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Appeal to Departmental Authority Under POSH

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 27-Oct-2023

Source: Madhya Pradesh High Court

Why in News?

The Madhya Pradesh High Court (HC) has asserted that when the Internal Complaints Committee (ICC), established under the Prevention of Sexual Harassment at Workplace Act, 2013 (POSH), has compiled a report, there is no opportunity for further appeal to a Departmental Authority in the matter of Mukesh Khampariya v. The State Of Madhya Pradesh Thr. Its Secretary Department of Home Ministry & Ors.

What is the Background of the Mukesh Khampariya v. The State Of Madhya Pradesh Thr. Its Secretary Department of Home Ministry & Ors. Case?

  • The petitioner (Mukesh Khampariya) was working as a Station House Officer (SHO), in Police Station Gadarwara, District Narsinghpur, Madhya Pradesh.
  • Respondent No. 7 was posted in the said police station as Sub Inspector.
    • The petitioner was an officer supervising the work and duties of Respondent No.7.
    • Respondent was responsible for dereliction of duty on more than one occasion, due to which certain orders taking coercive action were passed against her.
  • It is alleged that as an afterthought respondent preferred a frivolous complaint claiming that the petitioner committed sexual harassment at workplace.
  • Pursuant to the complaint, an ICC was constituted as per the provisions of POSH.
  • The ICC of five members conducted the inquiry, recorded statement of witnesses and prepared the report stating that allegations against the petitioner for committing sexual harassment at workplace are not established.
  • Respondent No.7 thereafter preferred an application against the aforesaid report of ICC to the departmental authority, it was further held that allegation of sexual harassment could not be established against the petitioner in a report dated 25th December 2017.
  • Subsequently, a second investigation report was compiled on 25th July 2018, in accordance with the instructions from the Police Headquarters. In this report, the petitioner was held responsible for the accusations made against him.
  • The present petition is filed under Article 226 of the Constitution of India, 1950 against the order dated 25th June 2018.

What were the Court’s Observations?

  • Justice Sujoy Paul while allowing the writ petition and setting aside the impugned direction of the Police Headquarters as well as the second enquiry report, noted that “In the instant case, in absence of showing any source of power for issuing direction dated 25th June 2018, the said order and consequential enquiry report dated 25th July 2018 cannot sustain judicial scrutiny.”
  • The HC also observed that Section 18 of POSH expressly provides that appeals would only lie to a court or a tribunal and there is no provision of appeal to Departmental Authority.

What are the Provisions of POSH Act?

  • The landmark case that led to the enactment of this legislature is Vishakha and others v. State of Rajasthan (1997).
  • The guidelines passed in this case by the Supreme Court are as follows:
    • It is the duty of every employer to deliver a sense of security to every women employee.
    • Government should make strict laws and regulations to prohibit sexual harassment.
    • Any act of such nature should result in disciplinary actions and criminal proceedings should also be brought against the wrong doer.
    • The organization should have a well-set-up complaint mechanism for the redressal of the complaints made by the victim and should be subjected to a reasonable time.
    • This complaint mechanism should be in the form of complaint committee which need to be headed by a women member and at least 50% of the committee members should be women so that victims do not feel ashamed while communicating their problems.
    • This complaint committee should also have a third-party involvement in the form of an NGO or other body which is familiar with this issue.
    • There is a need for transparency in the functioning of this committee and for that there is a requirement for the submission of an annual report to the government.
    • Issues relating to sexual harassment should not be a taboo in the workers meeting and should be discussed positively.
    • It is the duty of the organization to aware the female employees about their rights by regularly informing them about the new guidelines issued and legislation passed.
    • The employer or the person in charge is duty biased to take the necessary and reasonable steps to provide support to the victim of sexual harassment takes place due to the act or omission of the third party.
  • These guidelines are not limited only to government employers and should also be followed by employers in the private sectors.
  • The case of Medha Kotwal Lele & Ors. v. Union of India & Ors. (2012) helped in the implementation of the guidelines formulated in Vishakha’s case as mentioned above, by issuing notices to all states and the union territories to impart the necessary steps.
  • Sexual Harassment is defined by Section 2(n) of the said act and S.3 (2) mentions some circumstances which lead to sexual harassment.
    • Section 2(n) - "Sexual Harassment" includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely: -
      • i. Physical contact and advances; or
      • ii. A demand or request for sexual favours; or
      • iii. Making sexually coloured remarks; or
      • iv. Showing pornography; or
      • v. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
    • Section 3 – (2) The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment -
      • i. Implied or explicit promise of preferential treatment in her employment;
      • ii. Implied or explicit threat of detrimental treatment in her employment;
      • iii. Implied or explicit threat about her present or future employment status;
      • iv. Interference with her work or creating an intimidating or offensive or hostile work environment for her;
      • v. Humiliating treatment likely to affect her health or safety.
    • Sections 4 and 6 of the said legislation provide for the constitution of Internal Complaints Committee and Local Complaints Committee respectively.
    • Section 18 – Appeal — (1) Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or sub-section (1) or subsection (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed.
    • (2) The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.