The High Court of Delhi, in two recent cases, Puja Dubey vs. Union of India and Ors. (in July 2016) (“Puja Dubey Case”) and A. K. Singh vs. Union of India and Ors. (in December 2015) (“Singh Case”), was faced with the question of proportionality of punishment. While the Puja Dubey case is not a case of sexual harassment, in the Singh case, a lady constable complained on December 31, 2009, that Singh tried to forcibly enter the complainant’s room on December 26, 2009, and made indecent remarks that amounted to sexual harassment. On filing the said complaint, the disciplinary authority ordered an inquiry to be conducted.
The inquiry officer concluded that Singh did misbehave with the complainant and imposed a penalty of withholding one increment for one year without cumulative effect. Thereafter, the superior authority, i.e., the Deputy Inspector General, issued a suo motu show cause notice stating that the penalty was too lenient and proposed a graver penalty of reduction of pay by three stages, followed by postponing all future increments of pay after the expiry of three years. Singh approached the Delhi High Court and argued that the imposition of a grave penalty was unwarranted and that withholding an increment for 3 years amounted to arbitrary punishment. It was also argued that the complainant was in the habit of leveling allegations and took advantage of being a widow, and Singh had an unblemished record of service.
The question before the Delhi High Court was whether imposition of a penalty by reduction of pay and withholding of an increment cumulatively for three years for alleged misconduct is an arbitrary punishment. The Delhi High Court held that the imposition of graver punishment is not disproportionate and stated that:
‘This Court is conscious of the fact that proportionality is an important and, at times, crucial element, which is considered in the judicial review to prevent excessive punishment. However, at the same time, when the petitioner’s misconduct of the type alleged in this case is established, the application of proportionality also requires that the penalty not be rendered either a formality or a mockery. Negligible punishments will strike at the efficacy of the misconduct, which has been established after Vishakha’s case (supra). Proportionality must also take in an ‘adequacy’ and public interest element. The penalty, in a sense, is not merely one imposed by the employer on the employee because the former feels such behaviour strikes at discipline, but also one that assures generally the public, and especially the female members of the service of force in particular, that such behaviour is outlawed and not tolerated in the workplace. In that sense, this species of misconduct stands on a different footing.’
In coming to this conclusion, the Court relied on several case laws, both Indian and international:
It noted observations made in Samridhi Devi vs. Union of India, 125 (2005) DLT 284, that Vishaka vs. State of Rajasthan (1997 (6) SCC 241) and its subsequent application, by the Supreme Court, in the Apparel Export Promotion case (1999 I LLJ 962 (SC)), were aimed at ensuring a workplace safe from sexual harassment and protection of female employees from hostile circumstances in employment on that account. The elaborate guidelines, evolved and put in place were a sequel to the court’s declaration of law that such gender-based unacceptable behavior had to be outlawed and were contrary to Articles 15 (1) and 21 of the Constitution of India.
It noted that ‘such practices have to be outlawed not only because they result in gender discrimination, but also since they create a hostile work environment, which undermines the dignity, self-esteem and confidence of the female employees, and tends to alienate them.’ It also observed that ‘the aim of the Supreme Court, while evolving the guidelines in Vishaka was to ensure a fair, secure and comfortable work environment, and completely eliminate situations, or possibilities where the protector could abuse his trust, and turn predator.’ With respect to the duty of an employer to take action, it said, ‘the requirement of taking action is not merely subjective to the incident, or facts of a case, it is to comply with, and sub-serve a wider societal purpose.’
It also referred to US cases Ellison vs. Brady, 924 F. 2d 872 [1991], Fuller vs. City of Oakland, 47 F.3d. 1522 [1995], and Yamaguchi vs. Widnall, 109 F.3d. 1475 [1997], where courts held that appropriate remedial and corrective action includes measures reasonably calculated to end current harassment and to deter future harassment from the same or other offenders.
On the issue of proportionality, the Court further observed that there is no denying the importance of displaying sensitivity while considering the appropriate penalty for a proved misconduct of sexual harassment. The measure adopted by the employer has to not merely be subjective, unlike other instances of misconduct; it serves a wider purpose of assuring a safe workplace and signals the willingness of the employer to address such issues with seriousness and promptitude. This consideration can never be overlooked in such cases.
In this context, it may be worthwhile to discuss Section 13(4) of the Act. Section 13 (4) of the Act states that ‘the employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.’ The question that arises as a result of this section is whether an employer is required to take action strictly in accordance with what has been recommended by the ICC or whether the employer is free to enhance or reduce the punishment recommended by the ICC. Unfortunately, this case has not discussed whether, based on the findings of the ICC, employers can enhance or reduce the punishment recommended by the ICC. However, it appears from this case that in a case where CCS Rules are applicable, an employer would probably be in a position to alter the recommendation. In a case where only the Act may be applicable, the position is unclear.
In the Puja Dubey case as well, the Court discussed proportionality. Though the facts in this case did not deal with sexual harassment, the court decided the issue of proportionality, referring to some of the case laws referred to above.