Delhi High Court on filing of complaint after removal from job as afterthought
Recently on 17th July, 2019, the Delhi High Court in the case of Rashi vs. The Union of India held that filing a false sexual harassment allegation, under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Law”), as an afterthought after getting dismissed will not be tolerated.
Facts: Rashi (“Petitioner”) filed a writ petition to set aside the impugned verbal order/direction to not attend office with effect from 03.10.2018 and to direct the respondents to take action in terms of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Law”). The Petitioner was appointed as a Data Entry Operator on contract basis for the respondent No. 2 (“Council”). Along with the Petitioner, one Ms. Poonam was appointed and Ms. Poonam and the Petitioner were informed that they would have to learn the work in the respondent No. 1 (“Department”) and later work in the Council. The Petitioner and the other Data Entry Operators were all aware that they would be paid salary through some Service Provider Agency (“Agency”), but had no personal interaction with the said Agency.
From March 2017, the Petitioner and Ms. Poonam started working in the Council, and when the Employees and some officers came to understand that Ms. Poonam had a son and was staying alone as her husband had deserted her, they started subjecting her to suggestions to start a physical relationship with some male employees. As Ms. Poonam got no respite from the continuous sexual harassment, she quietly left her job one day and thereafter, one Ms. Vandana Jolly was appointed as Data Entry Operator on contract basis. Soon thereafter, the Petitioner and Ms. Vandana Jolly were subjected to sexual harassment, both by words and by action, inappropriate sexual advances, which included showing porn videos on the mobile phone, touching the body and even on some instances forcibly trying to kiss the Petitioner when she was late in Office and was alone near the rest room. At that point of time, the Petitioner had made an oral complaint to the Deputy Director General of the Department and while she claimed that she is not aware as to what happened, but a few days later, the male employee who had indulged in the unsavory incidents was removed from Office.
Unfortunately, the respondent No. 3 (“Chairman”) of the Council, developed a liking towards the Petitioner and thereafter a lot of pressure was brought on her to establish physical relationship with him. When she did not agree to the same, she was subjected to torture and was told that the Deputy Director General in the Department, who had earlier helped her, had faced serious hardship due to his fight with the Chairman. Therefore, it was in her best interest to succumb to his wishes.
The Petitioner claimed she was wary of complaining against a powerful person like the Chairman, but when the situation became unbearable, she had no other option but to file a complaint. The complaint of sexual harassment dated 28.09.2018 filed by the Petitioner was submitted and thereafter, when she reached office, she was prevented from going inside the office by the Security Guard, who informed that he has been asked by the Chairman to do so. She then demanded a written order of termination, failing which she said she will call the Police. It was further submitted that some days later again, she was told that she need not come to office, but no written order was given to her. Therefore, she contacted her Advocate, who visited the office of the Council and demanded a written order of termination. However, no written order was given and on the advice of her Advocate, the petitioner sent an e-mail to the Department. She, thus filed the present petition asking for appropriate action to be taken as per the Law.
Arguments: The Counsel for the Petitioner submitted that sexual harassment of women in the Council was rampant. There was one incident which the Petitioner shied away from detailing in her complaint dated 28.09.2018, which was that the Chairman visited her office, and came close to her, and his elbows brushed against her breasts. He made it look like as if it was an accident, but the Petitioner was sure that he touched her inappropriately by design.
The respondent filed a counter affidavit whereby they stated that the Petitioner was an employee of the out sourcing agency and was deployed in the month of January, 2017. The Petitioner had never been the employee of the Council or Department. The outsourcing agency had via letter dated 27.09.2018 discontinued of engagement of Petitioner. Learned counsel for the respondents submitted that as a protest against her termination, she filed the false complaint against Chairman, as she did not file any complaint before termination. Further, she always had an attitude that she is having a backing of one senior officer of the ministry of Social Justice of Empowerment and therefore, she had all the liberty to attend the office by her choice i.e. coming late in morning and leaving early in the evening. It was further submitted that she was repeatedly verbally instructed to come on time and do her work properly but she was hardly bothered about the instructions given. She remained absent for days without prior permission and on 28.09.2018, she entered office and left immediately without intimating any higher authority. Thereafter, the security guards were instructed not to allow the Petitioner into the office. On 01.10.2018, the Petitioner visited the answering respondent’s office and forced the security guard to let her enter the office, whereas she was verbally told by the security guards that they are having instructions not to allow her into the office. She misbehaved with the security guards and threatened them that she will call the police if they will obstruct her way to enter into the office. Thereafter, she made a telephonic call to someone and asked the security guard to talk to the person over the mobile. It is pertinent to mention here that the person over the phone asked the security guard as to who is he? As soon as the security guard told the person that he is security guard then the person over the phone threatened the security guard by saying that “tere ko jail bhijwa duga” and thereafter, the petitioner forcefully entered into the office. The Counsel submitted that the present case is the inglorious example of misuse of the women laws by making totally false and frivolous allegations against the persons in particular the Council and its Chairman who is highly reputed person and has been diligently performing his duties.
Observation: The Court dismissed the writ petition by holding that:
“It is revealed that on several occasions in the past, the Petitioner was orally instructed to come to the office on time and do her duty with devotion and sincerity. However, no change was noticed in her casual approach towards duty in office. The Employee Attendance Register/Dashboard clearly shows her casual approach. Vide circular dated 17.09.2018, the Petitioner was warned to come on time and be punctual. It is admitted fact that the duty reporting time is 09.30 A.M. Despite the circular issued for all the employees, the Petitioner did not stop coming late in the office, therefore, in the impugned letter, the respondents asked the service provider agency that they do not want the service of the Petitioner for the reason that she is irregular and nonpunctual in the office.
Held: The Delhi High Court held that the fact remains that the Petitioner worked as data entry operator and was an employee of an outsourcing agency. She made complaint of sexual harassment after removal from the service. Thus, this Court has no power under Section (sic Article) 226 of the Constitution of India to direct the respondents to keep the Petitioner in service who was not even on the roll of the respondents.