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Union of India Citation v Banani Chattopadhyay

Union of India Citation v Banani Chattopadhyay - (2022) 1 HCC (Cal) 351 Court – High Court of Calcutta.

Facts of the Case –

The petitioner, Banani Chattopadhyay, was a Deputy Manager at Hindustan Cables Ltd. (HCL). She opted for voluntary retirement on 31.01.2017 following a decision to close down the company. After retirement, she was engaged on a temporary basis as a consultant and later as an advisor. She was released from her temporary engagement on 30.04.2018. on 09.05.2018, she lodged a complaint of sexual harassment against Respondent 9 (allegedly the head of HCL), claiming the incidents began in the last quarter of 2016. An Internal Complaints Committee was constituted to investigate her complaint. The ICC submitted its report on 19.06.2018, concluding that the allegations were not proved. The petitioner filed a write petition challenging the ICC’s report and constitution.

Legal Issues:-

1. Whether the Internal Complaints Committee had jurisdiction to inquire into the complaint, or if it should have been referred to the Local Committee.

2. Whether the Internal Complaints Committee was properly constituted as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 .

Caselaw in focus

3. Whether the principles of natural justice were followed in the inquiry process.

4. Whether the court can issue a writ of mandamus to reinstate the petitioner to her temporary advisory position.

Plaintiff’s Arguments:-

1. The petitioner argued that Respondent 9, being the head of HCL, was the “employer” according to the Act and therefore only the Local Committee had jurisdiction to inquire into the complaint.

2. The petitioner claimed that the Internal Complaints Committee was not constituted in accordance with Section 4(2) of the Act.

3. The petitioner alleged that the IC members were biased and not impartial due to Respondent 9’s high position in the company.

4. The petitioner argued that the principles of natural justice were violated as the petitioner did not get sufficient opportunity to prove her allegations.

Defendant’s Arguments:-

1. The respondent claimed that the writ petition had become infructuous as Respondent 9 had since retired.

2. The respondent argued that the writ petition in not maintainable, as an appeal under Section 18 of the Act lies against the recommendations of the IC.

Caselaw in focus

3. The respondent argued that HCL is a public sector enterprise managed by the Board of Directors so Respondent 9 cannot be considered the “employer” under the Act.

4. The respondent claimed that the IC was properly constituted and conducted the inquiry fairly.

Judgement Held –

The court dismissed the writ petition and held that the Board of Directors, not Respondent 9, was the “employer” under the Act. The court had held that the ICC was properly constituted and had the jurisdiction to inquire into the complaint. Further the court held that there was no violation of principles of natural justice as the petitioner was given sufficient opportunities to present her case. Lastly, the court held that it cannot issue a writ of mandamus to reinstate the petitioner to her temporary advisory position.

Legal Principles Established:-

1. In a public sector enterprise managed by a Board of Directors, the Board is considered the “employer” under the SHWW Act, 2013.

2. The ICC has jurisdiction to inquire into sexual harassment complaints against high ranking officials who were not considered the “employer” under the Act.

3. Section 4(2) of the Act, which provides the composition of the ICC, does not required the members to be of a rank higher than the respondent in the complaint.

4. A writ of mandamus cannot be issued to reinstate an employee to a temporary position that was contractual in nature.

Sanjeev Kumar v. State of Uttar Pradesh: Enforcing Strict Compliance with the POSH Act.

In a significant ruling that reinforced the importance of implementing the Prevention of Sexual Harassment (POSH) Act in its true spirit, the Allahabad High Court delivered a decisive judgment in the case of Sanjeev Kumar v. State of Uttar Pradesh (2021). This judgment emphasized that the non-compliance or delay in constituting an Internal Complaints Committee (ICC) by an organization is a serious violation of the Act and infringes upon the fundamental rights of employees.

The Crux of the Case

The case arose from a writ petition filed by Sanjeev Kumar, an employee of the Uttar Pradesh Power Corporation Limited (UPPCL), who alleged that despite repeated requests, the organization had failed to constitute an ICC as mandated by the POSH Act. Kumar contended that this non-compliance not only violated the provisions of the Act but also infringed upon the fundamental rights of employees, including their right to a safe and secure work environment.

The Allahabad High Court's Ruling

In its judgment, the Allahabad High Court took a firm stance, emphasizing the importance of strict compliance with the POSH Act and the constitution of an ICC by organizations. The court made several key observations and issued directives to ensure effective implementation of the Act's provisions.

Key Observations and Directives:

Violation of Fundamental Rights: The court underscored that the failure to constitute an ICC amounts to a violation of the fundamental rights of employees, including their right to life, dignity, and a safe and secure work environment, as enshrined in Article 21 of the Indian Constitution.

Strict Compliance: The court emphasized that the POSH Act is not merely a set of guidelines but a comprehensive legislation that must be implemented in letter and spirit. Non-compliance or delay in constituting an ICC is a serious violation of the Act and cannot be condoned.

Deterring Non-Compliance: To deter organizations from neglecting their obligations under the POSH Act, the court directed that appropriate disciplinary action should be taken against officials responsible for the delay or non-compliance in constituting an ICC.

Timely Constitution of ICCs: The court directed all government departments, public sector undertakings, and other organizations in Uttar Pradesh to constitute ICCs within a specified timeframe, failing which disciplinary action would be initiated against the responsible officials.

Monitoring and Compliance: The court further directed the Chief Secretary of Uttar Pradesh to monitor the compliance of all organizations with the POSH Act and submit periodic reports to the court, ensuring effective implementation of the Act's provisions.

The Broader Impact

The Sanjeev Kumar v. State of Uttar Pradesh judgment has far-reaching implications for the effective implementation of the POSH Act across various sectors and organizations in Uttar Pradesh and beyond. It sends a strong message that non-compliance with the Act's provisions, particularly the constitution of an ICC, will not be tolerated and will be considered a violation of the fundamental rights of employees.

By emphasizing strict compliance and directing disciplinary action against non-compliant officials, the Allahabad High Court has reinforced the principles of accountability and deterrence, ensuring that organizations take their obligations under the POSH Act seriously.

This judgment serves as a reminder that the fight against sexual harassment in the workplace is not merely a legal obligation but a moral imperative, and organizations must take proactive measures to create a safe and secure environment for their employees.

As India continues to strive towards creating safe and inclusive workplaces, this landmark ruling sets a precedent for ensuring that the principles enshrined in the POSH Act are upheld and implemented without compromise, promoting a work environment where every individual can thrive and contribute to the nation's progress without fear of harassment or discrimination.

What is Third Party Sexual Harassment?

UNDERSTANDING JURISDICTION RELATED TO THIRD PARTY SEXUAL HARASSMENT. WHEN DOES THE IC GET INVOLVED?

Introduction - What is Third Party Sexual Harassment?

Sexual harassment in connection with the workplace, isn't only limited to the workplace (as a premises) or one's colleagues (as the respondent). It extends to third party workplaces, and third party individuals like consultants, independent contractors, clients, or other non-employees associated with the workplace, irrespective of the premises where the sexual harassment may have occurred.

Employers need to provide employees with a safe working environment where their safety and security is prioritized, especially if third parties are involved.

IC's Jurisdiction and When It Can Refuse

Under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), women can file complaints on acts that took place at the workplace even against third parties, irrespective of whether they work at their place of employment.

In line with the Posh Act, the employer is responsible for taking necessary steps, and reasonably assisting the aggrieved and affected parties, in the event of occurrence of third-party sexual harassment.

In such a case, the onus is on the aggrieved to decide whether the matter should be investigated by the organization's Internal Committee (IC) or whether it should be referred to the police. The aggrieved also has a choice to pursue both parallelly. Therefore, the IC does have jurisdiction to preside over matters at the workplace, and at workplace-sponsored events.

If the third party is from a different organization, the IC may forward the complaint to the IC of the respondent's organization or do a joint investigation.

Training Internal Committee on Understanding Jurisdiction & Compliance with PoSH Policy

Sexual harassment, especially when perpetrated by a third party, may arise anywhere and in army situation.

The IC of each organization need to be trained to deliberate not just on matters which clearly fall under the purview of their jurisdiction, but also on how to handle matters where there may be overlapping jurisdiction.

Additionally, the Internal Committee should also know when to refer the aggrieved to the Local Committee/ Local Complaints Committee (LC/LCC). Local committees are formed under the jurisdiction of the District Officer in every district in a state. Their jurisdiction extends to organizations that employ less than 10 employees and cases where the sexual harassment complaint is directly against the employer.

It becomes extremely important for Internal Committees to fully understand and pre-empt the extent of such situations and ensure people are aware of, and comply with, the company's internal POSH policy. Awareness measures are the most effective tools in ensuring safe and healthy work culture.

Poshadvo guides employees to understand third-party sexual harassment and provides IC members continuous training. This allows employees and members to gain a wider perspective on how to deal with cases that fall under the ambit of third-party sexual harassment, and whether or not a matter falls under their jurisdiction.

Reach out to us on contact@poshadvo.com for the answer key or call us on +91-9958484845

Note: This article is not a substitute for legal advice or consulting with a lawyer, who will be in a better position to advise you with respect to the facts and circumstances of your case, but merely a tool to help the reader understand better about laws relating to prevention of sexual harassment in the workplace.