With a significant ruling in the case of Aureliano Fernandes v State of Goa and Others1, the Supreme Court has highlighted several lapses and gaps in the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 ("POSH Act"). The Supreme Court has prescribed several guidelines in the case and directed the State and non-State actors (for example educational institutions, private hospitals and nursing homes) to ensure the strict enforcement of the POSH Act in the interest of all working women and to make sure that the altruistic object behind enacting the POSH Act is achieved in letter and spirit.
In March 2009, an inquiry was initiated by the standing committee of Goa University against appellant, the head of the political science department in the University, to answer to the charges of physical harassment in nine complaints filed against him. The appellant alleged bias during the hearings of the standing committee held on April 27 and April 28, 2009. An additional complaint was filed against the appellant for which he sought extension to file a reply. The committee declined the appellant's request to engage a lawyer and advanced the date of the next hearing from June 12, 2009, to May 12, 2009. The appellant was handed over with six more depositions and granted one last opportunity to present himself before the committee on May 23, 2009.
Subsequently, the committee proceeded ex-parte (without the presence of the appellant) and submitted its report, dated June 5, 2009, to the registrar of Goa University recommending that the appellant's services be terminated. On June 13, 2009, the executive council of Goa University ("EC") accepted the report placing the appellant under immediate suspension and proceeded to conduct an inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 ("CCS CCA Rules"). However, in view of Supreme Court's judgment in Medha Kotwal Lele and others v Union of India and Others2, which held that the report of the complaints committee for prevention of sexual harassment at the workplace shall be deemed to be an 'inquiry report' under the CCS CCA Rules, the inquiry proceedings by the EC stood terminated. The EC decided that the appellant was unfit to be retained in service in view of the gravity of charges levelled against him. He was later dismissed from service vide order dated May 10, 2010, and disqualified from future employment under Rule 11(IX) of the CCS CCA Rules. The order of EC was upheld by the Governor of Goa and Chancellor of Goa University (Appellate Authority) vide order dated April 19, 2010.
The appellant challenged the orders of the EC and Appellate Authority before the High Court of Bombay, which dismissed his writ petition. In appeal, the Supreme Court set aside the judgment of the High Court and quashed the decision taken by the EC of terminating the services of the appellant. The matter was remanded to the complaints committee to take up fresh inquiry proceedings as they stood on May 5, 2009, and considering the significant passage of time, the Supreme Court directed the respondents to complete the entire process within three months from the first date of hearing fixed by the complaints committee.
Deficiencies In Inquiry Proceedings
The Supreme Court has considered the issue at length to examine whether the inquiry by the standing committee at Goa University was conducted in violation of the principles of natural justice and the relevant rules. It stated that even though the POSH Act had not been enacted when the proceedings, subject matter of the present appeal had taken place, the field was occupied by the Vishaka guidelines3 which did not exclude application of the principles of natural justice and fair play in making procedural compliances. It held that the proceedings conducted by the committee with effect from the month of May 2009, fell short of the "as far as practicable" norm prescribed under Rule 14 of CCS CCA Rules. It noted that the committee constituted by the Goa University to examine such a complaint dons the mantle of the 'inquiring authority' and is therefore expected to adopt a fair procedure that is feasible and elastic for conducting an inquiry in a sensitive matter like sexual harassment at the workplace, without compromising on the principles of natural justice. It has emphasised on the fairness of the inquiry proceedings to be conducted stating that "it will be equally counterproductive to have an ill prepared committee conduct a half-baked inquiry that can lead to serious consequences, namely, imposition of major penalties on the delinquent employee, to the point of termination of service."
In the case of Aureliano Fernandes, the Supreme Court found that even though complaints and depositions were made available to the appellant on time and the charges framed against the appellant were made known to him, the committee attempted to fast forward the entire inquiry proceedings and declined to grant a reasonable time to the appellant to effectively participate in the said proceedings. It noted that the time span for concluding an inquiry prescribed under the CCS CCA Rules is ordinarily within a period of 6 (six) months from the date of receipt of the order of appointment. However, in the given case, the said process was completed within 39 (thirty-nine) days. The Supreme Court stated that the hurriedness of the committee was apparent from the letter dated May 5, 2009, by which the appellant was informed that the next date for filing of reply and for recording further depositions was June 12, 2009. However, the committee advanced the said date by a month. Further, the committee gave unreasonable amount of time to the appellant to cross-examine the complainants and witnesses and record his deposition while it simultaneously kept handing him more depositions. It has further stated that even if the medical grounds taken by the appellant seemed suspect, the committee ought to have given him reasonable time to prepare his defence, more so when his request for being represented through a lawyer had already been declined.
Directions pertaining to compliance under POSH Act
The Supreme Court further deliberated on the poor enforcement of the POSH Act and voiced its concern over a survey published by a daily newspaper that reported that out of the 30 national sports federations in the country, 16 had not constituted an Internal Complaints Committee (ICC). Further, where the ICC have been constituted, they do not have the stipulated number of members or lack the mandatory external member. Accordingly, the Supreme Court issued the following directives to improve the implementation of the POSH Act in the interest of working women across the country:
- The union of India, all state governments, and union territories are required to undertake a time-bound exercise, to verify whether all the concerned ministries, departments, government organisations, authorities, public sector undertakings, institutions, bodies, etc. have constituted committees strictly in accordance with the POSH Act.
- Updated information regarding the constitution and composition of the committees, details of the email IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, relevant rules, regulations, and internal policies are required to be made readily available on the website of the concerned authority.
- All statutory bodies of professionals at the "apex level" and the state level, including those regulating doctors, lawyers, architects, chartered accountants and other professionals, along with universities, colleges, training centres and educational institutions, and government and private hospitals and nursing homes, are required to conduct a similar exercise.
- The authorities, management and employers are to take immediate steps in familiarising the members of the committee with the manner of conduct of an inquiry.
- The authorities, management and employers are to conduct orientation programmes, workshops, seminars, and awareness programmes to upskill members of the committees and to educate women about the provisions of the law.
- The National Legal Services Authority and the state legal services authorities are to develop modules to conduct workshops and organise awareness programmes to sensitise authorities, managements, employers, employees, and adolescent groups with the provisions of the POSH Act.
- The National Judicial Academy and the state judicial academies are to include in their annual calendars, orientation programmes, seminars, and workshops for capacity building of members of the committees established in the high courts and district courts and for drafting standard operating procedures to conduct an inquiry.
- The secretaries of all the ministries of the union government and the chief secretaries of every state and union territory are directed to ensure the implementation of these directions.
- The Registry of the Supreme Court of India has to transmit a copy of this judgment to the Director, National Judicial Academy, Member Secretary, National Legal Services Authority, Chairperson, Bar Council of India and the Registrar Generals of all the High Courts. The Registry shall also transmit a copy of this judgment to the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and the Engineering Council of India for implementing the directions issued.
- The Chairperson, Bar Council of India and the apex bodies stated in sub-para (i) above shall in turn, transmit a copy of this judgment to all the State Bar Councils and the State Level Councils, as the case may be.
The Supreme Court had further directed the union government, as well as all states and union territories, to file affidavits and report on compliance with the aforesaid directions within a period of 8 (eight) weeks.
The judgment in the Aureliano case has reignited the need to strengthen the compliance with anti-sexual harassment law at workplaces across the country. Though the Supreme Court directions laid down in the case are targeted at the public authorities and departments, this judgment has major implications for entities in private sectors as well which are also required to ensure compliance with POSH Act. The POSH Act mandates the constitution of ICC by every employer at the workplace, and constitution of local committees (LCs) and internal committees (ICs) by the government, to conduct inquiries into sexual harassment. Proper constitution of committees as prescribed under the POSH Act in a time bound manner has been directed by the Supreme Court to ensure that entities do not continue to flout the mandate under the POSH Act. Further, there is a need to improve the functioning of the committees wherever constituted and raise awareness among the members of the committees regarding the law and procedure to be adhered during conduct of such inquiries so that fairness and objectivity in inquiry proceedings is not compromised. Appropriate training sessions will be required for women employees as well to ensure that they are apprised about their rights in case they face harassment. Adherence to these directions by the organisations will go a long way in mitigating the apprehensions created due to the poor enforcement of POSH Act.
1. Civil Appeal No. 2482 of 2014, decided on May 12, 2023.
2. (2013) 1 SCC 297
3. In 1997, the Supreme Court of India issued a set of guidelines intended to protect women at the workplace in the case Vishaka and Others v. State of Rajasthan and Others (1997) 6 SCC 241. They were superseded in 2013 by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.
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