PoSH Act applicable even if complainant and harasser work in different departments: Delhi High Court

The Delhi High Court recently held that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) is applicable even in cases where the complainant and the harasser work in different departments [Dr Sohail Malik v. Union of India & Anr]..A Division Bench of Justices C Hari Shankar and Manoj Jain said there is nothing in the PoSH Act that limits its scope only to cases where a woman employee is sexually harassed by another employee working in her own office, and bars its application where the delinquent employee is employed elsewhere.The Court further said that if the provisions of the PoSH Act are limited only to the people working in the same departments, it would strike at the very root of the statute, its ethos and philosophy.It observed that in an era where women are equalling men in every professional achievement, there can be no compromise on objectives of the PoSH Act.“Equalizing of the sexes in every aspect of life is, therefore, a constitutional imperative. The working environment is required to be as safe and secure for women, as it is for men. Even an apprehension, by a woman, that her safety might be compromised or endangered in the workplace is, therefore, abhorrent to our constitutional ethos,” the order stated..Any interpretation of the provisions of the Act which downplays or impedes complete achievement and implementation of its objectives, has to be firmly eschewed, the Bench said..The Court made these observations while dealing with a plea filed by an Indian Revenue Service (IRS) officer challenging a meeting notice issued by the Internal Complaints Committee (ICC).The petitioner, Dr Sohail Malik, was issued notice after an Indian Administrative Service (IAS) officer filed a complaint alleging that he had sexually harassed her.The notice was first challenged before the Central Administrative Tribunal (CAT). However, the CAT dismissed Malik’s plea..It was Malik’s case that he and the complainant work in separate departments and that the ICC of one department cannot conduct an inquiry under the PoSH Act against an officer belonging to another department.Malik’s counsel contended that under Section 13 of the PoSH Act, the ICC has to forward its decision to the employer, who has to take action. The employer being the head of the office where the complainant is working, even if the decision of the ICC is forwarded to the said employer, as he has no disciplinary control over the petitioner, Section 13 would become inoperative, it was argued..After considering the case, the Bench rejected Malik’s argument and held that nothing in Section 11 (1) of the PoSH Act restricts its application only to cases where the victim and the perpetrator are employees of the same department.“Section 11(1) merely states that, ‘where the respondent is an employee’, the ICC shall proceed to make inquiry into the complaint ‘in accordance with the service rules applicable to the respondent’. In our considered opinion, the use of the words “in accordance with the service rules applicable to the respondent’ itself indicates that the statute has kept in mind a possibility where the respondent may be governed by service rules which are not those which apply to the complainant or to the department where the complainant is working.”.The Court added that in order to make provisions of the PoSH Act “meaningful and applicable even in a case where the alleged perpetrator of sexual harassment is an employee of another department, the definition of ‘employer’ under Section 2(g)(i) of the SHW Act has to be read as including the employer of the department where the alleged perpetrator of sexual harassment is working.“Under Section 13(1), therefore, if the employer who has to take action on the basis of the findings of the ICC is the head of a department other than that in which the complainant-employee is working, we see no embargo under the SHW Act on the findings of the ICC being forwarded to that employer, who has disciplinary control over the alleged perpetrator of sexual harassment, to take action on the basis thereof.”.Finally, the Court refused to quash the ICC notice and upheld the CAT's decision..Senior Advocate Arun Bhardwaj along with Advocates RK Saini, Nishant Bahuguna and Usha Sharma appeared for the petitioner.Central Government Standing Counsel (CGSC) Vineet Dhanda along with Advocates Vinay Yadav and Gurleen Kaur appeared for the Union of India..[Read Order]

PoSH Act applicable even if complainant and harasser work in different departments: Delhi High Court

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