validity of termination while sexual harassment

Gujarat High Court on validity of termination while sexual harassment is alleged

In Mohini Pessuram Tilwani vs. Union of India and Ors. decided by the Gujarat High Court on 30 April, 2019, the Court held that an order for termination cannot be arbitrary or punitive in nature and treatment of employees must be fair. There must be rationality in action and proportionality in taking the decision to terminate the services of employees.

The facts of the case are that Ms. Mohini Tilwani (“Petitioner”) stated in her petition that she was sexually harassed by the acting Managing Director of Respondent no. 3, a wholly owned subsidiary of National Dairy Development Board (“NDDB”) to whom she was reporting. She stated that in order to make her feel inferior and uncomfortable, he would repeatedly harass her by making lewd gestures and sexual advances. She was not invited to meetings where she was otherwise concerned, was intimidated in office by creating a hostile environment, her day to day activities including her personal life were subjected to stalking and vigil by certain employees. She stated that once she noticed one of her subordinates following her under his instructions. In the petition she narrated the incident on 28th November, 2017 when he touched her inappropriately, lost his temper and abused her. The Petitioner resisted these attempts, post which he threatened symbolically to get her killed. When she reached home, she was informed by her juniors that her office cabin was broken. She, in extreme shock and pain was in the process of filing a complaint with the police on the same day when her services came to be terminated on the same day (i.e. 28th November, 2017). On 29th November, 2017, a counter FIR was filed against her alleging theft of certain material. She also approached National Commission for Women. A formal complaint was filed with the Internal Committee in January 2018. Ultimately, Petitioner filed the present petition under Article 226 of the Constitution challenging the order of termination dated 28th November, 2017 and asking to be reinstated with all consequential benefits.

The Petitioner submitted letters and communications which stated that her performance had been outstanding and exceptional and that her termination was in contravention of the NDDB Officers’ Conduct, Discipline & Appeal Regulations, 1988, in violation of Code of Personal Ethics and in breach of Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Law”). The Petitioner’s counsel emphasised that the Petitioner’s service tenure was highly appreciated, but within a short-span, the order of terminating her service came to be passed. The order though styled as contractual termination of service was based on different considerations. It was submitted that the order was passed as a punitive measure, which could not have been passed without compliance of principles of natural justice and holding of a full-scale inquiry.

The respondent’s counsel argued that the order of termination clearly showed that the termination was to end contractual arrangement only and nothing more. It was submitted that when there was no basis it was not permissible for the petitioner to connect any other event with the order of termination. It was submitted that the outstanding performance rated for the petitioner could not be a debarring factor for the employer to put an end to the contract.

The High Court of Gujarat stated that it is not necessary (for this Court) to undertake the exercise of finding the truth or otherwise of the allegations of sexual harassment made by the Petitioner.  It also states that such an exercise is neither relevant nor required to be taken under writ jurisdiction. Therefore, the Court did not adjudicate on the veracity of the allegations regarding sexual harassment and refrained from expressing any opinion on it. However, it stated that “what is relevant is whether the allegations about the sexual harassment even when they remain in the realm of allegations only were in the root or in the foundation of taking action of passing the termination order against the petitioner.”

In coming to a conclusion regarding her termination, the Court looked at the history of Petitioner’s employment with Respondent no. 3 and noted that “…the quick sequence of events was unfathomable in view of the background facts of rating the Petitioner high for her exceptional performance, increasing her salary virtually double within months…”

The Court held that the Respondent no. 3, being an organ of State authority is bound by the tenets and mandates of Article 14 of the Constitution to act in just, fair and non-arbitrary manner in all its functional spheres and in all decisions including the treatment to be meted out to its employees, servants and officers. The conduct on part of the Respondent no. 3 was incomprehensible, both in terms of rationality in action and proportionality in taking the decision to terminate the services of the Petitioner. In stating this, the Court said that “the whole defence was sham and was raised for the sake of raising as already noticed even in terms of time-leg, there was a close proximity between the recognition and apprehension for the services of the petitioner on one hand and the abrupt order of termination on the other hand. Both did not have any conceivable cause and effect relationship. It at all there was any nexus, it was in terms of arbitrariness.”

The Court further held that, “All the above facts and events as obtained cumulatively, created a strong foundation on which the termination order was shown to have been erected. The foundational factor, even if circumstantial in nature, was too strong to resist a conclusion that it was a retaliatory act. Such was a reasonable and inescapable conclusion in the facts and circumstances of the case. There was much more than what met the eyes in the termination order. Though passed by styling it a contractual termination, the order clearly appeared to have been guised under different facts and foundation.”

In light of above facts and circumstances and the reasons supplied, the Court held that Petitioner deserves the relief prayed for. It said that “The order of termination has to be held arbitrary and in violation of the tenets of Article 14 of the Constitution. It was a punishment inflicted on the petitioner in disguise of contractual termination which was by throwing to the winds even the bare minimum principles of natural justice…”

Therefore, the order dated 28th November, 2017 passed by Respondent no. 3 terminating the services of the Petitioner was set aside and Respondent No. 3 was directed to reinstate her in service.

Please note: While the judgment states that the Petitioner had alleged sexual harassment and had approached the police, it does not mention the reason for the delay of nearly 3 months in approaching the Internal Committee.

– Priyanka Pai, Associate

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