Recently, in a judgment dated 19th November, 2019, the Delhi High Court in the case of Abhilasha Dwivedi vs. Department of Women & Child Development NCT of Delhi and Ors., held that mere shouting in anger at a woman, cannot come under the definition of sexual harassment as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Law”).
Facts: Abilasha Dwivedi (“Petitioner”) was working as a Psychologist at the Observation Home for Boys-II situated at Kingsway Camp, Delhi (hereafter referred to as ‘OHB-II’), however she was an employee of an NGO named “Expressions Children Home”. She alleged that she had been facing harassment from the superintendent at OHB-II (hereafter referred to as ‘PK‘) and was pressurized to conceal malpractices. In addition, she also alleged that PK’s conduct and behaviour towards her was inappropriate. She claimed that she was ill-treated and that the conduct of PK was inappropriate not only towards her but to other female staff/officers as well, by stating that he would change his clothes in the presence of female staff much to their discomfort and embarrassment; ask her to accompany him wherever he was going; make her and other female staff sit in his chamber throughout the evening even though there was no work; stare and make her feel uncomfortable; and also indulge in vulgar conversations. Resultantly, she felt extremely uncomfortable and insecure in such an environment. On 07.01.2019, PK abused and threatened her to the extent that she was left scarred and traumatized due to which, she found that she had no option but to report PK’s conduct and therefore, she filed a complaint against him with the Delhi Commission for Women (“Respondent no. 2” – DCW). She stated that subsequently, she also uploaded her complaint on SheBox, an online portal maintained by the Ministry of Women and Child Development but, she did not receive any response to her complaints. On 30.03.2019, she received an email informing her that she had been transferred to CHB-I & II (Alipur) (“Alipur”), where she was directed to report on 02.04.2019. She claimed that atmosphere at Alipur was not congenial for women staff and that she became aware that PK had visited the said home during the past few days and therefore, she did not report for work, as was directed. However, she sent an email, seeking permission to work at OHB-II till her complaint was investigated. On 24.04.2019, she received an email informing her that an Internal Committee (“IC”) had been constituted and also received a notice calling her to be present for a hearing. She further stated that she received a one-line email from the IC stating “we will not help you”. Thereafter, she sent an email to the seeking information regarding constitution of the IC and she received an email from the IC, giving her a final opportunity to appear, failing which the matter would be considered ex parte. Thereafter, she was constrained to file the present petition.
The Petitioner has filed the present petition praying for writ of Mandamus to (i) direct Respondent No.2 to constitute an independent committee to enquire into and investigate all her allegations pertaining to sexual harassment at workplace as well allegations pertaining to malpractices; (ii) quash the notice transferring her and, (iii) direct the Respondent No.1 to compensate her for causing delay in acting on her complaints and for all the harassment suffered by her while pursuing her grievances which went unacted upon for over 3 months.
Held: On the question of constitution of IC, the Hon’ble High Court, observed that “It is apparent that the IC was not constituted to deal with any specific complaint of the Petitioner but to consider all complaints of sexual harassment within the organisation as the IC was constituted by an order dated 19/09/2018. However, since the presiding officer was on long leave, a new presiding officer was appointed by order dated 18/03/2019. Therefore, the Court finds no reason to doubt the integrity or the independence of the IC. Further, on the issue of bias, the Court observed that merely because the presiding officer is the colleague of PK, is no ground to doubt her independence. The IC is an internal committee and is bound to include some members from the department. In addition to the above, it is also relevant to note that the IC is constituted by four members and there is no ground whatsoever to doubt the independence of the other three members. There is no material on record, which would even remotely suggest that the petitioner has any reasonable ground to apprehend that the IC is biased against her.”
Regarding the allegation of email showing non-cooperation by the IC, the Court noted that “Insofar as the email message stating that “we will not help you” is concerned, it was explained to the Petitioner that the same had been sent inadvertently. The IC had also clarified that a similar message had been sent randomly/automatically to all e-mail addresses in the system and copies of such messages had also been forwarded her, who was assured by the IC that her complaint would be inquired into. Thus, any apprehension on account of receiving the said email is unwarranted.”
Further, the Court noted that “The inquiry report of the IC indicates that IC had held hearings to examine the Petitioner’s complaint on five occasions. However, she failed to attend any of them. The inquiry report indicates that the inquiry proceedings were terminated, as she did not provide any evidence/document/witness to support her allegations against P.K. It is also relevant to note that certain allegations of inappropriate behaviour on part of PK, which are stated in the petition, do not find mention in her original complaint, which alleged that PK had rebuked her in front of fifteen other persons. There was no allegation of inappropriate behaviour having any sexual overtones. She had reported that PK had shouted at her in front of the whole staff and she found the said behaviour to be intolerable. This Court finds it difficult to accept that shouting at her in anger, as alleged in her complaint, by itself can be considered as ‘sexual harassment’ within the meaning of Section 2(n) of the Law. The IC had also found that the allegations made were general in nature and she had failed to substantiate them.”
Regarding the Petitioner’s transfer, the Court held that “Insofar as the Petitioner’s prayer for quashing the notice transferring the Petitioner to Alipur is concerned, this Court is unable to accept that any interference with the same is called for in these proceedings. The question as to how an organisation deploys human resources available to it, is a matter of internal management and warrants no interference by this Court. However, it will be open for her to make a representation to the concerned authorities setting out her apprehension regarding the work environment at Alipur. Needless to state that if any such representation is made, the same would be considered by the concerned authorities.”
– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Child Safety at Work