DISCLAIMER: This article was written before R K Pachauri was sacked, but we are sharing it with our readers so it gives them the context and perspective on this vital story, especially on the unconscionable delay in acting against him.
Feet of Clay
- TERI’s Governing Council comprises reputed names such as Deepak Parekh, Kiran Mazumdar Shaw and Naina Lal Kidwai
- Rules of Service allow the management to suspend a person accused of misconduct
- Sexual harassment amounts to misconduct under law
The case of R K Pachauri brings out the most interesting contraindications in the law relating to sexual harassment at the workplace. Has it improved the situation or made it worse?
Consider the case of the woman employed in TERI as a researcher who lodges a criminal complaint against Pachauri. What should the Management Governing Council do on receipt of a complaint from her? At this stage it is important to understand TERI’s legal character. It is a society registered under the Societies Registration Act, 1860. It has been argued that it is an NGO.
Be that as it may, it is indeed funded by various ministries of the Indian government and is almost a wing of the government, its managing director and chairperson being the expert and the spokesperson of the government on issues of climate change.
TERI’s Governing Council consists of the honchos (I don’t have an equivalent for women) of big businesses in India – HDFC Chairman Deepak Parekh, Biocon Ltd Chairman and Managing Director Kiran Mazumdar Shaw who is reputed to be one of the wealthiest women in the world, and Naina Lal Kidwai, who heads HSBC. A question to be posed to them is, does the organisation they head have any rules and regulations of service applicable to all employees? Does Pachauri have a contract of employment? Can they disclose the contract?
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Power to Suspend
All rules of service contain a clause giving the management the power to suspend a person against whom a complaint of misconduct is lodged. The law in which they take shelter is the Sexual Harassment at Workplace Act which mandates that sexual harassment be made misconduct under the rules by all employers. Has this been done by TERI, and let us now forget that the law applies to NGOs as well?
This brings me to the question, why was he not handed out a charge sheet for the alleged misconduct? Did the Governing Council consider suspending him pending the enquiry? If not, why not? Was this not all the more necessary given that he was the head of TERI? Or do we take it that there are simply no rules, which apply to him?
The law indeed permits an employer to terminate the services of an employee without giving any notice or holding an enquiry of a management cadre employee in the private sector, this can be done under the terms of employment. Now comes the question, does he have a contract of employment at all?
Pachauri Isn’t TERI
After several months the Governing Council claims “their hands are tied” due to the fact that Pachauri got a stay on the recommendations of the internal complaints committee. To begin with, they had 10 days to take cognizance of the report before he got a stay from a labour court ex parte. Secondly, the law does not prevent suspending the person pending the report of the internal complaints committee. Thirdly, what prevented TERI from going to court and getting the stay vacated? Pachauri is not TERI nor is the reverse true, so why have the two identities been merged?
Why was he allowed to go on leave? Why not a suspension? By allowing him to go on leave, the Governing Council left the door open for him to approach a criminal court and get an order allowing him to be put back to work and also left the door open for TERI to belatedly argue “our hands are tied”.
A great failure of the worthy industrialists cannot be cited. The question now to be asked is on whose side is the management? Even if one assumes that they are meant to be equidistant from both, have they been unbiased given these facts? Letters to the Governing Council by activists went unaddressed. Pachauri is also the chancellor of TERI University, which has been given deemed university status by the UGC with the approval of for the HRD Minister.
A letter addressed to the Minister was never replied to and no action was taken against him. One wonders what example he is setting to students as chancellor.
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Double Standards
At the same time, one sees double standards. He was forced to resign from the international body but back home he is in a ‘soft’ law state “so where is the need to resign?” This is a common pattern with multinationals of all varieties, one law overseas in the US, another for India. Standards of morality are elastic for them.
Since his return from voluntary leave, he has dispensed with the service of the vice-chancellor of TERI University. Leena Srivastava who was holding office in his absence, set up a shuttle bus between the head office and his Defence Colony office. A few days prior to his joining there was an office order that all research staff will retire at 60, subject to just exceptions that he may make! What about the fact that he himself is 74?
This, in my opinion is a consequence of the fact that the Governing Council turned a blind eye while employees were terrorised and women employees complained that he was sexually harassing them. Since his joining the head of the internal committee has gone on leave for fear of being victimised.
Truly, the institution is responsible for victimising women, why blame the courts? The fault lines in the system are clear, no law can work unless there is a will to make it work among institutions responsible for implementing them.
(The writer is a former Additional Solicitor General of India.)
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