Rule prohibiting Lawyers in proceedings under Sexual Harassment Act challenged in Kerala HC

Meera Emmanuel December 13 2018
UAPA

The Kerala High Court has issued notice in a petition challenging rules under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 ('Act') which prohibit parties from bringing lawyers to represent them in proceedings initiated under the Act.

The relevant rule, Rule 7 (6) of the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Rules, 2013 (Rules) states,

"The parties shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of the proceedings before the complaints committee.

This has now been challenged as unconstitutional and in violation of natural justice principles before the Kerala High Court, by the Managing Director (petitioner) of an IT company based in Kerala.

As per the petition, local level complaints committee had initiated an inquiry against the petitioner after an anonymous letter to the District Collector alleged that the petitioner had sexually harassed a former employee of his company.

In furtherance of the inquiry, the committee interviewed the employee, spoke to at least three witnesses and thereafter recommended that the petitioner was liable to compensate the employee for his words and behaviour towards her.

In addition to paying a compensation of over Rs. 19 lakhs, the committee recommended that the petitioner apologise to the employee and constitute an internal committee in line with the 2013 Act in his company.

The District Collector also endorsed these recommendations and directed its implementation by the petitioner. However, the petitioner has challenged the manner in which the entire process of inquiry was conducted by the complaints committee.

As per his petition, the first issue arises with the complaint itself. Apart from denying any form of sexual harassment from his end, the petitioner has pointed out that the employee never made a written complaint alleging sexual harassment. The proceedings commenced on the basis of an anonymous complaint. On the first interview, the employee also refuted having written the letter. Further, as submitted in the petition, the employee denied that the petitioner had acted in a manner that amounted to sexual harassment.

To the contrary, the petitioner points out that the differences between him and the employee related to the termination of her services from the company. The petitioner had terminated the employee last year, citing discrepancies in the maintenance of company accounts. Disputes in relation to the same are pending before various forums including the police authorities as well as the labour and civil courts, states the petition.

Since there was no written complaint alleging any sexual misbehaviour on his part, the petitioner has contended that the local committee had no jurisdiction to carry forward the proceedings.

While this was the case, the local committee refused to allow the petitioner any legal representation citing Rule 7 (6) of the 2013 rules, which has been challenged as violative of Articles 14, 19 and 21 of the Constitution.

The issue that has been highlighted is that the complaints committee had based its conclusions on witness testimony provided over telephone. Neither were the witnesses sworn on oath nor was the petitioner allowed to be present or conduct a cross-examination when the testimony was made.

Therefore, the petitioner has challenged the proceedings of the Committee as not only devoid of jurisdiction, but also biased. Buttressing this argument, the petitioner has also pointed out that one of the witnesses examined was his estranged wife, with whom he currently shares an antagonistic relationship. The petition argues that the Committee ought to have been circumspect in accepting her testimony, more so when she herself volunteered to provide testimony against the petitioner.

In this backdrop, the petitioner has called on the High Court to quash Rule 7(6) of the 2013 Sexual Harassment Rules as ultra vires the Constitution, while praying that the complaint committee's orders against him also be quashed.

On hearing initial submissions, Justice Raja Vijayaraghavan issued notice to the State of Kerala and also stayed the operation of the committee's directions for a period of two months.

Read the Order:

SH Rules Challenge - Kerala HC Order - Notice - Dec 2018