IMPORTANT POINTS
When the statute had been framed taking into account various aspects involved in the matter, the complaint should be one relating to sexual harassment. Section 3 of the Act is in the form of a prohibition-Going by the UGC Regulations, sexual harassment has to occur based on “an unwanted conduct with sexual undertone” or “in relation or connected with any behaviour that has explicit or implicit" "sexual undertones".

ORDER :

Shaffique, J.

These cases had been referred to us based on a reference order dated 15/9/2020. The substantial issue raised in the writ petitions was whether a complaint given by the 8th respondent in WP(C) No. 9219/2020 can be the basis of an enquiry under the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as 'the 2013 Act').

2. The writ petitioner contended that the allegations in the complaint given by the 8th respondent did not disclose any form of sexual harassment coming within the purview of the 2013 Act. Reference was also placed to the judgment of the learned Single Judge of this Court in Anil Rajagopal v. State of Kerala and Others [2017 (5) KHC 217], wherein the learned Single Judge after referring to the definition of 'sexual harassment' under Section 2(n) of the 2013 Act and S.3(2) held at paragraph 9 as under:

“9. As already noticed, there is no sexual harassment complained of and a solitary allegation of any or all of the acts enumerated under S.3(2), cannot constitute an offence under the Act of 2013. Any such act should be connected with and in relation to any act or behaviour of sexual harassment. This Court also does not find any allegation of a promise, threat or an offensive or hostile work environment or a humiliating treatment against the 6th respondent, from the complaint; which is in connection with an act or behaviour of sexual harassment. There is no allegation that the purported harassment was intended at sexual exploitation of the complainant; which can only be if there is any allegation as such of a sexual offence."

Learned Single Judge while considering the above matter however did not agree with the above proposition. It was held at paragraphs 6, 7 and 8 of the reference order as under :-

“6. I am of the view that the definition given in Section 2 starts with "unless the context otherwise requires". Clause (n) provides that sexual harassment will include the acts and behaviour mentioned therein. Therefore, the act or behaviour provided therein is not exhaustive; thus it is an inclusive definition. Section 3 adds to some more circumstances which can be termed as sexual harassment. Both those provisions require to be construed having regard to the legislative intent behind the Act 2013. It is relevant to note that the Apex Court in the judgment in Bharat Coking Coal Ltd. v. Annapurna Construction: (2008) 6 SCC 732, while construing the definition of the term "court" in the Arbitration and Conciliation Act, 1996, which was also an inclusive definition as in the 2013 Act, reiterating the judgments in State of Maharashtra v Indian Medical Assn: (2002) 1 SCC 589 and Pandey & Co. Builders (P) Ltd. v. State of Bihar :(2007) 1 SCC 467, held that in given cases where the definition clause is prefaced by the words like 'unless the context otherwise requires' it can be opined that the legislature intended a different meaning. The aforesaid proposition was approved by a larger Bench of the Apex Court in State of Jharkhand v. Hindustan Construction Co. Ld.: (2018) 2 SCC 602.

7. It is also relevant to note the judgment in Tata Power Co. Ltd. v. Reliance Energy Ltd.: (2009) 16 SCC 659 where the Apex Court construed the definition clause in Section 2 of the Electricity Act, 2003, which prefixed the words "unless the context otherwise requires". It was held that the meaning should be assigned "subject to the context". In para.97 of the judgment it was held as follows:

"97. However when the question arises as to the meaning of a certain provision in a statute, it is not only legitimate but proper to read that provision in its context. The legal principle is that all statutory definitions have to be read subject to the qualification variously expressed in the definition clause which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for th