Before Starting Enquiry, ICC Can Try To Settle POSH Act Case: Madhya Pradesh HC Allows NIT Asst Prof's Plea Against Dismissal From Service

While allowing an NIT Bhopal Assistant Professor's plea against dismissal from service who was accused of sexual harassment, the Jabalpur bench of the Madhya Pradesh High Court said that the Internal Complaints Committee can, before starting the departmental enquiry, try to "settle" the case by referring the matter to conciliation. In doing so, the court mentioned the importance of complying with Section 10 of the The Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act (POSH) which prescribes that the Internal Committee or a Local Committee before initiating any enquiry in the matter may try to settle the dispute by referring the matter for conciliation and thereafter enquiry shall be conducted as per Section 11 of the Act. Section 11 says that the Committee is under obligation to make an attempt to settle the matter by way of conciliation and if it fails then only then matter has to be enquired into as per Service Rules. The court found that both these provisions had been violated.With respect to non compliance of Section 10 and 11 of POSH Act in the matter, Justice Sanjay Dwivedi in its order said, "Section 10 of the Act, 2013 provides as to in what manner complaint made by the aggrieved woman has to be dealt with. Section 10 prescribes that the Internal Committee or a Local Committee before initiating any enquiry in the matter may try to settle the dispute by referring the matter for conciliation and thereafter enquiry shall be conducted as per Section 11 of the Act, 2013The language used in the aforesaid provision makes it clear that the Committee is under obligation to make an attempt to settle the matter by way of conciliation and if it fails then only the matter has to be enquired into as per Service Rules. There is a complete violation of the provision of Sections 10 and 11 of the Act, 2013". Meanwhile terming the department enquiry carried out in the matter as an "eyewash", the court found that nothing was produced to ascertain whether the statement of complainants was recorded during the course of enquiry or not, nor was an opportunity to cross-examine them was given, rendering the procedure adopted by the respondents contrary to law. It said:“It is clear that no procedure was followed by the respondents as provided under Rule 14 of Rules of 1965…the enquiry is nothing but an eye wash because the same was conducted without following any procedure which had to be mandatorily followed. The witnesses did not physically appear before the Enquiry Officer and no opportunity to cross-examine those witnesses is given to the delinquent, despite that, their statements taken otherwise, such an enquiry is no enquiry in the eyes of law and it is in clear violation of principles of natural justice…from the very inception respondents have not followed any valid procedure for conducting the enquiry or the requirement of provisions of the Act of 2013.”BackgroundThe petitioner was working as Assistant Professor in the Department of Materials and Metallurgical Engineering of Maulana Azad National Institute of Technology Bhopal. As per the petitioner, the Respondent No.3, who is the senior most faculty in the Institution had some personal issues with the petitioner and had conspired against the petitioner to get false complaints filed against him. The petitioner was dismissed from service by way of punishment passed in a departmental enquiry. He then moved a writ petition challenging the termination order on the ground of procedural lapses in conducting enquiry and violation of principles of natural justice. Petitioner's ArgumentsThe counsel for petitioner asserted that instead of referring the matter to the Internal Complaint Committee (ICC), it was referred to respondent No.4 who was Respondent No. 3's female friend who was not an ICC member. It was contended that this in turn disclosed to her about the petitioner's conduct is a violation Section 16 POSH Act. Moreover, respondent No.4 along with some female students met Respondent No. 5, the then ICC Chairman to convince her about the complaints made against the petitioner which was clearly against the provisions of the POSH Act as per which the complaint should be made at least before minimum three Members Committee. It is also alleged that constitution of ICC was not as per the requirement of the POSH Act or as per the “University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015; but despite that, disciplinary action was proposed against the petitioner.In violation of the provisions of the Act and Rules of 2013, the respondents No.3 to 5 made complaints to the Committee of the Institution and requested an enquiry about the conduct of the petitioner relating to sexual harassment of female students. Thereafter, a notice was issued to the petitioner by the respondent No.5 asking him to attend the meeting of ICC on ...

Before Starting Enquiry, ICC Can Try To Settle POSH Act Case: Madhya Pradesh HC Allows NIT Asst Prof's Plea Against Dismissal From Service

Anukriti Mishra

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