Introduction
In its recent judgment in Aureliano Fernandes Vs. State of Goa and Others(Civil Appeal No. 2482 of 2014), the Supreme Court of India (“Supreme Court”) observed that even after a decade of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) being formulated, its implementation and enforcement is still inadequate. To remedy the situation, the Supreme Court issued various directions for effective implementation of the POSH Act. For reference, the POSH Act imposes an obligation on all employers, having 10 (ten) or more workers to set up an internal committee to look into sexual harassment complaints. It also lays down the procedure for conducting an inquiry into the complaints, amongst other things.
Factual background
An inquiry was initiated against Mr. Aureliano Fernandes (“Appellant”) by the internal committee constituted by Goa University (“University”) after it received multiple complaints against the Appellant from female students, alleging sexual harassment. The internal committee, after passing an ex-parte orderagainst the Appellant on account of his absence during the inquiry proceedings on multiple occasions, held that his act has amounted to grave misconduct and consequently recommended that his services be terminated by the University. Subsequently, in view of the gravity of the charges levelled against him, the Appellant was terminated from his services and was disqualified from future employment at the University.
The Appellant challenged the aforesaid order before the High Court in Bombay (Goa Bench) (“High Court”) by way of a writ petition. The High Court observed that the internal committee had granted ample opportunities to the Appellant, but he had failed to appear before it. In such circumstances, the internal committee could not be blamed for proceeding ex-parte against him. The plea of the Appellant that the internal committee was improperly constituted, or at the very least its composition was questionable as it comprised persons who were junior to him in the department was also rejected on the grounds of it being meritless. Further, the contention that the inquiry had been conducted with undue haste, without giving a fair and reasonable opportunity to the Appellant to defend himself, was also turned down. As a result, the High Court did not see any merit in the said petition and dismissed it by holding that the principles of natural justice and the service rules in the case had not been breached.
Aggrieved by the judgment of the High Court, the Appellant challenged it before the Supreme Court.
Ruling of the Supreme Court
The Supreme Court observed that the inquiry was completed in a “tearing hurry” and the Appellant was not given reasonable time to effectively participate in the proceedings even though several dates were missed by the Appellant, which were on medical grounds. The hasty manner in which the inquiry proceedings were conducted were against the principles of natural justice as it did not give the Appellant a proper opportunity of being heard. On grounds of procedural irregularities, the Supreme Court quashed and set aside the judgment passed by the High Court and the matter was sent back to the internal committee for conduct of a fresh inquiry, in accordance with the principles of natural justice.
Directions issued by the Supreme Court
Through this case, the Supreme Court noticed serious lapses in the enforcement of the POSH Act even after such a long time. The Supreme Court observed that however salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless there is strict adherence to the enforcement regime and a proactive approach by all State and non-State actors. Accordingly, in order to “fulfil the promise that the POSH Act holds out to working women all over the country”, the Supreme Court inter alia issued the following directions:
(a) The Union of India, the State Governments and Union Territories must undertake a time bound exercise to verify whether all the concerned ministries, departments, government organisations, authorities, public sector undertakings, institutions, bodies, etc., have constituted LCs (local committees)/ ICs (internal committees), as the case may be, and that the composition of the said committees are strictly in terms of the provisions of the POSH Act.
(b) Ensure that necessary information regarding the constitution and composition of LCs/ ICs, details including e-mail IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, as also the relevant rules, regulations and internal policies are made readily available on the website of the concerned authority/ functionary/ organisation/ institution/ body, as the case may be. The information furnished shall also be updated from time to time.
(c) Immediate and effective steps to be taken by the authorities/ managements/ employers to familiarise members of the LCs/ ICs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is finally concluded and the report is submitted.
(d) The authorities/ management/ employers must regularly conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of LCs/ ICs and to educate women employees and women’s groups about the provisions of the POSH Act, the rules and relevant regulations.
Conclusion
It is clear from the above directions that the Court has largely focused on inter alia public institutions, universities, government authorities, etc., and has not made specific reference to private establishments. However, given that the provisions of the POSH Act apply equally to private establishments as well, greater scrutiny of even private establishments should be expected in the coming weeks and months. Given that sexual harassment is a topical issue, non-compliance with the POSH Act may also expose companies to reputational risks. Many of the directions of the Supreme Court only reiterate the existing obligations under law, and private employers would accordingly be well advised to undertake a review of the compliances under the POSH Act (in relation to IC constitution, training IC members, sensitising employees, conducting inquiries, etc.) and ensure corrective actions are taken wherever needed.
For further information, please contact:
Rashmi Pradeep, Partner, Cyril Amarchand Mangaldas
rashmi.pradeep@cyrilshroff.com
