author Anirudh Agarwal

calender July 6, 2023

Delhi High Court: POSH Act Applicable even if Complainant and Harasser Work in Different Departments

Introduction

The Hon’ble High Court of Delhi in the recent matter of Dr. Sohail Malik v. Union of India & Anr. dated June 30, 2023, comprising of Hon’ble Justices C. Hari Shankar and Manoj Jain, firmly stated that there is absolutely nothing, in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”), which limits its scope only to cases where a woman employee is sexually harassed by another employee working in her own office, and accepts its application where the delinquent employee is employed elsewhere.

Facts

The issue arose in the backdrop of a complaint addressed by an officer in the Department of Food and Public Distribution, Ministry of Consumer and Public Distribution, alleging that the petitioner, who is a 2010 Batch officer of the Indian Revenue Service, had sexually harassed her. The complaint was presented by the complainant before the Internal Complaints Committee (“ICC”) constituted under the POSH Act. The petitioner moved the learned Tribunal by questioning the jurisdiction of the ICC to examine the said complaint.

Issues

Two issues which are placed before the Hon’ble High Court are as follows:

  • Whether a woman employee in one department of the Government of India who is sexually harassed by an employee of another department, be entitled to invoke the POSH Act.
  • Whether the ICC of one department had the jurisdiction to issue notice against an employee who belongs to another department.

Findings and Observation of the High Court

The High Court strongly expressed that that in an era where women are equaling men in every professional achievement, there can be no compromise on objectives of the POSH Act. Any interpretation of the provisions of the POSH Act which downplays or impedes complete achievement and implementation of its objectives, which is to ensure a safe working environment for women, has to be firmly eschewed.

The High Court observed several avowed objectives of the POSH Act including but not limited to ensuring that women’s right to equality, life and liberty is not violated or compromised, providing a secure and friendly work environment, equality in employment, ensuring women are treated with due respect, decency, and dignity at the workplace, etc.

Further, the Hon’ble Court referred to the judgements of Shailesh Dhairyawan v. Mohan Balkrishna Lulla and Richa Mishra v. State of Chhattisgarh and observed that the rule of purposive construction has replaced the rule of plain meaning of the statute as the golden rule of interpretation of statutes.

“The principle of ―purposive interpretation or ―purposive construction is based on the understanding that the court is supposed to attach that meaning to the provisions which serve the ―purpose behind such a provision.”

The court additionally elucidated upon section 11(1) of the POSH Act by stating that the use of the words “in accordance with the service rules applicable to the respondent” itself indicates that the statute has kept in mind a possibility where the respondent may be governed by service rules which are not those which apply to the complainant or to the department where the complainant is working.

Therefore, provisions under the POSH Act can be invoked in the event, a woman employee working in one department is sexually harassed by an employee of another department. Furthermore, the Hon’ble Court observed that there is nothing under section 11 (1) of the POSH Act which restricts its application to employees who work in different departments. Hence, the ICC of one department has the jurisdiction to issue notice against an employee who belongs to another department.

Conclusion

It is pertinent to note that the provisions of the POSH Act must be understood and applied in alignment with the constitutional imperative. The Court firmly opposed any interpretation of the POSH Act that would undermine or obstruct its intended goals and purposes. Emphasis should be laid down in terms of preserving the integrity and effectiveness of the POSH Act by ensuring that its provisions are given due regard and not diluted in a manner that compromises its underlying principles and is followed and adhered to by both the governmental organizations as well as the private organizations.

“Equalizing of the sexes in every aspect of life is, therefore, a constitutional imperative. The working environment is required to be as safe and secure for women, as it is for men. Even an apprehension, by a woman, that her safety might be compromised or endangered in the workplace is, therefore, abhorrent to our constitutional ethos.”

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