MANDATE BY SUPREME COURT TO STRICTLY ENFORCE POSH ACT

A&A , Prashaant Malaviya , Nischala Maruvada

May 17, 2023

MANDATE BY SUPREME COURT TO STRICTLY ENFORCE POSH ACT

Introduction

The Hon’ble Supreme Court of India (“Apex Court”) expressed deep concerns regarding the poor implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) by the employers be it government departments, educational institutions, and private sectors, across India. The same was extensively deliberated upon in the recent matter of Mr. Aureliano Fernandes vs. State of Goa and Others[1], wherein Hon’ble Justice A.S. Bopanna and Hon’ble Justice Hima Kohli vide  judgment dated May 12, 2023,  highlighted the inordinate non-compliance by the employers in abiding by the due process and procedure set out in the POSH Act, whilst redressing the complaints filed by women against sexual harassment at workplace. Principally, the Apex Court had observed the deficiencies in conforming to the principles of natural justice; improper constitution of the Internal Complaints Committee (ICC), Local Complaints Committee (LCC) in establishments; irregularly drafted service rules for redressal of complaints related to sexual harassment; and ill implementation of the inquiry process.

Facts

The issue arose in the backdrop of an appeal against the impugned order of the High Court of Bombay Bench at Goa dated March 15, 2012, dismissing the appellant from services and disqualifying him from future employment pursuant to an alleged complaint of sexual harassment filed by the respondent. The appellant contended that the High Court upheld the decision of the Complaints Committee (“Complaints Committee”) constituted by the State University of Goa (“University”), which did not follow the rules of natural justice and breached the procedure laid down under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (“Service Rules”). The appellant pleaded before the Apex Court to set aside the said impugned order.

Issues

The issues before the Apex Court were to examine the procedure and inquiry conducted by the Complaints Committee in relation to the charges levelled against the appellant. Further, the Apex Court acknowledged the plea of the appellant who was denied a fair trial on account of non-conformity of the principles of natural justice by the Complaints Committee.

Findings and Observation of the Apex Court

Considering that the matter arose prior to the enactment of the POSH Act, the Apex Court adjudicated the issues relying upon the Vishaka Guidelines[2] and principles of natural justice recognised under various judicial precedents of the constitution bench. It was observed that succumbing to the anxiety of being fair to the complainant, the Complaints Committee didn’t follow the step-by-step procedure laid down under the Service Rules and ended up being grossly unfair to the appellant. The Apex Court further interjected that such disputes concerning sexual harassment are extremely sensitive in nature, whereby, on one hand the self-esteem of the victim is in jeopardy and, on the other hand the reputation of the accused is at stake. Therefore, a half-baked report of the Complaints Committee prepared in haste compromised a fair opportunity to either party due to which the entire process failed to be fair, transparent, and impartial. Hence, unessential acceleration of the inquiry process by the Complaints Committee resulted in glaring defects and procedural lapses leading to the disintegration of principles of equity and justice.

Conclusion

The extant matter appearing before the Apex Court had rendered the opportunity to the division bench to opinionate and lay the foundation to vehemently reiterate the statement, object and intent of the POSH Act and rules made thereunder. The bench stressed upon the degree of care to be exercised by the employers while dealing with the complaints related to sexual harassment of women at workplace. Moreover, considering the degree of sensitivity in such matters, the Apex Court stated that the POSH Act had been enacted by the legislature to ensure that justice is rendered to aggrieved woman/victim. Furthermore, the Apex Court emphasized on the framework related to mandatory constitution of ICC/LCC, mechanism of filing of complaint, formal process of conducting an inquiry has been clearly set out in the provisions of the POSH Act and rules framed thereunder. Vide this judgment the Apex Court issued rigorous directions to all government, public and private sector employers to strictly comply with such mandates. All employers shall provide requisite information regarding the constitution of the ICC/LCC; contact details of the members of the ICC/LCC; disseminate proper procedures and internal policies with respect to filing of complaint and redressal mechanism to be adopted by ICC/LCC while dealing with complaints related to sexual harassment. Since, such despicable acts torment the mental and physical health of the victim, therefore, employers must endevaour to conduct proper trainings, orientation programs and workshops from time to time, to spread awareness amongst employees and workers and upskill the members of the ICC/LCC to ensure promotion of gender sensitive spaces and to remove underlying factors that contribute towards a hostile work environment.

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