POSH Act: The legal conundrum

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) was enacted with the objective to prevent sexual harassment of women in the workplace, with the liability fixed on the employer to achieve the same.

This special legislation has a three-pronged approach: prevention, prohibition and redressal. It is a self-contained code which lays down the duties of employers, one of which is to establish a statutory body called the Internal Committee (IC) in all workplaces where there are more than 10 employees. The IC has 4 members, consisting of a senior-most woman employee as the Presiding Officer, 2 employees and one external member, who will be a subject-matter expert; at least half of the committee should be women. The IC is vested with the power of a civil court under the POSH Act, while conducting enquiry. The POSH Act also mandates that an employer shall act on the recommendations of the IC and a literal interpretation would mean that the employer should implement the recommendations of the IC and no further.

Conflicting opinions

Section 11(1) of the POSH Act provides that the IC shall proceed to make enquiry in accordance with the provisions of the service rules if the respondent is the employee. While the courts were being called upon for interpretation of this provision, one could find that there are divergent views with regard to the applicability of service rules vis-à-vis the POSH Act.

It is seen that where there is applicability of Conduct, Discipline & Appeal Rules (“CDA Rules/Regulations”), organisations have to conduct a separate domestic enquiry as mandated under the CDA Rules/Regulations, if a major or minor punishment is imposed. Hence, the moot question is, if the IC imposes a recommendation of termination, which is a major punishment on finding of guilt, should the employer conduct another domestic enquiry as mandated under the CDA Rules/Regulations?

In the case of Dr Arabi U v. The Registrar Mangalore University & 2 others, the Karnataka High Court was considering whether the proposed penalty of dismissal from service in the second show cause notice could have been imposed without following the procedure stipulated for the imposition of such penalty. The second show cause notice was issued pursuant to the recommendation of IC upholding the petitioner as being guilty of committing sexual harassment. Relying on the decision of the Supreme Court in the case of Vijayakumaran CPV v. Central University of Kerala, the Karnataka High Court held that even for cases under the POSH Act, regular inquiry or a departmental action as per the service rules is indispensable, and thereby quashed the second show cause notice as the same was issued without an enquiry under the service rules. However, it is pertinent to note that the Supreme Court did not consider the question as to whether an enquiry is mandated under the University Rules after enquiry by the IC, but only decided on whether the termination order was ex-facie stigmatic and punitive.

However, the Kolkata High Court in the case of Pradip Mandal v. Metal Scrap Trade Corporation Ltd, after analysing the precedents and various provisions of the POSH Act, rendered a finding that the CDA Rules, 1980 does not provide for conducting two proceedings - one under the POSH Act and the other under the CDA Rules - and hence, the report by the IC shall be treated to be the inquiry report of the inquiring authority and there was no necessity to initiate a further inquiry by the disciplinary authority under the CDA Rules.

A similar view has been taken by the Madras High Court in the case of The Management of Christian Medical College and Hospital v. Mr SG Dhamodharan. It was reiterated that the management has no other choice but to take action in terms of the recommendation made by the IC against the employee.

Conclusion

This interpretation of the Kolkata High Court and the Madras High Court lays down the correct position of law. Sexual harassment at the workplace ought to be handled sensitively by the special statutory committee that has been constituted for the specific purpose. Once the IC has conducted the enquiry as per the mandate of the POSH Act, it will be imprudent to conduct the enquiry once again by the disciplinary authority. Further, the legislators did not provide for two enquiries - one under the POSH Act and other under the service rules. Neither the object of the Act nor its phraseology would indicate that the legislature wanted the complainant or the respondent to go through the rigours of enquiry twice, on such a sensitive issue. The enquiry conducted by the statutory IC stands on a higher pedestal than the enquiry conducted by an disciplinary authority for the following reasons:

1. Under the POSH Act, the enquiry will be conducted by a statutorily formed committee, while under the service rules, the enquiring authority is chosen by the employer;

2. Under the POSH Act, the enquiry will be conducted by 3 members while under the service rules, the enquiry is conducted normally by a single officer;

3. The IC is vested with the powers of a civil court under the POSH Act while officer conducting enquiry under the service rules does not have such powers;

4. An employer shall act upon the recommendation of the IC under the POSH Act while the disciplinary/appellate authority is not bound by the finding of the enquiring authority.

It is pertinent to note that the enquiry under the POSH Act will also satisfy the requirement of Article 311 of the Constitution of India, as the person would be provided adequate opportunity to put forth their case before the IC.

The role of an employer under the POSH Act is very minimal. They ought to have formed the IC, act upon the recommendation of the IC and to file an annual report and perform the duties prescribed under the POSH Act. The POSH Act is a self-contained legislation and the IC has been constituted to function in an independent fashion and not to involve the employers or the employees in the adjudication of a complaint, as there are high chances that the complaints are against persons who are managerial positions of a company.

It may not be out of context to state that generally, offences of the nature of sexual harassment are often being perpetrated by a person in a dominant position. The POSH Act is a social legislation which cannot be confined to the rigours of technicalities. It should have a purposive interpretation, and aggrieved women should be encouraged to come forward and take recourse, rather than being deterred by going through multiple proceedings.

Madhri Guruswamy and Balakumar are practising advocates at the Principal Bench and Madurai Bench of the Madras High Court.