PoSH Act applicable even if complainant and harasser work in different departments: Delhi High Court
In a recent case, Dr. Sohail Malik v. Union of India & Anr., the Delhi High Court ruled that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) applies even when the complainant and the harasser are employed by separate departments.
Nothing in the PoSH Act prohibits its application in situations where a woman employee is sexually harassed by a coworker while they are both employed in the same office, according to a division bench of Justices C. Hari Shankar and Manoj Jain.
According to the Court, limiting the PoSH Act’s protections to just those employed by the same departments would cut to the heart of the law’s ethos and philosophy. It stated that the goals of the PoSH Act cannot be compromised in an era where women are on par with men in every professional achievement.
Therefore, it is necessary under the Constitution for women and men to be treated equally in all spheres of life. Women must be able to work in an environment that is equally safe and secure as it is for males. Therefore, it is odious to our constitutional ethos even for a woman to fear that her safety may be compromised or threatened at work, according to the decision.
The Bench stated that any interpretation of the Act’s provisions that minimises or prevents the full realisation and implementation of its aims must be firmly avoided.
These comments were made by the court as it considered a challenge to a meeting notification sent out by the Internal Complaints Committee (ICC) submitted by an officer of the Indian Revenue Service (IRS).
After an Indian Administrative Service (IAS) officer complained that the petitioner, Dr. Sohail Malik, had harassed her sexually, she was given notice.
The Central Administrative Tribunal (CAT) heard the initial appeal of the notice. The CAT, however, rejected Malik’s argument. Malik argued that because the complainant and he are employees of different departments, the ICC of one department is ineligible to investigate the officer in question under the PoSH Act.
Malik’s attorney argued that the ICC was required by Section 13 of the PoSH Act to communicate its decision to the employer, who was then required to take appropriate action. It was stated that Section 13 would no longer apply because the employer, who is the head of the office where the complaint is employed, has no disciplinary authority over the petitioner even if the ICC’s decision is transmitted to him.
The Bench rejected Malik’s contention after carefully reviewing the issue and determined that nothing in Section 11 (1) of the PoSH Act limits the law’s applicability to situations in which both the victim and the perpetrator are employees of the same department.
“Section 11(1) just provides that the ICC shall investigate the complaint “in accordance with the service regulations applicable to the respondent” “when the respondent is an employee.” The phrase “in accordance with the service rules applicable to the respondent” itself, in our opinion, suggests that the statute has taken into account the possibility that the respondent may be subject to service rules that are different from those that apply to the complainant or the department where the complainant is employed.
The Court continued, “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 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.’
“Therefore, under Section 13(1), 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,” the statement continued. “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.”
Finally, the Court confirmed the CAT’s ruling and declined to overturn the ICC notice.
The petitioner was represented by senior attorney Arun Bhardwaj, as well as attorneys RK Saini, Nishant Bahuguna, and Usha Sharma.
Vineet Dhanda, Central Government Standing Counsel (CGSC), and solicitors Vinay Yadav and Gurleen Kaur spoke on behalf of the Union of India.
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