POSH Act | Once Allegation Not Proved, No Action Can Follow: Bombay High Court Quashes Reprimand For Videographing Colleagues

The Bombay High Court last week, came to the rescue of an employee of National Bank for Agriculture and Rural Development (NABARD), who challenged the penalty of 'Reprimand' imposed on him by the Central Complaints Committee (CCC) for 'video recording' his female colleagues who often 'disturbed' the working hours by 'sitting together, giggling, gossiping and singing.'

A division bench of Justice Bharati Dangre and Justice Manjusha Deshpande noted that the CCC by its order passed on June 30, 2020 held that the conduct of the petitioner - Dr Mohinder Kumar did not amount to 'sexual harassment' as prescribed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH), however, it recommended action against him.

On this very recommendation, the competent authority, Chief General Manager of NABARD imposed a penalty of 'Reprimand' on Kumar as the CCC in its report stated that his 'conduct of shooting video though did not amount to sexual harassment but was also not justified.'

Notably, in view of the recommendations, the Chief General Manager of NABARD had imposed a major penalty (under Reprimand) of 'compulsory retirement' on Kumar and he was subsequently retired by the bank.

Challenging the findings of the CCC and the penalty by the competent authority, Kumar relied on section 13(2) of the POSH Act, which provides that when the Internal Complaints Committee (ICC) arrives at a conclusion that the allegations against a person are not proved, then it has to recommend to the employer that no action is required in the said matter. 

Considering the facts of the case, the judges in their January 12 order, said, "Upon going through the order of penalty imposed by the Competent Authority dated September 24, 2020, it is evident that the disciplinary authority has imposed the penalty of 'Reprimand' solely on the basis of the recommendation made by the CCC. The CCC is a Committee specially constituted to address the grievances of sexual harassment, hence once the Committee has formed an opinion that the conduct of the Petitioner did not constitute 'sexual harassment', it could not have recommended any action against the Petitioner. It should have simply closed the matter and dismissed the complaint."

The bench said that the CCC in the instant case, has acted beyond its powers.

"The CCC has exceeded its jurisdiction by making recommendation to the Competent Authority to take suitable action against the Petitioner. Similarly, acting on the recommendation of the CCC, the Competent Authority has committed an error by imposing penalty of 'Reprimand' without application of his mind or making any independent inquiry, thus the order passed by the Chief General Manager and Competent Authority dated September 24, 2020 deserves to be quashed and set aside," the judges held. 

With these observations, the bench quashed and set aside the penalty imposed on Kumar. 

Appearance:

Advocate Vishal Shirke appeared for the Petitioner.

Advocate SP Bharti represented the Authorities. 

Case Title: Dr Mohinder Kumar vs The Chairman, NABARD (Writ Petition 1635 of 2021)

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