India: High Court Of Delhi Clarifies The Applicability Of The POSH Act On Delinquent Employees From Other Departments/Organizations

1. INTRODUCTION

On June 30, 2023, a division bench of the High Court of Delhi ("Court") passed a judgment in Dr. Sohail Malik vs. Union of India and Anr.,¹ and held that the scope of the Sexual Harassment (Prevention, Prohibition and Redressal) Act, 2013 ("POSH Act") is not limited only to cases where a woman employee is sexually harassed by another employee working in the same workplace and that the POSH Act can be extended even when the delinquent employee is employed elsewhere.

2. BACKGROUND

A complaint ("Complaint") of sexual harassment had been presented by an officer of the Department of Food and Public Distribution, Ministry of Consumer and Public Distribution ("MCPD") against an officer ("Petitioner") of the Indian Revenue Service before the Internal Complaints Committee ("ICC") of her workplace/department being the MCPD. On receiving a notice from the ICC, the Petitioner moved the Central Administrative Tribunal ("CAT") challenging the jurisdiction of the ICC of the MCPD to examine the complaint. The CAT, through an order dated June 23, 2023 upheld the jurisdiction of the ICC. Against the order passed by CAT, the Petitioner filed a writ petition before the Hon'ble High Court of Delhi.

3. DECISION AND ANALYSIS OF THE COURT

3.1. Notable arguments of the Petitioner

It was argued by the Petitioner that inquiries before an ICC of the complainant's workplace could not be sustained if a delinquent employee worked in a different workplace, as the said delinquent employee would not be within its disciplinary control. It was also submitted that findings and recommendations of ICCs are required to be forwarded to the "employer" for further action, and that a report of an ICC would be unenforceable when sent ahead to the employer of the complainant. As such, the only remedy available to a complainant would be to file a criminal complaint.

3.2 Factors considered by the Court

The Court relied on the rule of purposive construction to interpret the POSH Act and observed that the POSH Act is in the nature of an "ameliorative social welfare legislation". This meant that the POSH Act could not be interpreted in a manner that frustrated its objects or which would result in a manifestly arbitrary or unjust result. The Court observed that amongst other things, the objectives of the POSH Act, are to ensure that women's rights to equality, life and liberty are not violated or compromised, women are not subjected to gender-specific violence, and that every woman is provided a safe working environment and insulated from any act of sexual harassment of any form. It was observed that all objectives of the POSH Act are "harasser-neutral" in nature, and that even an apprehension of a woman that her safety at the workplace would be compromised belies the spirit of the Constitution.

3.3 Analysis of facts and law

The Court held that the POSH Act does not shelter men from action if they sexually harass women in offices other than those in which they are themselves working. It was found that Section 11(1) of the POSH Act is not restricted to cases where a person against whom sexual harassment is being alleged, is also an employee of the same workplace as the complainant. It merely states that the delinquent employee before an ICC should be an "employee" and the Petitioner in the present case was in fact an employee, even if, in another department of the Government of India.

It was further held that the definition of "employer" under Section 2(g) of the POSH Act is not defined in relation to "an employee who complains of sexual harassment". The definition thus has to be read to include the employer of the workplace where the alleged perpetrator of sexual harassment is working. It was concluded that there was no prohibition on forwarding the recommendations of the ICC of a complainant's workplace, to a different employer who exercises disciplinary control over an employee alleged to have sexually harassed the complainant and such employer would be able to take action based on the report of the ICC.

Lastly, it was also observed that Section 19(h) of the POSH Act, which canvases the duties of an employer, allows a complainant to initiate action in the workplace even in cases where the alleged delinquent employee is not an "employee" of the workplace which the complainant is a part of.

4. QUICK VIEW

The Court's purposive interpretation of the POSH Act brings about a welcome change to how complaints of sexual harassment can be adjudicated, thereby further strengthening a complainant's rights by enabling the ICC of the complainant's workplace to conduct an inquiry, even if an alleged delinquent employee does not work at the same workplace. It also ensures that a complainant has the comfort to approach their own employer for redressal of such sensitive issues.

Furthermore, the judgment does not take into account the challenges that the ICC of an employer, which does not exert disciplinary control over an alleged delinquent employee, may face. Firstly, it may be difficult for the said ICC to summon an alleged delinquent employee for its proceedings, and it would require considerable efforts to coordinate with their employer for compelling their participation. Secondly, certain measures as prescribed under the POSH Act, such as interim measures that may be passed against the delinquent employee during proceedings, may become infructuous, as the employer of another workplace, upon receiving such recommendations of a separate ICC may not enforce such measures. Further, given that the complainant is not precluded from raising a complaint to the ICC of the delinquent employee's employer, there is a risk that parallel proceedings of different ICCs may be instituted, giving rise to issues such as determining which ICC recommendations must be followed by the employer of the delinquent employee.

Hence, the judgment does not delve into the interplay between two workplaces/departments/ICCs in such scenarios and therefore the outcome of such clashes has been left to their sole discretion.

It is thus, the need of the hour, for the legislature or the judiciary to clarify these aspects of the POSH Act and provide a harmonious interpretation of the provisions of the POSH Act, to avoid challenges in its implementation.

Footnote

1. W.P. (C) 8624/2023, High Court of Delhi.

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