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August 4, 2008
Sexual Harassment: Workplace ‘outside the
box’!
In a recent case throwing more light on the considerations in
relation to harassment at the workplace, the Delhi High Court
has ruled that sexual harassment at the workplace also includes
such an act committed outside the physical office premises.
Facts of the Case:
In March 2007, a director of National Academy of Audit and
Accounts (NAAA), an academy imparting training services, was
allegedly drunk and entered the female officer’s room in the
Glen Officers’ Mess and misbehaved with her. The female officer
filed a First Information Report the next day and also informed
her senior officials of the misconduct. This lead to a
departmental inquiry against the director and he was suspended
from his employment and a criminal case was filed against him.
The director approached the Central Administrative Tribunal,
principal bench, New Delhi (“Tribunal”),
seeking to stay the departmental inquiry contending that the
alleged misconduct could not be categorized as sexual harassment
at the workplace as the incident occurred in the official mess
where the female officer was residing. The Tribunal did not
agree to the director’s reasoning and refused to stay the
departmental inquiry.
Current Legal Position:
Unlike several other countries, India still does not have a
codified law prohibiting sexual harassment at workplace. The
Supreme Court of India in the landmark judgment of Vishaka vs.
State of Rajasthan (1997) has laid down the guidelines (“Guidelines”)
to be followed by all employers prohibiting sexual harassment at
workplace. Until the enactment of a legislation on this subject,
the Guidelines have a binding effect.
The Government has proposed to introduce the Protection of Women
Against Sexual Harassment At Workplace Bill, 2007 (“Bill”)
in the Parliament. The Bill is largely on similar lines as the
Guidelines and lays down provisions with respect to the setting
up of an internal complaints committee and in cases where the
setting up of an internal complaints committee is not possible,
a local complaints committee, which would look into complaints
regarding sexual harassment.
Vikram Shroff, head of the firm’s Human Resources Law practice
group at Nishith Desai Associates is of the view that “unlike
the US, the law on sexual harassment in India is still evolving
and there are only a handful of instances which eventually get
reported and litigated. While India has yet to see substantial
litigation matters on sexual harassment, there is definitely a
growing importance on this subject. Employers have sensed the
need to review their existing policies and practices and have
also started using the services of experts to train their
managers to deal with such issues in the workplace.”
Analysis and Implication:
The Guidelines do not define a ‘workplace’. ‘Workplace’ in
general context would mean the place where the employees work.
However, the Bill defines a ‘workplace’ to include any place
visited by the employee arising out of or during and in the
course of employment. Although this definition is broad enough
to cover any incident which may occur at any place in the course
of employment, it is not entirely clear as to whether an act
which occurs outside the physical premises of the establishment
and which is not in the course of employment would also be
subject to disciplinary proceedings by the employer.
In order to determine whether a particular place is a
‘workplace’ or not, the Tribunal considered factors like
proximity from the place of work, control of management over
such place/residence where working woman is residing and whether
such residence is an extension or contiguous part of the working
place. However, it has also been clarified by the Tribunal that
these parameters only provide general guidelines and are not
determinative factors. Therefore, the manner in which a
‘workplace’ is construed would depend on the facts and
circumstances of each and every case.
This judgment is a clear deviation from the traditional idea of
sexual harassment at the workplace and has broadened the scope
of ‘workplace’. It is heartening to know that courts have gone
on to apply certain law in relation to protection of the
employees’ interests beyond the four walls of the establishment
and have looked at such issues from a more practical
perspective.
Sources:
WP(C) No. 8649/2007 Saurabh Kumar Mallick vs. The
Comptroller & Auditor General of India and Another
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