Supreme Court: Enquiry under POSH Act is to be conducted afresh if there is violation of principle of natural justice

 In fact, the glaring defects and the procedural lapses in the inquiry proceedings took place only thereafter, in the month of May, 2009, when 12 hearings, most of them back-to-back, were conducted by the Committee at a lightning speed. On the one hand, the Committee kept on forwarding to the Appellant, depositions of some more complainants received later on and those of other witnesses and called upon him to furnish his reply and on the other hand, it directed him to come prepared to cross-examine the said complainants and witnesses as also record his further deposition, all in a span of one week. 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. It was all this undue anxiety that had led to short-circuiting the inquiry proceedings conducted by the Committee and damaging the very fairness of the process. {Para 73}

74. For the above reasons, the Appellant cannot be faulted for questioning the process and its outcome. There is no doubt that matters of this nature are sensitive and have to be handled with care. The Respondents had received as many as seventeen complaints from students levelling serious allegations of sexual harassment against the Appellant. But that would not be a ground to give a complete go by to the procedural fairness of the inquiry required to be conducted, more so when the inquiry could lead to imposition of major penalty proceedings. When the legitimacy of the decision taken is dependent on the fairness of the process and the process adopted itself became questionable, then the decision arrived at cannot withstand judicial scrutiny and is wide open to interference. It is not without reason that it is said that a fair procedure alone can guarantee a fair outcome. In this case, the anxiety of the Committee of being fair to the victims of sexual harassment, has ended up causing them greater harm.

75. This Court is, therefore, of the opinion 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 in the relevant Rules. The discretion vested in the Committee for conducting the inquiry has been exercised improperly, defying the principles of natural justice. As a consequence thereof, the impugned judgment upholding the decision taken by the EC of terminating the services of the Appellant, duly endorsed by the Appellate Authority cannot be sustained and is accordingly quashed and set aside with the following directions:

(i) The matter is remanded back to the Complaints Committee to take up the inquiry proceeding as they stood on 5th May 2009.

(ii) The Committee shall afford adequate opportunity to the Appellant to defend himself.

(iii) The Appellant shall not seek any adjournment of the proceedings.

(iv) A Report shall be submitted by the Committee to the Disciplinary Authority for appropriate orders.

(v) Having regard to the long passage of time, the Respondents are directed to complete the entire process within three months from the first date of hearing fixed by the Committee.

(vi) The procedure to be followed by the Committee and the Disciplinary Authority shall be guided by the principles of natural justice.

(vii) The Rules applied will be as were applicable at the relevant point of time.

(viii) The decision taken by the Committee and the Disciplinary Authority shall be purely on merits and in accordance with law.

(ix) The Appellant will not be entitled to claim immediate reinstatement or back wages till the inquiry is completed and a decision is taken by the Disciplinary Authority.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2482 of 2014

Decided On: 12.05.2023

Aureliano Fernandes Vs. State of Goa and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and Hima Kohli, JJ.

Author: Hima Kohli, J.

Citation: AIR 2023 SC 2485,MANU/SC/0572/2023.

Read full Judgment here: Click here.

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Leading Supreme Court Judgment on Prevention of Sexual harassment Act (POSH ACT 2013)

O. DIRECTIONS

79. To fulfil the promise that the PoSH Act holds out to working women all over the country, it is deemed appropriate to issue the following directions:

(i) The Union of India, all State Governments and Union Territories are directed to undertake a time bound exercise to verify as to whether all the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. have constituted ICCs/LCs/ICs, as the case may be and that the composition of the said Committees are strictly in terms of the provisions of the PoSH Act.

(ii) It shall be ensured that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, details of the 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.

(iii) A similar exercise shall be undertaken by all the Statutory bodies of professionals at the Apex level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes.

(iv) Immediate and effective steps shall be taken by the authorities/ managements/employers to familiarize members of the ICCs/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 submitted.

(v) The authorities/management/employers shall regularly conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of the ICCs/LCs/ICs and to educate women employees and women's groups about the provisions of the Act, the Rules and relevant Regulations.

(vi) The National Legal Services Authority(NALSA) and the State Legal Services Authorities(SLSAs) shall develop modules to conduct workshops and organize awareness programmes to sensitize authorities/managements/employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar.

(vii) The National Judicial Academy and the State Judicial Academies shall include in their annual calendars, orientation programmes, seminars and workshops for capacity building of members of the ICCs/LCs/ICs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules.

(viii) A copy of this judgment shall be transmitted to the Secretaries of all the Ministries, Government of India who shall ensure implementation of the directions by all the concerned Departments, Statutory Authorities, Institutions, Organisations etc. under the control of the respective Ministries. A copy of the judgment shall also be transmitted to the Chief Secretaries of all the States and Union Territories who shall ensure strict compliance of these directions by all the concerned Departments. It shall be the responsibility of the Secretaries of the Ministries, Government of India and the Chief Secretaries of every State/Union Territory to ensure implementation of the directions issued.

(ix) The Registry of the Supreme Court of India shall transmit a copy of this judgment to the Director, National Judicial Academy, Member Secretary, NALSA, 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.

(x) Member-Secretary, NALSA is requested to transmit a copy of this judgment to the Member Secretaries of all the State Legal Services Authorities. Similarly, the Registrar Generals of the State High Courts shall transmit a copy of this judgment to the Directors of the State Judicial Academies and the Principal District Judges/District Judges of their respective States.

(xi) The Chairperson, Bar Council of India and the Apex Bodies mentioned in sub-para (ix) 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.

80. The Union of India and all States/UTs are directed to file their affidavits within eight weeks for reporting compliances. List after eight weeks.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2482 of 2014

Decided On: 12.05.2023

Aureliano Fernandes Vs. State of Goa and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and Hima Kohli, JJ.

Author: Hima Kohli, J.

Citation: AIR 2023 SC 2485,MANU/SC/0572/2023.

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Whether complaint of sexual harassment made by one woman against another woman is maintainable?

A cursory glance at Section 2(m) of the 2013 Act shows that the term "respondent" brings within its fold "a person", thereby including persons of all genders. {Para 11}

12. Although there is substance in the submission of the petitioner that the said expression has to be read in conjunction with the rest of the statue as a whole, there is nothing in Section 9 of the 2013 Act [which has been referred to in Section 2(m)] to preclude a same-gender complaint under the Act. Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized.

13. That apart, the definition of "sexual harassment" in Section 2(n) cannot be a static concept but has to be interpreted against the back-drop of the social perspective. Sexual harassment, as contemplated in the 2013 Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act. A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act.

14. If Section 3(2) is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se. In such context, the language of Section 2(m), Section 2(n) and Section 3 of the 2013 Act is set out below:-

"2(m) "respondent" means a person against whom the aggrieved woman has made a complaint under section 9;

15. In such view of the matter, the act alleged by the private respondent to have been perpetrated by the petitioner, as evident from the complaint dated September 15, 2020 (Annexure P-5), is maintainable under the 2013 Act. Hence, the complaint cannot be turned down at the outset.

 IN THE HIGH COURT OF CALCUTTA

W.P.A. 9141 of 2020

Decided On: 27.11.2020

Malabika Bhattacharjee Vs. Internal Complaints Committe, Vivekananda College and Ors.

Hon'ble Judges/Coram:

Sabyasachi Bhattacharyya, J.

Citation:  MANU/WB/0752/2020.

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Whether Session court should set aside order of issue process if prima facie case is made out against accused?

 The aforesaid order was challenged by the Respondents before the Additional Sessions Judge. The Sessions Court held that no offence punishable Under Section 420 read with Section 120-B, Indian Penal Code was made out as the factum of earlier marriage of the Respondent No. 1 was clearly disclosed to the Appellant. The Sessions Judge failed to appreciate the fact that certain events had taken place thereafter, namely, apprising the Appellant about the decree of divorce having been passed and showing the forged copy thereof to him on mobile. The Learned Sessions Court has considered the revision against the summoning order as if after trial the findings of conviction or acquittal was to be recorded. It was a preliminary stage of summoning. For summoning of an Accused, prima facie case is to be made out on the basis of allegations in the complaint and the pre-summoning evidence led by the complainant. {Para 12.1.}

13. In a challenge by the Appellant to the aforesaid order in the quashing petition, the High Court dismissed the petition without recording any reasons.

14. Considering the material on record, in our opinion the approach of the Learned Sessions Court and the High Court in setting aside the summoning order against the Accused persons i.e. Respondent Nos. 1, 2 and 3 Under Section 420 read with Section 120-B Indian Penal Code is not legally sustainable.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2272 of 2024.

Decided On: 26.04.2024

Aniruddha Khanwalkar Vs. Sharmila Das and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J.

Citation:  MANU/SC/0350/2024.

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