"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Tuesday, November 11, 2014

Partial Setting Aside of Arbitral Awards & Compensation for Breach of Vishaka Guidelines

A recent decision of the Madras High Court is extremely interesting from two perspectives. The first issue is that the Single Judge, after an incisive analysis, rejected the prevailing view (especially in the Madras High Court-see this article titled "Anugraha Engineers & Contractors V. Union of India, 2014 (3) CTC 116: A Critique" noting and criticising the same) that awards could not be partially set aside or modified by a court hearing a petition for setting aside an award under S. 34 of the Arbitration and Conciliation Act, 1996 (1996 Act).

The second interesting point is that the judge held that where there was a complaint of sexual harassment, non-constitution by the employer of a committee as per the Vishaka Guidelines (at the time of the complaint, the Sexual Harassment of Women at Workplace Act 2013 was not enacted) was illegal and the employee who had complained against sexual harassment was entitled to compensation from the Employer. In the present case, the court awarded the complainant an ad hoc amount of Rs. 1.68 crores as damages for non-constitution of sexual harassment committee as per Vishaka Guidelines. The court held in this regard:

"137. Therefore, considering the status occupied and the position in which the petitioner was employed in the first respondent organisation and considering the opportunities that she lost on account of the non constitution of the committee, I am of the view that the grant of an amount equivalent the severance benefit of Rs.1,68,00,000/-, as compensation towards the 12th head of claim, would be appropriate."

The decision in Ms. G. v. ISG Novasoft Technologies Ltd. is accessible from this link (pdf).

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