Soumen Sen v. Public Information Officer, National Commission For Women

1. The appellant sought information about how many sexual harassment cases at workplace in Damodar Valley Corporation (DVC) are intimated as per records to NCW since 2012 to till the date of RTI application, how many of them are solved or pending; whether the case against Shambhu Das, Assistant Engineer, Communication Dept, DVC, Maithon filed on 16/03/2012 has been recorded in NCW from the yearly report submitted by DVC; what are the procedures maintained and implemented in this case and what is the present status of the case. Since there was no response either from CPIO or FAA, the appellant approached this Commission.

DECISION

2. Appellant and his wife were present during video-conferencing. They alleged that the authorities in DVC are trying to conceal the facts in order to support the accused, till date no information either from Damodar Valley Corporation or from National Commission for Women was received. In addition, they stated that an internal committee headed by Dr. Neetu Singh, Chairperson had been constituted and prima facie inquiry was completed in the month of January 2013. Surprisingly and for the reasons best known to them, the Committee was reconstituted several times. The appellant claimed the victim had a right to copy of preliminary report, speedy completion of the inquiry, and action against the culprit besides right to know the action, both under RTI Act and also under the Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

3. The Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Section 9 says:

Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:

4. Section 11 says:

Subject to the provisions of Section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under Section 509 of the Indian Penal Code, 1860 (45 of 1860), and any other relevant provisions of the said Code where applicable:

Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.

5. This section gives appellant (a) a right to know whether a criminal complaint is forwarded, (b) right to be heard and (c) right to copy of the findings, all of which were ignored by this public authority. The public authority has an obligation to forward complaint within 7 days for registration of crime/criminal complaint against accused. Here in this case, she should have been informed whether her complaint was forwarded, within seven days, either before or after preliminary inquiry.

6. Section 12 says:

12(1).During the pendency of an inquiry on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to—

(a) Transfer the aggrieved woman or the respondent to any other workplace, or

(b) grant leave to the aggrieved woman up to a period of three months; or

(c) grant such other relief to the aggrieved woman as may be prescribed.

In the absence of copy of the findings, it is not possible for her to exercise the rights envisaged in Section 12.

7. Section 13 deals with the inquiry report.—

13(i) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.

(ii) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.

(iii). Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be.

a. to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;

b. to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of Section 15:

Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:

Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

(iv) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.

8. The expressions ‘findings’ include preliminary and final findings in Report and it should be furnished within ten days. This gives a statutory right to the victim-appellant to get the findings within 7 days.

9. Section 16 says:

Notwithstanding anything contained in the Right to Information Act, 2005, the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:

Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.

10. The information pertaining to workplace sexual harassment shall not be subject to the provisions of the Right to Information Act, 2005 only to the extent that it should not be disclosed to the public, press and media in any manner. This is done in order to secure privacy, security and dignity of the appellant. The information should not find way to media which might sensationalize the sensitive issue of suffering of a woman and the harassment would be multiplied and hence the identity and addresses of the appellant, respondent witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the internal committee and the action taken are concerned are protected from media. If a third person wants to know the detailed information about sexual harassment, this provision could be used to deny. But it cannot be denied to the appellant. It is a deliberate misreading of provision of law to harass the appellant and deny her right to information about action on her own complaint.

11. This section states that the information regarding the justice secured to any victim of sexual harassment under this Act may be disseminated without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.

12. Section 19 explains the duties of employer.—

Every employer shall: (i) provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;

(vii) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code(45 of 1860) or any other law for the time being in force;

(viii) cause to initiate action, under the Indian Penal Code,1860 (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

(ix) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;

x. monitor the timely submission of reports by the Internal Committee.

13. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 Rule VII (iii) says:

(iii) The respondent shall file his reply to the complaint along with his list of documents, and names and addresses of witnesses, within a period not exceeding ten working days from the date of receipt of the documents specified under sub-rule (1).

(iv). The Complaints Committee shall make inquiry into the complaint in accordance with the principles of natural justice.

14. The disclosure of preliminary/interim inquiry report to the victim is important for the aggrieved woman to exercise all other rights in terms of section 12 and other provisions in better manner, which were denied to appellant in this case.

15. In the instant case, the denial by the CPIO was not based on anything. The PIO has failed to discharge the burden placed upon him under Section 19(5) of the RTI Act. They did not bother to give any reasons, which give rise to suspicion that it was deliberately denied.

16. Very purpose of providing a specific right to copy of inquiry report under Section 13 of Act of 2013 was to help the women-victims from tactics of other officers acting together to deny the information and remove the chances of appeal against. Thus the two enactments, the Right to Information Act and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provided her with the right to inquiry and reports, but this woman, who complained against the sexual harassment was denied these two rights. If the allegation is proved in preliminary inquiry, the authority has a duty to take further action, forward the criminal complaint to the police, give remedy to the victim, either transferring her or transferring the accused. And if not proved, the appellant should be informed about and facilitate her to exercise the right of appeal to an appropriate forum.

17. The appellant alleged bias of CPIO and some officers of public authority in favour of the accused. The appellant suffers the risk of dismissal of appeal at threshold, if appeal is filed beyond the period of limitation, and thus the public authority caused detriment to the victim as far as her right to appeal is concerned. To that extent it also amounts to deprivation of her right to information that was delayed unduly beyond 60 days.

18. The conduct of both the CPIO and the First Appellate Authority is highly unbecoming of their senior status in public authority and also to their responsibility as designated officers under Right to Information Act.

Life & Liberty Angle

19. The Commission examined if the present request under RTI pertains to life and liberty of the appellant. It is pertinent to note that the appellant was seeking information about inquiry into her complaint of sexual harassment at workplace. When Chief Justice J.S. Verma was working on the required law to deal with complaints of Sexual Harassment at the Workplace (SHW), he drew support from the Convention on Elimination of Discrimination against Women (CEDAW) as explained in Visaka's case (Vishaka v. State of Rajasthan, AIR 1997 SC 3011 : (1997) 6 SCC 241). Recognizing aspects of ‘Gender Equality’ into the ‘Right of Life and Liberty’ he stated:

“Each such incident results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right of Life and Liberty’ …. The fundamental right to carry on any occupation, trade or profession depends on the availability of a safe working environment. Right to life means life with dignity. The primary responsibility for ensuring such “safety” and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive…”

20. In Apparel Export Promotion Council v. A.K Chopra. Chopra, AIR 1999 SC 625, the Supreme Court reiterated the Visakha ruling and observed that:

“There is no gainsaying that each incident of sexual harassment, at the place of work, results in violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India…. In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated….”

21. Through its analysis, the Court concluded that sexual harassment in the workplace is a violation of women's human rights and fundamental right under Constitution of India, specifically:

Article 21: Right to ‘life and personal liberty’ besides, Article 14: Equality before the law,

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth and

Article 19(1)(g): Right to practice one's profession, or to carry on any occupation, trade or business.

22. Thus, Vishaka judgment acknowledged any sexual harassment at work place as a human rights violation which causes infringement of life and dignity of victim and enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 with an objective of providing protection to women against sexual harassment at workplace, this right was accorded a legal status. Thus, information sought in this case relating to complaint of sexual harassment at workplace can be treated as one concerning threat to her life and liberty as mentioned in section 7(1) of RTI Act, considering the fact that ‘threat to dignity of women at workplace’ is nothing less than a threat to her life and liberty in view of seriousness of mental or physical harassment she undergoes. The public authority should have provided the copy of inquiry report considering this as concerning life and liberty of the appellant within 10 days as per Section 13 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, if not in 48 hours, or at least in 30 days as prescribed under section 7(1) of RTI Act RTI Act. Information sought by the appellant/appellant of sexual harassment relating to inquiry report etc. has to be classified as information related to life and liberty, because both of these rights are threatened by sexual harassment.

23. Thus, the appellant was deprived of her right to information which was guaranteed to her under two Acts i.e., Right to Information Act and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Each officer, who obstructed furnishing of information to the appellant-victim should be liable for action for violating both of these Acts, which formed foundation of this appeal. The Commission considers that the complaint is established and finds there is a strong need to initiate penal proceedings under section 20 of RTI Act.

24. The Commission accordingly directs the CPIO, National Commission for Women and the CPIO, DVC to show-cause why maximum penalty should not be imposed upon each of them for obstructing the information to the appellant, before 30 May 2017. The Commission also directs the authorities of DVC to explain why it should not be directed to pay compensation to the appellant, before 30 May 2017.

25. The Commission directs the authorities of Damodar Valley Corporation to provide point-wise information to the appellant, before 30 May, 2017. In addition, the Commission also suggests Ms. Paromita Banerjee Sen to file a comprehensive complaint before the authorities of DVC against alleged bias against her and favour to accused, to which he DVC shall provide their response/action taken before 30 May, 2017.