TaxTMI 
TaxTMI 
2018 (5) TMI 2193
X X X X Extracts X X X X
X X X X Extracts X X X X
....Director of Air France, who was transferred to India as Marketing Manager, Cargo (India, Nepal and Bhutan) in 2013. The Appellant alleges to being harassed by Brun on multiple occasions and cited several incidents supporting her averment that she was subjected to repeated sexual advances inspite of her repeated or express refusal. 3. The Appellant finally confided in two people from Air France at a meeting in Delhi. She alleged that in order to victimise her for complaining against incidents of Sexual Harassment, she was compelled to submit her resignation on 23.09.2017 by three people in Air France and claims that this was under the threat of immediate termination along with being threatened against getting any letter or documents of service and provident fund/gratuity from the company. She alleges that when she tried resisting, she was gheraoed and molested by three male senior executives who got the resignation letter scribed and signed by her for reporting against her senior. After getting the resignation forcefully signed, she was asked to leave the premises within maximum half an hour without her belongings. When she requested them to collect her personal belongings and da....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation as she was not convinced of the independence of the external member appointed by the ICC; they went unanswered. 7. The Appellant raised objections with regard to the manner in which the proceedings of the ICC were conducted. Her objections included choice of a neutral venue, right to have her mother attend the proceedings, cross examination of and by the accused among other grounds. The Appellant contends that the conduct of the Air France in constituting an ICC not in compliance with the guidelines issued by the Supreme Court in the case of Vishaka and others vs. State of Rajasthan and Others, 1997 (6) SCC 241 ("Vishaka Guidelines") and the Workplace Harassment Prohibition Act and that the ICC was conducting its proceedings in a manner which is not in accordance with law or the principles of natural justice. It is also contended that Air France is duty bound to ensure the enforcement of all laws and safeguards related to women and is also duty bound to redress violation of these laws and Constitutional provisions. She invoked the writ jurisdiction of this Court. 8. Air France urged a preliminary objection with respect to the jurisdiction of this Court to entertain the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o drew the attention of this Court to a notice issued by Air France indicating the constitution of the ICC for its various offices. She pointed out that a common ICC had been constituted for the offices of Air France at Gurgaon and Delhi. 11. The Appellant also challenged the constitution and procedure of the ICC as being contrary to the provisions of the Workplace Harassment Prohibition Act, 2013. With regard to the constitution of the ICC, the Appellant has contended that the ICC constituted by the Respondent No. l is in violation of Section 4 (c) of the Workplace Harassment Prohibition Act as no NGO member familiar with the issue of sexual harassment was appointed on the Committee. The external member appointed on the committee is not associated with a non-governmental organization and his qualifications have not been informed to the Appellant. Further, the external member, Mr. Michael Dias was in fact a labour lawyer and had not disclosed that either he or his organization, (i.e. Employers Association) has not been engaged for profit by the Air France before and/or there is no conflict of interest. The counter affidavit of Air France suggests that his appointment was made in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....i, who was seized of the appellant's complaint did not investigate the matter to ensure that the ICC was constituted in accordance with the Vishaka Guidelines and the Workplace Harassment Prohibition Act. DCW has similar powers o that possessed by the National Commission for Women, and was duty bound under Section 10 of the Delhi Commission for Women Act, 1994 to investigate into the matter on receipt of the complaint from the Appellant to ensure that the Respondent No. l had constituted an ICC in accordance with the Vishaka guidelines and the Act and that the said committee was conducting the proceedings in accordance with the law. 14. Counsel for Air France disputed the jurisdiction of this court in the present matter by contending that the appellant was working in the Gurgaon office of Air France and that no part of the cause of action arose in Delhi as none of the alleged incidents of sexual harassment have been alleged to have happened in Delhi. Accordingly, it has been argued by the respondent that DCW has no authority over the proceedings of the ICC which is acting as the committee for the Gurgaon office in the present case. They have argued that the concerned authority, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that arises for determination in the present appeal is whether the learned Single Judge has erred in dismissing the case on the ground of absence of territorial jurisdiction. At the outset, Air France objects on the issue of jurisdiction of the court to entertain her writ petition. Its reply affirms that no cause of action has arisen within the National Capital Territory of Delhi and, therefore, this Court does not have the jurisdiction to entertain the writ petition as the cause of action did not arise within Delhi. The respondent contended that the office of Air France in Delhi is only a communication address and thus, not a proper functional office. Counsel appearing for the appellant however contended that this Court has jurisdiction to entertain the present petition as Air France's registered office is located in Delhi. She submitted that since the constitution of ICC has been challenged in the petition as one of the principle issues raised, this Court has jurisdiction to examine the matter due to the fact that a common ICC had been constituted for the offices of Air France at Gurgaon and Delhi. 18. Under Article 226(1) of the Constitution of India, every High Court has....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rity residing within the jurisdiction of that High Court or within whose jurisdiction the cause of action in whole or in part arises. 20. The Appellant has contended that Air France has its registered offices in Delhi. The company has not disputed this fact but asserted that the Delhi office is merely a communication address. The appellant disputes this assertion by suggesting that the ICC was constituted for both the Delhi and Gurgaon office and that the letter of termination of employment issued to the appellant shows that they were employed by the Delhi office. Therefore, it cannot be said that the Delhi office is only a communication address. Air France argued that mere existence of registered office cannot confer jurisdiction on this Court and relied on the judgment of the Supreme Court in the case of Eastern Coalfields (supra) wherein the Supreme Court held that the mere fact that an office and/or residence of the respondents is situated in the territorial jurisdiction of the Court is not sufficient to confer jurisdiction on the Court. Air France reasoned that there was nothing to prove that there was any need for approval from the head office or any connection between the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the Workplace Harassment Prohibition Act by not appointing an independent and impartial member who works at a nongovernmental organisation. 23. In regard to the objection with respect to lack of territorial jurisdiction to entertain and decide the writ petition, the court is of the opinion that in light of the fact that the ICC constituted by Air France is for both the Delhi and Gurgaon office, the jurisdiction of the court over the proceedings of the ICC has been established. Moreover, the court also notices that the appellants' appointment letter was issued by Air France's office at Delhi. She also stated in her complaint that the letter of resignation was coerced from her in Delhi. Therefore, this court holds that in the present case, it is clear that the cause of action is directly related to the constitution and functioning of the ICC and since the ICC has been constituted both for the Delhi as well as the Gurgaon office, and further, Delhi office being the registered office of Air France in India, all these facts constitute direct nexus to the cause of action in this case. Therefore, to this extent, the facts in the present case can be distinguished from those in the cas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment." 27. Air France contended that the independent person appointed is a lawyer with expertise in deciding labour issues. His curriculum vitae is on record for confirming the averments made with regard to the criteria for his selection. According to Air France, the requirement of a person familiar with issues pertaining to sexual harassment under Section 4(2)(c) of the Workplace Harassment Prohibition Act is to be read with Rule 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 which provides that this would be a person who is familiar with labour, service, civil or criminal law. However, Air France is clearly in error in relying on Rule 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 which is to be applied only to Section 7(1)(c) of the Workplace Harassment Prohibition Act which deals with the constitution of the Local Complaints Committee and not the ICC as in the instant case. 28. There is nothing on record, in the facts of this....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... adopted by the ICC in the present case. In all, the Committee appears to have not conducted the proceedings according to principles of natural justice. It is contended by the appellant that no charges were framed by the ICC, that independent witnesses admitted to having read the evidence of the accused and yet, they were not disqualified, the Appellant was forced to cross examine and be cross examined by the accused and there was apparent unresponsiveness on the part of Respondent no. 1 in dealing with the complaint of the Appellant. The no-cause sudden termination of employment of the Appellant also raises concerns regarding there being bias in the proceedings of the ICC. Apart from noncompliance with employers in the composition, and the alleged bias by members of the ICC, that body did not take steps to lend confidence or assurance to the Appellant as she repeatedly raised concerns of not feeling comfortable in the manner in which the proceedings were being conducted and also expressed her discomfort in being around the accused, which was so vital for the fairness in the enquiry, and mandated by Vishaka (supra).This court is of the opinion, that although allegations about the c....