The undisputed rule for conducting proceedings under the Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the “POSH Act”) is that though the IC/LC can devise its own procedure for inquiry as long as the principles of natural justice are followed.
In a recent case named Sukalyan Haldar v. State of West Bengal and Others, the Calcutta High Court granted interim relief to the Secretary of St. Stephens School, Dumdum, (hereinafter referred to as the “Petitioner”) wherein the Petitioner was terminated on the basis of a complaint of sexual harassment made against him by a female colleague for allegedly referring to as her as “faltu meye”.
The Court, in the case while hearing the petition at length directed the Petitioner’s reinstatement and holding that the comment “faltu meye” can be used in various contexts.
Facts of the Case
The complaint of sexual harassment was filed against the Petitioner for allegedly making a remark, “faltu meye” with the Internal Committee of the St. Stephens School (hereinafter referred to as the “Concerned School”). However, the Local Committee assumed jurisdiction on the pretext that the IC was not properly constituted. The LC held the Petitioner guilty of sexual harassment wherein the remark was construed as to be a lewd remark and passed an order of termination (hereinafter referred to as the “Impugned Order”) of the Petitioner from the services of the Concerned School. The LC additionally issued directions to IC of the Concerned School for improper constitution of the IC. Aggrieved by the recommendations of the LC, the Petition was filed in the High Court of Calcutta.
Contentions of the Petitioner
The Petitioner challenged the order of termination of the LC on the following grounds:
Jurisdiction of the Local Committee
The Counsel for the Petitioner contended that as per the POSH Act, it is the IC that is entitled to deal with the allegations made against the Petitioner, however the LC assumed the jurisdiction on the pretext that the IC of the Concerned School was not properly constituted. In pursuance of the same, it was contended that even if the IC was not properly constituted, the same did not confer any authority on the LC to decide the issue.
Further, the LC could only receive the complaints of sexual harassment for establishment where the IC is not constituted due to having less than 10 workers, or if the complaint was against the employer himself. In furtherance of the same, it was submitted that the head of the institution would be Bishop and that the Petitioner could not be the employer in an attempt to invoke jurisdiction of the LC. The Petitioners further argued that even if the charges are proved, could lead to termination on the basis of the Rules framed by the “Appropriate government” under Section 29 of the POSH Act and interpreted the same in present contact would mean state government. However, the POSH Rules, 2013, that were relied on by the LC were framed by the Central Government however, the appropriate government in this respect would be the State Government.
The remark “faltu meye”
On merits, the counsel for the Petitioner argued that the expression “faltu meye” was construed to be “cheap woman” and a lewd remark, whereas the dictionary meaning, under the Bengali dictionary of A.T. Dev, of the word “faltu” is extra, spare, excessive, much, unnecessary, useless. Hence, there is no lewd context attached to the same.
Principles of Natural Justice
The Petitioner contended that the Petitioner was also not given access to the documents relied on by the LC and thus, the findings were vitiated by violation of principles of natural justice.
Arguments of the Respondents
The Respondents argued that the complaint was against the “employer” as construed under the provisions of the POSH Act and placed on record several documents arguing that the Petitioner was the employer under Section 2(g) of the POSH Act, thus, the LC had the jurisdiction to hear the matter.
The counsel for the School Authority contended that it was the Complainant herself who approached the IC first and made her complaint before the IC and later challenged the jurisdiction of the IC and moved to the LC.
Observations of the Court
On considering the contentions of both the sides, the Court upheld the jurisdiction of the LC by analyzing the provisions of the POSH Act. The Court made the following observations in this regard:
- The LC had jurisdiction to receive and decide the complaints of sexual harassment against the Petitioner. As per the arguments of the petitioner, the employer of the Diocese was the Bishop and not the Secretary of the Managing Committee. The Court analysed the Section (o) of the POSH Act that defines ‘workplace’ and observed that the sub-clause (ii) of the Section includes ‘any private sector institution carrying on educational services’ to be included within the definition of “workplace”. It is the Concerned School, and not the entire Diocese, which is the “workplace” under the POSH Act vis-à-vis the alleged victim. Thus, the Court arrived at the conclusion that the Secretary of the Managing Committee of the Diocese would undoubtedly be classified as “employer” since, being a member of the Managing Committee of the school, he was responsible for “management”;
- Since the State government has not made any rules, the POSH Rules shall prevail;
- On the merits, the Court observed that the LC did not discuss the context of the alleged remark “faltu meye” at all. Thus, the expression can be used in various contexts. The backdrop of the usage is would lend color and texture to the comment, thus making it necessary for the adjudicatory authority to explore the antecedents and backdrop of such usage. The LC failed to take into consideration the entire gamut of the complaints made in detail by the victim against the Petitioner;
- Regarding the opportunity of being heard, it was held that the opportunity ought to be given to the parties to peruse the documents, if any, relied on by the LC in passing the Impugned Order. The Court remarked:“These ingredients of perversity and lack of opportunity of informed hearing to the parties, particularly the petitioner, in the decision of the LC, which vitiates the impugned decision on the ground of violation of principles of natural justice”
- With the question pertaining to the LC’s directions to the Respondent School regarding the alleged improper formation of the IC, the Court held that such directions were passed patently without jurisdiction. The POSH Act prescribes penalty for non-compliance with the provisions of the Act under Section 26 (1) (a) further contemplates the employer’s failure to constitute an IC under Section 4 (1) to attract punishment with fine which may extend to 50 thousand rupees. It was further iterated that nothing in the Act confers jurisdiction on the LC to adjudicate upon the proprietary and legality of the constitution of the IC and/or pass directions on the institutions to take steps regarding the constitution of the IC.
Qualifications of the fourth Member of the IC- The question of improperly formed IC
The Court also dealt with the issue of the allegations of improper constitution of the IC and analysed the eligibility criteria for the fourth member of the IC. The Court noted that the mere fact that the fourth member as contemplated in Section 4(2) (c) of the POSH Act is also an employee of the Concerned School or the concerned Diocese per se does not vitiate his credentials to be member of the IC if he is otherwise eligible for the post. The statute does not stipulate that the members of the IC cannot be employees of the institution as well.
Directions of the Court
- The LC was directed to consider the issues afresh and give ample opportunity to the Petitioner/Accused to present their versions of the case with relevant documents, if necessary.
- The LC should arrive a reasoned decision and communicate the same to all concerned parties;
- If the decision of the LC is based on any expression, then the entire backdrop and context of the usage of such expression shall be considered on the basis of the materials on record to ascertain whether the there was any sexual overtone to such usage;
- Upon arriving at a decision, the LC must communicate the same in writing to the complainant as well as the Accused within a week of such decision;
- The entire exercise shall be conducted within a period of two months;
- The LC must take all necessary steps consequential to its decision and commensurate with the alleged offence in accordance with the law;
- Till the complaint is decided, the Court granted the Petitioner the relief to continue to pursue his profession in the Concerned School. However, the Petitioner was directed to not to influence or seek to influence the fresh adjudication by the LC or the concerned witnesses and or tamper with the relevant documents in any manner whatsoever. The Petitioner was also refrained from interacting with the victim and/or be a part of any major decision regarding the alleged victim during the tenure of the adjudication;
- The LC and/or Complainant or any other employee are free to approach the Appropriate Government for imposition of any penalty for non-compliance with the provisions of the Act regarding the proper formation of IC, if any. On receipt of the complaint, the State Government shall decide such question in accordance with law on giving adequate opportunity of representation to all concerned and pass appropriate orders in that regard.
 W.P.A. No. 18829 of 2023