A decade after its enactment, SC issues directions to ensure better implementation of the PoSH Act

Highlighting that sexual harassment not only dents the self-esteem of a woman, but also takes a toll on her emotional, mental and physical health, the court laments the glaring lacunae in the constitution of internal complaints committees (ICCs) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (PoSH Act), 2013, and lays down extensive guidelines for better institutional compliance.

—

ON Friday, a division Bench of the Supreme Court, comprising Justices Hima Kohli and A.S. Bopanna, issued a set of guidelines to ensure the urgent and efficient enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act), in the interest of working women across the country.

Also read: POSH Act: Cases suggest need for safeguards even while keeping Evidence Act inapplicable

The Bench was hearing an appeal challenging the decision of the Bombay High Court in Aureliano Fernandes versus State of Goa and Others, dated March 15, 2012, which had upheld the order of the 'executive council' of the Goa University (disciplinary authority) to terminate the appellant, who headed the political science department of the university, from service.

The appellant had been terminated from service on the charge of sexual harassment, by the 'executive council' (EC) of Goa University, a principal executive body constituted under Section 18 of The Goa University Act, 1984 as a 'disciplinary authority' provided under Rule 12 (authorised to impose penalties on any government servant) of  Central Civil Services (Classification, Control and Appeal) Rules, 1965.

The executive council had accepted the report of the 'standing committee for prevention of sexual harassment at work place' that imposed upon the appellant a penalty of dismissal from services and disqualification from future employment under Rule 11(IX) (dismissal from service which shall ordinarily be a disqualification for future employment under the government) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which was upheld by the governor and chancellor of Goa University.

The inquiry initiated by the committee was in respect of 17 complaints received by the registrar of the university, alleging sexual harassment by the appellant.

Facts of the case

The appellant, Aureliano Fernandes, started working at Goa University as a temporary lecturer in the department of political science in 1996. He was appointed as the head of the department in 2003. In March 2009, an inquiry was initiated by the standing committee on receiving nine complaints by girl students, alleging physical harassment by the appellant. Consequently, he was served a notice to appear for a personal hearing on April 27, 2009. In his reply, the appellant stated that the charges levelled against him were false and baseless. 

During the hearing of April 27 and April 28, 2009, the appellant alleged that he was made to wait outside the committee room. On May 6, 2009, the request of the appellant to engage a lawyer was declined by the committee. The committee rejected two requests of the appellant for further extension of time on health grounds. 

Thereafter, the committee proceeded ex-parte and submitted its report, dated June 5, 2009, to the registrar of Goa University. On June 13, 2009, the executive council accepted the report and proceeded to conduct an inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. 

However, in view of the Order in Medha Kotwal Lele and others versus Union and Indian and Others, dated April 26, 2004, which held that the report of the 'complaints committee for prevention of sexual harassment at the workplace' will be considered as an 'inquiry report' under the Central Civil Services Rules, the inquiry proceedings by the executive council stood terminated. Subsequently, the executive council accepted the report of the committee and through an order dated May 10, 2010, imposed the penalty of dismissing the appellant from service under Rule 11(IX) of the Rules.

Thereafter, on challenging the order of the EC before the Bombay High Court, the court observed that the committee had granted the appellant ample opportunities to cross-examine the complainants and the witnesses and that the committee was correct in proceeding ex-parte. Observing that there was no breach of the principles of natural justice, the high court upheld the order of the committee, 

Also read: Protecting the queer community from sexual harassment

Observations of the court

On the glaring defects and procedural lapses in the inquiry proceedings that took place in May 2009, the judgment, authored by Justice Hima Kohli, observes that 12 hearings were conducted by the committee "at a lightning speed". 

The judgment details that the committee forwarded depositions of complainants and witnesses to the appellant, and called upon him to furnish a reply, to cross-examine the complainants and the witness and record his deposition within a period of a week.

The judgment avers that the committee erred in denying the appellant a reasonable time to prepare his defence, particularly in light of denying his request for being represented through a lawyer. The committee damaged the fairness of the process by "short-circuiting" the inquiry proceedings, the judgment reads. 

Acknowledging that although the committee was dealing with complaints from students levelling serious allegations of sexual harassment against the appellant, the judgement notes that a comprise of the procedural fairness of the inquiry cannot be justified. 

The judgment holds that the proceedings conducted by the committee do not meet the "as far as practicable" norm provided under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. 

The use of the expression "as far as possible" allows the complaints committee to adopt a fair procedure that is feasible and elastic for conducting an inquiry in a flexible manner in a sensitive matter like sexual harassment at workplace, without compromising on the principles of natural justice, the judgment expounds.

The judgment also observes that the improperly conducted inquiry defied principles of natural justice that are manifested in Article 311 (Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a state) of the Constitution. The Article provides that no person employed in civil capacities "shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges."

The Bench, thereby, has set aside the judgment of the Bombay High Court that upheld the order of the executive council of the Goa University (disciplinary authority) of terminating the services of the appellant.

Also read: Mechanism to probe sexual harassment allegations against judges: Supreme Court to hear eight-year old petition seeking transparency

Further, the Bench has issued directions to remand the matter back to the 'standing committee for prevention of sexual harassment at work place' to take up the inquiry proceeding as they stood on May 5, 2009. The remand has been directed to ensure that the procedure to be followed by the committee and the disciplinary authority is guided by the principles of natural justice and that the appellant is given adequate opportunity to defend himself.

Moreover, the respondents have been directed to complete the entire process within three months from the first date of the hearing fixed by the committee. The Bench has held that the appellant will not be entitled to claim immediate reinstatement or back wages till the inquiry is completed and a decision is taken by the disciplinary authority. 

Directions for enforcement of the PoSH Act

A decade after the enactment of the PoSH Act, the court has reflected upon the enforcement of its mandate. The judgment highlights that the successful implementation of the Act depends on the constitution of 'internal complaints committees' (ICCs) by every employer at the workplace and the constitution of 'local committees' and the 'internal committees' by the 'appropriate' government. The constitution of such committees ensures that there are proper institutions in place to conduct inquiries into complaints of sexual harassment at the workplace, the judgment notes.

Noting serious lapses in the enforcement of the PoSH Act, the judgement laments the glaring lacunae in the constitution of ICCs. It particularly focuses on a survey published by a daily newspaper that reported that out of the 30 national sports federations in the country, 16 have not constituted an ICC till date.

The judgment also points out that where the ICCs are constituted, they either lack the required number of members needed to constitute an ICC or they lack a mandatory external member.

The judgment emphasises the need for urgent, robust and efficient implementation of the PoSH Act through strict adherence to the enforcement regime and a proactive approach by all the State and non-State actors. 

According to the judgment, such implementation is vital in providing the dignity and respect that women deserve in the workplace. "Being a victim of such a deplorable act [sexual harassment] not only dents the self-esteem of a woman, it also takes a toll on her emotional, mental and physical health," it adds. 

In its judgment, the Bench notes that one reason for the reluctance of women to report sexual harassment faced by them at the workplace is uncertainty about whom to approach, and the lack of confidence in the process and its outcome.

Also read: Supreme Court issues guidelines to be followed in sexual harassment and assault cases

In order to ensure the enforcement of the PoSH Act in the interest of working women across the country, the Bench has issued the following directions in the judgment: 

1. In a time-bound manner, the Union of India, all state governments and Union territories are directed to verify whether all the concerned ministries, departments, government organisations, authorities, public sector undertakings, institutions, bodies, etc. have constituted committees in accordance with the PoSH Act
2. It is directed to ensure that updated and necessary information regarding the constitution and composition of the committees, details of the email IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, relevant rules, regulations and internal policies are made readily available on the website of the concerned authority.
3. All statutory bodies of professionals at the "apex level" and the state level, including the bodies that regulate doctors, lawyers, architects, chartered accountants and other professionals, as well as universities, colleges, training centres and educational institutions, and government and private hospitals and nursing homes, are directed to conduct a similar exercise. 
4. The authorities, management and employers are directed to take immediate steps in familiarising the members of the committee with the manner of conduct of an inquiry.
5. The authorities, management and employers are directed to conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of the committees and to educate women about the provisions of the law.
6. The National Legal Services Authority and the state legal services authorities are directed to develop modules to conduct workshops and organise awareness programmes to sensitise authorities, managements, employers, employees and adolescent groups with the provisions of the PoSH Act.
7. The National Judicial Academy and the state judicial academies are directed to include in their annual calendars, orientation programmes, seminars and workshops for capacity building of members of the committees established in the high courts and district courts and for drafting standard operating procedures to conduct an inquiry. 
8. The secretaries of all the ministries of the Union government and the chief secretaries of every state and Union territory are directed to ensure the implementation of these directions.

The Bench further directed the Union government, as well as all states and Union territories, to report on compliance with these directions within a period of eight weeks.