Validity of Interdepartmental Inquiry under POSH Act

July 28, 2023
stirring points for various debates

By Anuradha Gandhi and Rachita Thakur


The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the “POSH Act”) came into being a decade ago but still suffers from certain lacunae that often leads to twisting the letter of the law and negatively affects the spirit too.

Over the years, the provisions of the POSH Act have become stirring points for various debates on its scope and applicability under changing scenarios. The intent of the POSH Act is to curtail the instances of sexual harassment however, in certain circumstances, ambiguity as to the scope of the POSH Act steeps in.

In Dr Sohail Malik v. Union of India & Anr., the question as to whether a female official sexually harassed by another government official from a different department is entitled to Redressal as per the provisions of the POSH Act was put before the court to analyze and decide on.

Reason for filing of Writ Petition

The present proceedings emanate from a complaint by an officer in the Department of Food and Public Distribution, Ministry of Consumer and Public Distribution, accusing the Petitioner, who was a 2010 Batch officer of the Indian Revenue Service (IRS), of sexually harassing her. The complaint was presented before the Internal Committee (IC) of the complainant’s department i.e. the Department of Food and Public Distribution. The Petitioner was accordingly served with a notice dated June 13, 2023 from the IC scheduling a hearing on the complaint. The Petitioner, instead of appearing in the hearing moved the Central Administrative Tribunal, Principal Bench, New Delhi, (hereinafter referred to as the “Tribunal”) questioning the jurisdiction of the IC to examine the complaint of the complainant.

The Tribunal rejected the said challenge vide its judgment dated June 23, 2023 and aggrieved by this, the Petitioner approached the Hon’ble High Court of Delhi with a writ petition.

Submissions made by the Petitioner

The Counsel for Petitioner at the very outset of the proceedings drew attention of the court on various provisions of the POSH Act such as clauses (f), (g), (m) and (o) of Section 2 as well as Sections 4(1), ((1) and 13 that indicate that IC of one department cannot conduct an inquiry even if it is on a complaint by an officer in the said department, against an employee who belongs to another department and is not, therefore, within the disciplinary control of the department where the complainant is working.

It was further contended that the complainant, as an All India Service Officer, is governed by the All India Service (Discipline & Appeal) Rules, 1969 while the Petitioner is governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

One of the essential query that the Court posed before the counsel of the Petitioner was whether,if the IC of the complainant’s department does not have jurisdiction to inquire into her complaint because the Petitioner is not an officer of the same department, can the complaint be inquired by any other IC.

The counsel for Petitioner purported that the POSH Act is specifically silent on the said aspect of law and that it is for the legislature to fill the statutory lacunae.

Analysis of the Court: Purposive Interpretation

The Hon’ble Court referred to the judgements of the Supreme Court in Shailesh Dhairyawan v. Mohan Balkrishna Lulla1 and Richa Mishra v. State of Chhattisgarh,2 wherein it was settled that the rule of purposive construction has replaced the rule of plain meaning of the statute as the “golden rule” of interpretation of statutes and quoted the below:

The principle of ―purposive interpretation‖ or ―purposive construction‖ is based on the understanding that the court is supposed to attach that meaning to the provisions which serve the ―purpose‖ behind such a provision. The basic approach is to ascertain what is it designed to accomplish? To put it otherwise, by interpretative process the court is supposed to realise the goal that the legal text is designed to realise.

The court further added that any interpretation which would dilute, or defeat, the purpose of the legislation, which is to ensure a safe working environment for women has, therefore, to be sedulously eschewed. The court read through the provisions of the POSH Act in consonance with the Article 11 of the Convention on Elimination of All Forms of Discrimination (CEDAW),3 to which India is a party along with the guidelines framed under by the Supreme Court in the case of Vishaka v. State of Rajasthan,4 and listed the following objectives of the POSH Act:

1. Ensuring that women’s right to equality, life and liberty is not violated or compromised
2. Providing of a secure and friendly work environment;
3. Social and economic empowerment of women;
4. Inclusive growth
5. Creating of an enabling environment for women which is equitous, safe and secure in every respect;
6. Ensuring women are treated with due respect, decency and dignity at the workplace;
7. Equality in employment;
8. Ensuring women are not subjected to gender-specific violence;
9. Protection and promotion of women’s constitutional rights and, at the end of working day;
10. Ensuring that every woman is provided a safe working environment, insulated from any act of sexual harassment, of any form.

Reading the set objectives of the POSH Act along with that of the Constitution of India, the court observed that if the contentions of Petitioner’s counsel are to be accepted then a lady officer in a department, who is subjected to sexual harassment by an officer only of the same department, will have the right to seek recourse to the POSH Act, no remedy would be available if the harassment is perpetrated by an officer of another department, solely because he works under another “employer”, and is not subject to the disciplinary control of the department where the complainant is working.

Such an interpretation would strike at the very root of the POSH Act and its ethos and philosophy.

Decision of the Court

The court agreed with the decision of the Tribunal where it held that there is nothing in Section 11(1)5 of the POSH Act that restrict its application only to cases where the respondent i.e. the officer against whom sexual harassment is being alleged, is the employee of the department where the complainant is working. Instead, said section merely states that, “where the respondent is an employee”, the IC shall proceed to make an inquiry into the complaint in accordance with the service rules applicable to the respondent which thereby indicates that the statute has kept in mind the possibility where the respondent may be governed by service rules that do not apply to the complainant.

The court rejected the contention of Petitioner’s Counsel that under section 136 of the POSH Act, the IC has to forward its decision to the employer, who has to take action on the basis thereof. The employer, in the present case being the head of the complainant’s department has no disciplinary control over the Petitioner. While interpreting the width of the definition of “employer”, the court iterated that the same has to be read as to including the employer of the department where the alleged perpetrator of sexual harassment is working.

The court at the end also rejected the residual contentions of the Petitioner as to the non-applicability of Section 197 of the POSH Act by reiterating that there is nothing in the POSH Act which limits the scope only to cases where a woman employee is sexually harassed by another employee working in her own office, and accepts its application where the delinquent employee is elsewhere.

The Court therefore, decided not to interfere with the findings of the Tribunal. On request of the Petitioner’s Counsel the Court directed the IC to conduct the hearing for July 4, 2023 instead of June 30, 2023.

1 (2016) 3 SCC 619
2 (2016) 4 SCC 179
3 Article 11 of the Convention on Elimination of All Forms of Discrimination (CEDAW), to which India is a party, requires State parties to take all appropriate measures to eliminate discrimination against women in the field of employment.
4 (1997) 6 SCC 241
5 Section 11 of the POSH Act- Inquiry into complaint
6 Section 13 of the POSH Act – Inquiry Report
7 Section 19 of the POSH Act – Duties of employer

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