Calcutta High Court Grants Interim Relief To School Secretary Booked Under PoSH Act For Calling Colleague 'Faltu'

The Calcutta High Court has granted interim relief to the Secretary of St. Stephens School, Dumdum, (“petitioner”) in a case involving his termination on the basis of a complaint made by a female colleague under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH Act”), alleging that he referred to her as “faltu meye.”

In directing the petitioner’s reinstatement to the post of Secretary pending reconsideration of his case, a single bench of Justice Sabyasachi Bhattacharya observed that the Local Complaints Committee (“LCC”) which had adjudicated over the issue, had violated the principles of natural justice, and had failed to enquire into the context of the alleged remark.

The Bench held,

The expression “faltu meye” can be used in various contexts. The backdrop of the usage would lend colour and texture to the comment…the interpretation applicable in the present case would entirely depend on the backdrop. I find nothing in the impugned order to indicate that the appropriate context and backdrop in which the said expression was used by the petitioner, if at all, was discussed by the LCC…it cannot be said that the tenets of Natural Justice have been duly complied with by the LCC. There are ingredients of perversity and lack of opportunity of informed hearing to the parties, particularly the petitioner, in the decision of the LCC, which vitiates the impugned decision on the ground of violation of principles of Natural Justice.

It was argued by the petitioner that the LCC acted without jurisdiction, since it was usurping jurisdiction of the Internal Complaints Committee, which had been constituted, and had hierarchical supremacy over the LCC, only on the basis of an assumption that it was not “properly constituted.”

The petitioners argued that under Section 6(1) of the PoSH Act, the LCC could only receive complaints of sexual harassment from establishments where the ICC had not been constituted due to having less than 10 workers, or if the complaint was against the employer himself.

Petitioners submitted that the employer/head of the institution would be the Bishop, with various rungs working under him, and that the petitioner could not be said to be the employer, in an attempt to invoke the jurisdiction of the LCC.

Petitioners argued that charges, even if proved, could only lead to termination on the basis of Rules framed by the “appropriate government” under Section 29 of the Posh Act, and interpreted the same in the present context to mean state government.

It was argued that the rules in such regard, which were relied on by the LCC had been framed by the Central government, and thus removal would not apply to the petitioner’s case.

On merits, it was argued that the term “faltu meye” had been construed by the committee to mean “cheap woman” as a lewd remark, whereas in the Bengali dictionary, it had been defined as “spare, excessive, extra, much, unnecessary, useless, etc.” leaving no lewd context to it.

Petitioner argued that he was not given access to the documents relied on by the LCC, and that such an act which culminated in him losing his job, gravely violated his principles of natural justice.

Respondents on the other hand argued that irrespective of the ICC, the complaint was indeed against the “employer” since such term under the PoSH Act meant any workplace any person responsible for the management, supervision and control of the workplace. The explanation provides that it includes the person responsible for formulation and administration of policies for the organization.

It was argued that Secretary was an employer for all practical purposes and that he was in charge of much of the administrative work going on in the school, such as transfers of the employees, etc.

Respondents argued that there were long antecedents to the alleged remarks, and that all the previous remarks had been made in a lewd context as well.

School authorities submitted that the victim had first approached the ICC, but thereafter challenged its jurisdiction and approached the LCC, and that such conduct must be deprecated since she had already submitted to the jurisdiction of the ICC.

It was submitted that the school authorities had been given no opportunity of hearing, and that the observation that the school did not have a properly functioning ICC as mandated under the PoSH act were bad in law.

Court considered the rival considerations and upheld the jurisdiction of the LCC in the present context. It observed that Secretary of the Managing Committee in a school could definitely be considered an employer, since it would include anyone designated to formulate and implement administrative responsibilities.

There are several documents galore, annexed to the writ petition, to show the supervision and control exercised by the petitioner as the Secretary of the Managing Committee in the workplace, that is, the school, it held.

Finally, in holding that the LCC had failed to investigate into the context of the remarks made by the petitioner by allowing him fair hearing, or to consider the previous incidents being alleged by the victim, the Court concluded that grave errors had been committed in the probe, and directed a reconsideration of the same by the LCC.

In partially allowing the writ petition, the Court passed further directions on the school to reinstate the petitioner to his position, pending the outcome of the LCC deciding the issue afresh by giving both parties ample opportunity for hearing.

Petitioner was directed to not attempt to influence the probe in any way, and not have any interaction with the petitioner, or be a part of any major decisions regarding her, till his case had been disposed of by the LCC within two months from date.

Citation: 2023 LiveLaw (Cal) 269

Case: Sukalyan Haldar Vs. State Of West Bengal And Others

Case No: WPA 18829 of 2023

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