=ui) that it has undeta2en.

&%. Bn "ehalf of 6espondent No.&, an affidavit in epl) has

"een filed on o a"out &&nd Janua), &%1$ and theeafte itten

su"missions have also "een filed. It is contended that 6espondent

No.& is a =ualified C.A. ith 15 )eas e!peience in a senio position

in multinational companies. (he has naated ho she complained

a"out discomfot as a esult of "ehavio ") colleagues. (eveal

10/34

::: Downloaded on - 19/08/2014 16:40:46 :::


11/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

e!tacts fom emails have "een epoduced in the affidavit. It is

su"mitted that no in=ui) as conducted as pe +isha2a guidelines.

Bn the othe hand on 4%.11.&%% she eceived a communication

fom one (unil Mathu stating that he sevices have "een

teminated. (he then filed a complaint in Intenational *thics

Committee of the Petitiones.


12/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

defamation hich has futhe violated he ight to o2 and live ith

dignit). In Novem"e &%1& the Chief Metopolitan MagistateDs

Cout diected Mum"ai police to "loc2 the defamato) content on

e"sites. 6espondent No.& had meanhile filed a ciminal

complaint against the 'uman 6esouces Manage, Chief Bpeating

Bffice, Chief *!ecutive Bffice and fome /iecto, '. 6. of

Petitione No.1 fo having failed to compl) ith +isha2a guidelines.


13/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

of la, namel) the uisdiction of 6espondent No.1 to entetain the

second 6espondentDs complaint.

&$. e theefoe, poceeded to hea the petitionesD counsel

and counsel fo the National Commission # 6espondent No.1.

6espondent No.&Ds son as accodingl) infomed that onl) aguments

on a legal issue ee "eing advanced and that 6espondent No.&

ould "e head on that aspect. e ma) also o"seve hee that afte

&4dApil, &%1$ the matte as head on 4% thApil, &%1$ and FthMa),

&%1$ hen 6espondent No.& as pesent and addessed the Cout.


14/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

along ith othe application.


15/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

attempting to deail the pesent in=ui). +aious aspects of the

meits of case ae dealt ith ") 6espondent No.&. 6espondent No.&

has contended that the National Commission has necessa) poes

to in=uie into individual complaints and theefoe su"mits that the

ode dated &Eth Novem"e, &%14 ganting sta) of futhe

poceedings "efoe the National Commission must "e vacated.

&F. 3uthe eoindes and su>eoindes have "een filed ")

the paties, hoeve, it is not necessa) to deal ith each of them to

the e!tent the) ae epetitive in natue.

&;. It is the case of the Petitione that the National

Commission fo omen, Act, 1;;% povides fo functions of the

Commission hich ae to "e found in section 1%.

implementation of las enacted to povide potection to omen and

non>compliance of polic) decisions, guidelines o instuctions and

elief to omen.

4%. (u">section $ of (ection 1% empoes the commission

ith poes of the Civil Cout to t) suits fo the pupose of

summoning and itnessing e!amination on oath, e=uiing the

15/34

::: Downloaded on - 19/08/2014 16:40:47 :::


16/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

discove) and poduction of an) documents, eceiving evidence on

affidavits, e=uisitioning an) pu"lic ecod o cop) theeof fom an)

cout o office, issuing commissions fo ecoding e!amination of

itnesses.

41. Ms. Malhota, leaned (enio counsel fo the Petitione

su"mitted that unde section 1E of the Act the Cental Govenment

has "een empoeed to ma2e ules to ca) out the povisions of Act

and in pusuance of section 1E, the National Commission fo omen

-Pocedue 6egulations, &%%5 have "een enacted heein the

pocedue fo dealing ith complaints is enlisted in Pat &. In the

said pocedual ules item & povides that the Commission ma)

summail) dismiss the complaints if it elates to civil dispute "eteen

the paties, mattes hich ae su">udice "efoe the cout o ti"unal

and mattes hich ae outside the pevie of the commission on an)

othe gound. udice the commission

ought not to have poceeded to entetain the complaint.

4&. Ms. Malhota futhe su"mitted that Petitione No.1 has a

ell famed polic) fo se!ual haassment hich is as pe (taff Manual

and it is availa"le on the e"site to ensue that the omen

emplo)ees ae potected against se!ual haassment at the o2place

and accodingl) it is stated that Petitione No.1 had acted in

16/34

::: Downloaded on - 19/08/2014 16:40:47 :::


17/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

compliance ith the udgment of the (upeme Cout in +isha2aDs

case. hile guidelines povided fo the emplo)e initiating ciminal

poceedings, a ciminal complaint had "een filed ") 6espondent No.&

heself against the offices of Petitione compan), ho ae alleged to

have haassed 6espondent No.&. It is su"mitted that the Petitione

cannot no ta2e action against these fome emplo)ees.


18/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

appoached vaious foums, filed ciminal poceedings, c)"e>cime

complaints including a complaint "efoe the Institute of Chateed

Accountant of India.


19/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

appopiate authoities. It is fo the appopiate authoit) to loo2 into

complaint and ta2e suo moto action in mattes elating to depivation

of omenDs ights, ") ta2ing up such mattes to appopiate

authoities calling fo special studies o investigations into specific

po"lems and ecommending stategies fo thei emoval.

45.


20/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

commission and othe statuto) "odies entitled to investigate o

in=uie into cetain catego) of mattes ould not "ea the chaacte

of ?findings@ ith an) evidentia) value.


21/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

poes to entetain pivate complaints. M. (en concedes that it

does not have poe to detemine ights of the paties. It does have

poe to addess the issues and ta2e them up ith elevant

authoities fo emedial o cumulative puposes and the constitution

of +isha2a committee ") the emplo)e as in addition to the

measues that commission can adopt. It is su"mitted that committee

is conducting a pelimina) in=ui) and Petitione has filed the

Petition in haste.

4;. Apopos the ?tems of efeence@, M.(en su"mitted that

Items 1 and & could "e loo2ed into ") the commission. Item 4 to 5

accoding to counsel ae conse=uential. Item in =uestion is fo

committee to decide as a ecommendato) measue and not fo

detemination of ights and ecommendations. As fa as the tems of

efeence item 1 and & ae concened e have dealt ith them

heeafte. It is hoeve not possi"le to accept M. (ens su"mission

=ua items 4 to .

$%. M. (en conceded that the tems of efeence cannot "e

conveted into eliefs to "e ganted to the complainant. 'e

su"mitted that unde 4.5.4 and 4.5.5. of (taff Manual, staff mem"es

ae supposed to "ing to the notice of an) Patne ithout dela) in

case an emplo)ee encountes such o"ectiona"le "ehavio o an

emplo)ee "ecome aae of the colleague "eing a victim of se!ual

haassment. (taff mem"es ma) spea2 to the epoting Patne, (taff

21/34

::: Downloaded on - 19/08/2014 16:40:47 :::


22/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

Patne o '6/ pofessionals.


23/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

e!ploe the possi"ilit) of an amica"le esolution of the matte. 0pon

consent of the paties, the matte as theeafte head in Cham"e

on 14th June, &%1$ and $th Jul), &%1$. In the inteegnum,

6espondent No.1 met the PetitioneDs C*B in an attempt to find a

mutual accepta"le solution. Bn $thJul), &%1$ the paties appeaed

"efoe us and 6espondent No.& sought futhe time since the meeting

had ta2en place and the paties ae still e!ploing possi"le modalities

fo settlement.


24/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

"e =uashed vide ode dated .F.&%%F.


25/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

$. Chapte III of the Act povides fo the functions of the

Commission.

-idepivation of omenDs ights

-ii non>implementation of las enacted topovide potection to omen and also toachieve the o"ective of e=ualit) anddevelopment

-iii non>compliance of polic) decisions,

guidelines o instuctions aimed atmitigating hadships and ensuing elfaeand poviding elief to omen, and ta2e>upthe issues aising out of such mattes ithappopiate authoities

-& . . .

-4 . . .

-$ section -1,have all the poes of a civil cout t)ing a suit and, in

25/34

::: Downloaded on - 19/08/2014 16:40:47 :::


26/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

paticula, in espect of the folloing mattes, namel)>

-asummoning and enfocing the attendanceof an) peson fom an) pat of India and

e!amining him on oath

-"e=uiing the discove) and poduction ofan) document

-c eceiving evidence on affidavits

-d e=uisitioning an) pu"lic ecod o cop)theeof fom an) cout o office

-eissuing commissions fo the e!amination ofitnesses and documents and

-fan) othe matte hich ma) "e pesci"ed.

$E. section -i of clause -f of su">section 1. In othe

ods, the poes enlisted a"ove ma) "e e!ecised ") the

commission hile investigating and e!amining all the mattes

elating to safeguads fo the omen unde the constitution and the

26/34

::: Downloaded on - 19/08/2014 16:40:47 :::


27/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

las and to loo2 into complaints and ta2e suo moto notice of mattes

elating to -i depivation of omen ights, -ii non>implementation of

las enacted to povide potection to omen and achieving the

o"ective of e=ualit) and development -iiinon>compliance of polic)

decisions, guidelines o instuctions aimed at mitigating hadships

and ensuing elfae and poviding elief to omen and no othe.

$F.


28/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

ee instituted ith 6espondent No.1 afte having e!hausted all the

emedies. It ill not "e out of place to mention that 6espondent

No.& had successfull) "loc2ed the "logs placed on the intenet ")

lodging a complaint "efoe the Metopolitan Magistate and


29/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

not against the petitiones. It, theefoe, has to "e seen as to hat

poes of the Commission has =ua the Petitione No.1.

5&. As fa as, the fist point of efeence is concened vi

hethe the +isa2ha guidelines ee folloed ") the petitiones o

not, thee cannot "e an) dou"t that the petitiones had fomed the

+isha2a committee ith notice to 6espondent No.&.


30/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

and uisdiction of the commission ae concened, it is ell ithin the

poe of the commission to in=uie into and detemine hethe the

+isha2a guidelines ee folloed ") an oganiation. Although in the

pesent case the 1st espondent need not loo2 into this aspect in

othe cases hee the +isa2ha guidelines ee not fomed o offeed

to "e fomed ") the emplo)es, the commission is empoeed to

conside this issue. 3o that matte, the Commission ma) entetain

individual complaints to ascetain hethe +isha2a guidelines ee

folloed. Needless to mention such en=uiies ma) not "e conducted

e!>pate, ithout notice to the oganisation in =uestion.


31/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

ecommendations on the "asis of such facts in the lage inteests of

omen. If a pima facie case is made out, the commission must issue

notice to the oganisation and hea them "efoe ma2ing

ecommending emedial measues.


32/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

"e)ond the scope of the function of the commission as set out in

section 1%. If in the couse of ca)ing out the investigation it

o"seves violation of omenDs ight, the commission ma) onl)

ecommend measues to pevent a fait accompli to that complainant.

In the pesent case, theefoe, the commission has no uisdiction to

detemine hethe o not thee as an unfai dismissal o hethe

such dismissal has caused loss of futue caee oppotunit). No can

the Commission demand a lette of apolog), diect pa)ment of

compensation, o gant elief ") a) of odeing pa)ment of "onus.

6espondent No.& has alead) adopted the ciminal poceedings fo

"inging the alleged offendes to "oo2 and the couts "efoe hich

such poceedings ae "ought ae e!pected to t) the same.

5E. In conclusion, having consideed the su"missions of the

leaned counsel fo the paties and having peused the pleadings,

affidavits and elevant documents e ae of the opinion that the

tems of efeence famed ") the Commission ill "e su"sumed ")

the folloing "oad issues

1. hethe the National Commission fo omen is

entitled to entetain complaints of individuals in elation

to the mattes concening ights of omen H

&.

32/34

::: Downloaded on - 19/08/2014 16:40:47 :::


33/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

implementation of las enacted to povide potection to omen and

also to achieve the o"ective of e=ualit) and development, non>

compliance of polic) decisions, guidelines o instuctions aimed at

mitigating hadships and ensuing elfae and povide elief to

omen and to ta2e up such issues ith appopiate authoities.

'oeve, it does not have un"idled poe o authoit).


34/34

o

m

b

ay

H

i

gh

C

o

ur

t

wp146.14.sxw

is that the commission is entitled to act as a guadian of omensD

ights ith a vie to ensuing that omensD ights ae potected o

not endeed inaccessi"le.

%. As egads the second issue, namel), natue of eliefs the

commission can gant to individual complainant e ae of the vie

that the commission ma) afte investigating the complaint ta2e up

the mattes ith appopiate authoities including emplo)e o such

othe pesons hose action o inaction have given ise to such

complaints. e ae of the vie that the commission is not entitled to

aive at final conclusions o gant eliefs that a civil o ciminal cout

can.

1. In the esult the petition succeeds. 6ule is made a"solute

in tems of pa)e clause -a. e, hoeve, ish to claif) that

espondent no.& is at li"et) to poceed ith its ciminal complaints

and c)"e>cime complaint pending, if an), ithout "eing influenced

") an) o"sevation in this ode.

National Commission for Women Cannot Grant Final Relief or Arrive at Final Conclusions; Not a...

Documents

Transcript of National Commission for Women Cannot Grant Final Relief or Arrive at Final Conclusions; Not a...