POSH Act Applicable To Girl Students Of A School: Calcutta High Court

The Calcutta High Court on Monday observed that the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act) is applicable to girl students of a school.

A Bench comprising Justice HarishTandon and Justice Rabindranath Samanta placed reliance on the definition of 'aggrieved woman' as provided under Section 2 (a) of the 2013 Act and accordingly ruled,

"As per Section 2 (a) an aggrieved woman means in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent. That being so, the provisions of the Act squarely apply to the students of the school."

Background

In the instant case, the Court was adjudicating upon an appeal against an order dated October 5, 2021, issued by the Central Administrative Tribunal, Kolkata Bench wherein the Tribunal had permitted the respondent authorities to proceed with the summary trial pertaining to the allegations of sexual harassment against the petitioner.

The petitioner, a teacher by profession, had been appointed by the Navodaya Vidyalaya Samiti on November 17, 1997, as a Trained Graduate Teacher (TGT), Nepali. On February 15, 2020, the principal of Jawahar Navodaya Vidyalaya, Ravangla, South Sikkim had filed a written complaint with the Officer-in-Charge of Ravangla Police Station stating that he had received several complaints from students of the school alleging that the petitioner had committed sexual harassment. In the complaint lodged with the police station, it had been further averred that around 67 students had complained of sexual harassment against the petitioner.

On the basis of the complaint, the Ravangla Police Station registered a case under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) against the petitioner. The petitioner was arrested by the Investigating Officer on February 15, 2020, but subsequently, he was released on bail by the concerned Court.

Thereafter, the petitioner had been informed by the school authorities that he had been placed under suspension vide order dated February 15, 2020, and subsequently the order of suspension was extended up to February 10, 2021.

Furthermore, by order dated June 16, 2020, the petitioner was further informed that the school authorities had constituted a committee for conducting a summary trial for inquiring into the allegations levelled against him dispensing with the regular disciplinary proceedings in terms of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

Arguments

It was contended by the petitioner that since the complaint levelled against him is of the nature of sexual harassment at the workplace, the respondent school authorities should have constituted an Internal Complaints Committee (ICC) and that such a committee should have deemed to be the inquiring authority appointed by the disciplinary authority. It was further argued that the order of summary trial has no legal force in view of the advent of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

On the other hand, the respondent school authorities contended that the POSH Act will not apply to school students. They further submitted that the notification dated December 20, 1992 issued by the Navadaya Vidyalaya Samiti prescribing the constitution of committee for summary trial to enquire into allegations of sexual harassment against any teacher of the school carries legal force as the notification has been upheld by the Supreme Court in the case of Avinash Nagra v. Navadaya Vidyalaya Samiti.

Observations

The Court rejected the contention of the school that the 2013 Act will not be applicable to the aggrieved female students of the school. Placing reliance on Section 2 (a) of the 2013 Act which prescribes the definition of an 'aggrieved woman', the Court opined that the provisions of the Act will be applicable to the students of the school.

It was further noted by the Court that the Central Civil Services (Classification, Control and Appeal) Rules, 1965 will be applicable to the teachers of Jawahar Nabadaya Vidayalaya, Ravangla, South Sikkim since it is wholly financially aided by the Central Government.

Furthermore, the Bench recorded that the order of suspension made on February 16, 2020 had been extended from time to time till February 10, 2021. It was observed that such an order of suspension exceeding 90 days is liable to be quashed pursuant to the Supreme Court judgment in Ajay Kumar Choudhary v. Union of India.

"Such acts on the part of the concerned respondent authority reek of malafides. Under such factual matrix, the order of suspension which is illegal ab initio and its extension did not conform to the legal principles enunciated by the Hon'ble Apex Court in the decision of the Ajay Kumar Choudhary supra is liable to be quashed", the Court remarked.

It was further held by the Court that the committee formed by the respondent school authorities to conduct a summary trial cannot be termed as an internal complaints committee (ICC) as per the provisions of the 2013 Act. The Court noted that the composition of the committee constituted by the school does not conform with the requirements of Section 4 of the 2013 Act. The Committee constituted by the School did not have an external independent member as stipulated by the POSH Act.

"It is axiomatic that the committee so formed by the respondent school authorities cannot be termed as an internal complaints committee as envisaged under the provisions of Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Though the committee was constituted in terms of the notification dated 20.12.1993 issued by Navadaya Vidyalaya Samiti, but, the committee dehors of the fundamental legal requirements under Section 4 of the Act, has now lost its statutory force", the Court underscored.

It was further noted by the Court that after the Sexual Harrasment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013 came into force the relevant service rules viz Central Civil Services (Conduct) Rules, 1964 and the Central Civil Services (Classification, Control and Appeal) Rules, 1965 were suitably amended.

Reliance was also placed on the amended Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which stipulates that where there is a complaint of sexual harassment the complaints committee established in each ministry or department or office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of this rule.

Accordingly, the Court observed,

"In view of the legal position as above, the committee constituted for summary trial without adhering to the mandatory requirements of the law and the rules as quoted above loses its legal force. Therefore, viewed from all aspects, the impugned order passed by the Learned Tribunal holding the legality of the committee for summary trial is not sustainable in law."

The Court quashed the suspension order and the enquiry proceedings. The school authorities were directed to allow the petitioner to join his duties within one month and to pay all the back wages to him within 2 months of joining duty.

Advocate Suman Banerjee appeared for the petitioner. Advocates Tapan Bhanja and Pulkesh Bajpayee appeared for the respondents. 

Case Title: Pawan Kumar Niroula v. Union of India 

Case Citation: 2022 LiveLaw (Cal) 15. 

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