POSH Act | Internal Complaint Committee's Report & Recommendations Are Mandatory In Nature: Allahabad High Court
The Allahabad High Court has held that report of the Internal Complaints Committee (ICC) under Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is mandatory in nature. It held that once the ICC holds the delinquent guilty of sexual harassment, the employer/ district officer must treat sexual harassment as misconduct and...
The Allahabad High Court has held that report of the Internal Complaints Committee (ICC) under Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is mandatory in nature.
It held that once the ICC holds the delinquent guilty of sexual harassment, the employer/ district officer must treat sexual harassment as misconduct and initiate disciplinary proceedings under applicable service regulations.
Perusing the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Justice Manish Mathur held,
“In terms of surrounding circumstances, as well as looking into the intention of legislature and to give a meaningful object to the Act of 2013 so that it ensures a smooth and harmonious working and is also reasonable, it can thus be deduced from the aforesaid provision that the recommendations made by the complaints committee under Section 13 or 14 of the Act of 2013 are mandatory in nature and not merely recommendatory or directory.”
Petitioners were appointed as members of the ICC under the POSH Act in a complaint against the delinquent employee. After the inquiry was conducted, the delinquent was exonerated. Thereafter, the delinquent as well as the members of the ICC were all placed under suspension.
Challenging the order of their suspension, petitioners pleaded that departmental inquiry should not be initiated merely based on the report of the ICC, else the committee would be forced to give tailor-made reports, as per the requirements of the employer.
Counsel for State pleaded that the complainant was promoted as a Sales Tax Officer and had been contacted by the delinquent even before she had joined. It was submitted that the complaint was lodged after several episodes and that the committee ignored the statement of Joint Commissioner (Executive) who supported the complainant's testimony. It was submitted that based on hostile conduct of the members of committee, they were suspended.
It was argued that the recommendations of the committee were mandatory in nature under the Act and it is the prerogative of the employer to ensure that no act of sexual harassment in workplace goes unpunished.
Perusing Sections 11 and 13 of the Act which provide the procedure for inquiry and inquiry report, the Court observed that once the inquiry report is against the delinquent, the employer or the district Officer must treat sexual harassment as misconduct. It also held that the employer can only take disciplinary action under the service rules against the delinquent by treating sexual harassment as misconduct.
It held that under Rule 7 of the U.P. Government Servants (Discipline and Appeal) Rules 1999, which is applicable in the present case, no further inquiry is contemplated. It also noted that no appeal is provided against the order of employer or district officer but appeal is provided against the inquiry report.
The Court held that “the report submitted by complaints committee although indicated as recommendation, nonetheless is held to be mandatory in nature.”
Regarding the suspension of the member of the Committee, the Court observed that it is a quasi-judicial authority and prima facie satisfaction must be recorded by the disciplinary authority with regard to their misconduct in carrying out their duties.
“Such a prima facie satisfaction is imperative for the free, fair and impartial decision by the quasi-judicial authority particularly to ensure that such a quasi-judicial authority does not have the Sword of Damocles hanging over them to be proceeded against departmentally.”
Noting that it is important that the quasi-judicial authority act without fear, the Court observed,
“While this court lauds stand of State Government and there can be no gainsaying that aspect of sexual harassment in the workplace is required to be nipped in the bud by preventive and corrective steps being taken, at the same time it is also essential that the proceedings of the Internal Complaints or the Local Committee should be fair, transparent and without any aspect of fear or favour in the minds of the members of a committee.”
The Court observed that under Rule 4 of the U.P. Government Servants (Discipline and Appeal) Rules 1999, a government servant could only be placed under suspension if allegations against them if proved would warrant major penalty.
The Court held that there was no satisfaction recorded in the order suspending the petitioners and the order impugned was passed in a cursory manner, without application of mind. Accordingly, the suspension orders were quashed and the writ petition was allowed.
Case Title: Km. Sunita Devi v. State Of U.P. Thru. Addl. Chief Secy. Deptt. State Tax Lko. And 4 Others