Employer Cannot Constitute Its Own Appellate Authority Under POSH Act: Bombay High Court
The Bombay High Court has held that Section 18 of the POSH Act read with Rule 11 of the POSH Rules does not confer any authority or jurisdiction on an employer to create or constitute an Appellate Authority. The Court further cautioned that public institutions must be cautious in interpreting, as a misconceived interpretation can lead to a chaotic situation. A Division Bench comprising Justice...
The Bombay High Court has held that Section 18 of the POSH Act read with Rule 11 of the POSH Rules does not confer any authority or jurisdiction on an employer to create or constitute an Appellate Authority. The Court further cautioned that public institutions must be cautious in interpreting, as a misconceived interpretation can lead to a chaotic situation.
A Division Bench comprising Justice G. S. Kulkarni and Justice Dr. Neela Gokhale was hearing a petition filed by Ashok Upadhyay, challenging the penalty imposed upon him by Union Bank of India following proceedings under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The Petitioner had initially been exonerated by the Internal Complaints Committee, against which the complainant preferred an appeal before the Appellate Authority. The Petitioner alleged that the Authority directed reinvestigation without either giving notice to the Petitioner or providing a hearing to him. The second Committee held the Petitioner guilty. Hence, the penalty under challenge was imposed on the Petitioner.
The Court noted that Section 18 provides for an appeal to the “court or tribunal” in accordance with the applicable service rules and, where no such service rules exist, in such manner as may be prescribed. The Court observed that Rule 11 provides that an aggrieved person may prefer an appeal to the Appellate Authority notified under clause (a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946.
On a cumulative reading of Section 18 and Rule 11, the Court observed:
“A cumulative reading of Section 18 read with Rule 11 do not bring about any authority or jurisdiction with the employer to create or constitute an Appellate Authority. If these provisions are so read, it would amount to defeating the provision(s) as also reading something in the provision which the legislature has avoided to incorporate.”
The Court further observed that the Bank could not point out any authority/jurisdiction in law which would empower the employer to appoint an Appellate Authority of its choice. Hence, the Court held that the Internal Appellate Authority constituted by Respondent No.1 was without jurisdiction, and cannot be labelled an Appellate Authority constituted as per the provisions of Section 18 and/or Rule 11.
“… the entire exercise undertaken by the Respondents leading to the passing of the impugned order, imposing penalty in question, is on the edifice of such patent illegality… the same has caused severe prejudice to the Petitioner… the order passed by the Appellate Authority, in our opinion, was non-est, and that too passed by an inherently illegal Appellate Authority,” the Court remarked.
The Court also expressed its displeasure at the approach of the Bank in dealing with the issue, noting that the same has caused prejudice not only to the petitioner but also to the complainant.
“The Bank and other such public institutions must be cautious and careful while interpreting legal provisions, lest the altogether misconceived interpretation made by the Respondent No. 1/Bank, leading to a chaotic situation,” the Court remarked.
The Court accordingly quashed the impugned orders and allowed the petition.
Case Title: Ashok Upadhyay v. Union Bank of India [Writ Petition No. 2385 of 2024]