Illegality in law against sexual harassment at workplace

The manner of appointing members to the internal committees to probe complaints under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, has been termed “unconstitutional” by the Central Administrative Tribunal’s (CAT) Bangalore Bench.

The tribunal said the appointment process was “biased” as two members of such committees should be “committed to the cause of women,” and hence “destroys the concept of fairness” embedded in the process of adjudication.

However, as tribunals have no power to strike down the law, it has recommended to the Union government to look into Sections 4 and 7 of the Act, under which committees are constituted to hear complaints of sexual harassments, and take corrective steps in compliance with the Constitution of India.

“If members of the adjudicatory committee are to be committed to an ideology [cause of women], their mental frame will be such that it would give an opportunity for unwelcome bias and their finding also will be in resonance of their personal commitment,” said a Bench comprising judicial member K.B. Suresh (as he then was) and administrative member P.K. Pradhan last week.

“Sections 4 and 7 of the Act can be termed unconstitutional because once an adjudicatory body is to be determined as slanted in its sway, it destroys the fairness concept embedded in adjudication,” said the Bench while dealing with four cases of dismissal of employees from service by different government agencies based on the findings of committees on sexual harassment.

The tribunal said that in all the four cases — related to KIOCL Ltd., National Institute of Mental Health and Neuro Sciences, Employees State Insurance Corporation, and the Department of Posts — the employees were erroneously found “guilty.”

In one of the cases, the complainant had not even alleged sexual harassment, and in another, a whistleblower was “targeted” through a few women employees to eliminate him from service, the tribunal said while pointing at a series of flaws in the conduct of inquiry proceedings and failure to give chance of cross examination to the accused employees.

Apparently, the climate of fear, caused due to public outcry on several incidents of assault on women, had created a “terror situation’ among senior echelons of administrative authorities of these agencies, leading to the dismissal of employees, the tribunal said.

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