SC dismisses Som Mittal's plea

The issue whether the head honchos of a company would be liable for the safety of women employees working night shifts has come to the fore again with the Supreme Court (SC) today allowing for the prosecution of Nasscom president Som Mittal.

Pratibha Srikant Murthy, an employee with HP GlobalSoft, was raped and murdered by a driver Shiva Kumar on December 13, 2005. Mittal was then the managing director of the BPO firm. The Karnataka police had filed an FIR accusing the BPO chief of violating statutory orders. The state government then lodged a case under Section 25 of the Karnataka State Shops and Commercial Establishments Act, 1961. The section, which was amended in 2002, stipulates that establishments should provide transport and adequate security to women employees in night shifts.

Mittal had moved the Karnataka High Court to quash the prosecution charges arguing that he was exempt from liability under the Act. The High Court had rejected his petition. Now, the Supreme Court, too, has dismissed his appeal allowing the prosecution to continue.

Several attacks on women BPO employees in recent times, especially in Bangalore, have raised concerns about safety but this is the first time a company head will be tried for his role. "The SC decision is a reiteration of existing law that the management of a company, accused of any offence, cannot escape liability. It also signals that BPOs need to be careful regarding legal compliance in the domestic space," said Pavan Duggal, a Supreme Court lawyer and expert in IT laws.

Section 25  of the Act of 2002 prohibits employment of women and young persons during night. However, the state the government issued a notification exempting Information Technology and Information Technology enabled Services (IT-ITeS) establishments from the provisions of this section subject to the condition that the establishment provides facilities of transportation and security to women employees and subject to any other condition as may be specified in  the notification.

Section 3(1)(h) of the Act, on the other hand, states that a  person occupying positions of management in any establishment is exempted from the liability. Mittal argued that he came within these exemptions. However, the state government argued that an employer meant a person having charge of or owning or having ultimate control over the affairs of an establishment and includes members of the family of an employer, a manager, agent or other person acting in the general management or control of an establishment. These issues will now be sorted out at the trial stage.

"In the matter concerning the order passed by the Supreme Court in response to a petition filed by Som Mittal (former managing director, Hewlett-Packard GlobalSoft), HP India would like to clarify that the court has not pronounced either Mittal or HP guilty on any count. It has only directed Mittal to urge all the contentions as available under law including maintainability of the complaint before the trial court. However, since the matter is subjudice, HP would not like to comment on any specifics related to the case at this point," stated an HP press statement.