Source: Karnataka High Court 

Why in News?

A bench of Justice S Sunil Dutt Yadav held that the Appellate Authority has power to consider the application of petitioner for stay.               

• The Karnataka High Court held this in the case of Sri Nagraj v. The Hon’ble Addl. Labour Commissioner and Othrs. 

What was the Background of Sri Nagraj v. The Hon’ble Addl. Labour Commissioner and Othrs. Case?  

• The petitioner was appointed as a Finance Officer on contract basis. 
• During the course of his employment the 2nd Respondent lodged a complaint against him of sexual harassment at workplace which according to him is a false complaint. 
• The petitioner has filed detailed reply to the complaint. 
• The Internal Complaint Committee made out it’s recommendation by way of final report and the employer passed an order of transfer. 
• It is the case of the petition that an application of stay was filed before the Appellate Authority and till date no orders are passed and the Authority has merely issued notice in appeal without considering granting an interim order which has caused irreparable loss and injury to the petitioner. 
• Thus, the main grievance of the petitioner is that once the appeal is filed unless the application for stay is considered by the authority, cases where genuine grievance are raised would remain unaddressed till the appeal is decided which may take time with no relief in the interregnum.  

What were the Court’s Observations?  

• The provisions governing appeal under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH) are provided for under Section 18 of POSH and Rule 11 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (POSH Rules).    
• The Court observed that these provisions nowhere stipulate that the Appellate Authority has power to grant interim relief. 
• However, the Court observed that once the appellate authority has the power to set aside the impugned proceedings, it can be construed that the appellate authority also has power to consider passing of interim order of stay as well. 
• Further, the Court emphasized on the principle “ubi aliquid conceditur conceditur et id sine quo res ipsa esse non potest” which means that the Court must be deemed to possess all such powers as are necessary to make the order effective. 
• Thus, it was concluded that when there is no bar on grant of interim relief under the statute, such power to grant interim relief could be considered. 
• The writ petition was hence disposed off and the Court observed that the Appellate Authority has power to consider the application of petitioner for stay.

What is the Provision of Appeal under the POSH Act and POSH Rules? 

POSH Act, 2013

• Section 18 of POSH Act lays down the provision of appeal against the orders made under the POSH Act. 
• The following are the recommendations against which appeal can be filed under the POSH Act:

• The appeal shall be filed to the following as per the POSH Act: 
  • Appeal can be filed to the Court or tribunal in accordance with the service rules applicable to the said person. 
  • Where no such service rules exist the person aggrieved may prefer an appeal in such manner as may be prescribed. 
• Section 18 (2) lays down that the appeal under Section 18 (1) shall be filed within 90 days of the recommendations. 

POSH Rules, 2013 

• Rule 11 of POSH Rules, 2013 provides that the appeal may be filed to the appellate authority notified under Section 2 (a) of the Industrial Employment (Standing Orders) Act, 1946. 

What are the Landmark Judgments on Power of Appellate Authority ? 

• Income Tax Officer, Cannanore v. MK Mohammed Kunhi (1968): 
  • The Court was dealing with the powers of the Income Tax Appellate Tribunal under Section 254 and 255 of Income Tax Act, 1961 (IT Act). 
  • The Court held that at the relevant time there was no specific power available to the Income Tax Appellate Tribunal to grant stay against the demand of tax but the same can be read into the powers of deciding appeal itself. 
• Smt. Savitri v. Sri Govind Singh Rawat (1986): 
  • The Court allowed the consideration of interim order in an application filed under Section 125 of CrPC. 
  • The Court held that “Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment.”