Handling of Complaints of Sexual Harassment against Delhi Higher Judicial Service and Delhi Judicial Service

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Handling of Complaints of Sexual Harassment against Delhi Higher Judicial Service and Delhi Judicial Service

 

A committee of judges headed by Justice Gita Mittal & three other Judges has made the following recommendations, as per note uploaded on website of Delhi High Court (in the form of an Annexure I), with regard to handling of “Complaints of sexual harassment against officers of the Delhi Higher Judicial Services and Delhi Judicial Services:

 

1.            It has been brought to the notice of the committee that clarity is lacking with regard to the manner in which complaints of sexual harassment, if any, against officers of the Delhi Higher Judicial Services ('DHJS') and Delhi Judicial Services ('DJS') have to be dealt with.

2.            In the judgment reported as Vishaka & Ors. -vs. State of Rajasthan & Ors., (1997) 6 see 241, the Supreme Court of India dealt with a class action by certain social activists and NGOs with the aim of focusing attention towards incidents of sexual harassment. The writ petition was filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India; for assisting in finding suitable methods of realization of the true concepts of gender equality and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation.

3.            In its judgment, the Supreme Court expressed grave concern with complaints of sexual harassment at workplace and laid down the guidelines and norms for due observance at all work places or other institutions for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse. Guideline no. 3 titled as "Preventive Steps" required government/ private employers to undertake the following:

 

"Preventive steps:

All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

(a)-Expressed prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.

(b)-The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual

The Supreme Court directed that in the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, the guidelines laid norms specified for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose, this judgment would be treated as the law declared by this Court under Article 141 of the Constitution of India.

 

4.            Almost fourteen years later, the Government of India enacted the Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which took effect from 9^th December, 2013. This law extends to whole of India. The courts in Delhi are also governed by this legislation.

5.            “So far as, Courts are concerned, a complaint of sexual harassment 'may arise not only against Judge but also against a court staff, lawyer, litigant, member of any authority associated with the dispensation of justice (for instance, the police) etc. The complainant could also be any of the above persons.

6.            Information has been received that the Committees have been randomly constituted by the District Judges in the 'District Courts, which are not necessarily in the manner statutorily prescribed by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

 

7.            For the present, we confine this consideration to complaints of sexual harassment against judicial officers only of the Delhi Higher Judicial Services (DHJS for brevity) and Delhi Judicial Services (DJS for brevity). These Services are governed by separate disciplinary rules.

 

8.            The Committee has perused the report requisitioned from Mr. Arun Bhardwaj, Joint Registrar (Rules) placing the legal provisions applicable for inquiring into allegations of sexual harassment against officers of DHJS and DJS.

 

9. So far as the statutory position is concerned, Section 4 of the Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred as 'the Act') mandates constitution of the Internal Complaints Committees which are required to be constituted as under:

4. Constitution of Internal Complaints Committee

(1) Every employer of a workplace shall XXX,

 

10. At this stage we may note Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which provides as under:

"13. Inquiry Report.-(1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, XXX

 

Complaints of sexual harassment against officers of Delhi Higher Judicial Services ('DHJS')

11. Let us first and foremost examine the rule position governing the DHJS. Officers of the Delhi Higher Judicial Service are governed by the Delhi Higher Judicial Service Rules, 1970 (DHJS Rules hereafter). Therefore, recourse has to be made to the residuary powers in these rules. Rule 27 of these Rules which so provides, reads as under:

 

"27. RESIDUARY MATTERS: -In respect of all such matters regarding the conditions of service (or which no provision or insufficient provision has been made in the rules, the rules, directions or orders for the time being in force, and applicable to officers of comparable status in the Indian Administrative Service and serving in connection with the affairs of the Union of India shall regulate the conditions of such service. JJ

It is noteworthy that in these rules, no specific provision regarding a complaint of sexual harassment against an officer of DHJS has been provided. Therefore, the complaint of sexual harassment against a DHJS officer being a matter not provided for in the DHJS Rules, the rules, directions or orders for the time being in force - and applicable to officers of "comparable status" in the Indian Administrative Services (hereinafter referred to as "lAS") apply and require to be examined.

12          The All India Services (Discipline and Appeal) Rules, 1969 provide the manner in which disciplinary proceedings are to be undertaken against members of the lAS. There is no specific provision in these Rules covering proceedings in a complaint of sexual harassment against a government servant. 

13          The officers of comparable status in the lAS are also governed by the All India Services (Conduct) Rules, 1968.

14          After the above directions of the Supreme Court, the Central Government maintained the rules as they were. However, it separately framed the All India Services (Prevention of Sexual Harassment) Regulations, 1998 which came into force w.e.f. 24th July, 1998 and apply to all officers of the lAS. The relevant extract thereof reads as follows:

 

"The All India Services (Prevention of Sexual Harassment) Regulations, 1998.

In exercise of the powers conferred by Sub-section (1) of section 3 of the All India Services Act, 1951 (61 of 1951), the Central Government in consultation with the Governments of the States concerned hereby makes the following Regulations under Rule 3 of the All India Services (Conduct) Rules, 1968, namely:

1. Short title:

These regulations may be called the All India Services (Prevention of Sexual Harassment) Regulations, 1998.

(2) They shall come into effect on the date of their publication in the Official Gazette.

2. Definition:

Sexual harassment includes such unwelcome sexually determined behaviours (whether directly or otherwise) as:

(a) Physical contact and advances;

(b)A demand or request for sexual favours;

(c) Sexually coloured remarks;

(d) Showing pornography or

(e) Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

 

3. Prohibition of sexual harassment o/working women

(1) Every member of the Service shall take all possible steps to ensure that all Government Servants for the time being under his control and authority keep away from any act of sexual harassment of working women.

(2) Every member of the Service who is in-charge of a work place shall take appropriate steps to prevent sexual harassment to any woman at such working place.

(3) No member of the Service should indulge in any act of sexual harassment of any woman at working place ".

 

By virtue of Rule 27 of the DHJS Rules, these Regulations are also applicable to the Officers of DHJS and made sexual harassment of Women at the workplace an act of misconduct by the officer rendering him liable for disciplinary action.

 

15. The Central Government also added a proviso to Rule 8(2) of the All India Services (Discipline and Appeal) Rules, 1969 (which is also applicable to all lAS officers including those of a status comparable with DHJS officers) vide Notification dated 18^th June, 2014 which reads as under:

((Provided that where there is a complaint of sexual harassment within the meaning of rule 3 of the All India Services (Prevention of Sexual Harassment) Regulations, 1998, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been made for the Complaints Committee for holding the inquiry into the complaints of  sexual harassment, the inquiry as far as practicable, in accordance with the procedure laid down in these rules ".

Therefore, as, per Rule 8(2) of the All India Services (Discipline and Appeal) Rules, 1969 the complaints committee is deemed to be the inquiring authority appointed by the disciplinary authority for the purposes of these rules. It is required to follow the procedure prescribed under these Rules for its inquiry. As a result of the above, the report given by the Internal Complaints Committee constituted under section 4 of the Sexual Harassment of Women at Workplace (Prevcnti0n, Prohibition and Redressal) Act, 2013 would be a report subn1itted by a duly constituted inquiry.

 

The amended Rule 8(2) of the All India Services (Discipline and appeal) Rules, 1969 also makes it clear that there is no requirement of second inquiry authority nor a second inquiry report regarding legations of sexual harassment (a 'misconduct' within the meaning of the expression for disciplinary proceedings) against officers of DHJS.

 

Complaints against officers of the Delhi Judicial Services

16. So far as, officers of DJS are concerned, they are governed by Delhi Judicial Service Rules, 1970 (hereinafter referred to as "DJS Rules"). Again no special provision about a complaint of sexual harassment by an officer of DJS has been provided in these Rules. Therefore, recourse has again to be made to the residuary power in Rule 33 of these Rules which reads as under:

 

"RESIDUARY MATTERS: In respect of all such matters regarding the conditions of service for which no provision or insufficient provision has been made in these rules, the rules or orders, for the time being in force, and applicable to Government Servants holding corresponding posts in connection with the affairs of the Union of India shall regulate the conditions of such service.

 

17. Disciplinary proceedings against the government servants holding corresponding posts (as officers of Delhi Judicial Service) are conducted under the CCS (Conduct) Rules, 1964. By virtue of Rule 33 of the DJS Rules, the CCS (Conduct) Rules, 1964 are applicable to the officers of DJS.

 

18          Rule 3C of the CCS (Conduct) Rules, 1964 titled as "Prohibition of Sexual harassment of Working Women" makes sexual harassment a misconduct rendering the official concerned as liable for disciplinary proceedings. We set down hereunder this provision which reads as follows:

 

"3C. Prohibition of sexual harassment of working women

(1) No Government .servant shall indulge in any act of sexual harassment of any women at her work place.

(2) Every Government servant who is in charge of a work place shall take appropriate steps to prevent sexual harassment to any woman at such, work place.

Explanation -For the purpose of this rule, "sexual harassment" includes such unwelcome sexually determined behaviour, whether directly or otherwise, as -

(a) physical contact and advances;

(b) demand or request for sexual favours,'

(c) sexually coloured remarks;

(d) showing any pornography; or

(e) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

 

19          In the order dated 26^th April, 2004 in Writ Petition (Crl.) No.173177/1999 (Medha Kotwal Lele & Others v. Union of India & Others) the Supreme Court has directed that "the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the rules.' As a result of the above cited judgment, Sub-Rule 2 of Rule 14 of the CCS (CCA) Rules, 1965 was amended to specifically provide that the Complaints Committee shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purposes of these rules and the report of the Complaints Committee should be treated as an inquiry report and not a preliminary report.

 

20          The report given by the Internal Complaints Committee constituted under section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act, 2013 thus would be an Inquiry Report submitted by a duly constituted disciplinary authority. This position has been reiterated by the Central Government by notification no. 1101210512001EsU.(A) dated 1^st July, 2004 (GSR 225 dated 1011 July, 2004) which provides that the report of the' complaints committee would be treated as an inquiry report and not a preliminary report.

 

21          We are here concerned with the initiation of action on a complaint of sexual harassment against judges of the District Court. While the procedure stands prescribed by the rules extracted above, the question which remains is as to who would be the competent authority directing the inquiry?

22          Article 235 of the Constitution of India, 1950 vests control over District Courts and Courts subordinate thereto in the High Court. Disciplinary control over officers DHJS and DJS thus vests with the Delhi High Court. As a result, whenever there is any complaint of misconduct which would include sexual harassment against any officer of DHJS or DJS, the inquiring authority would require to be appointed by the Delhi High Court which would examine the allegations against the said officer. The committee appointed would require to be in compliance with the statute, rules and regulations noted above.

23          To sum up, the legal position which therefore emerges is that:

(i) By virtue of the All India Services (Prevention of Sexual Harassment) Regulations, 1998 and Rule 27 of the DHJS Rules, sexual harassment of women at the workplace is an act of misconduct by the officer rendering him liable for disciplinary action.

(ii) By virtue of Rule 3C of the CCS (Conduct) Rules, 1964 and Rule 33 of the DJS Rules, sexual harassment of women at the workplace is an act of misconduct by the officer rendering him liable for disciplinary action.

(iii) The internal complaints committees appointed by the District Judges do not have the competence to examine or inquire into the complaints of sexual harass111ents against officers of DHJS or DJS.

(iv) Complaints of sexual harassment against officers of the DI-IJS and -the DJS are required to be placed before the Full Court on Administrative Side for consideration and appropriate action.    

The Committee recommends that all judicial officers of the Delhi Higher Judicial Services and Delhi Judicial Services be apprised accordingly. Information in this regard also be placed on the website of the District Courts and this Court.”