"Anxiety To Be Fair To Victims Of Sexual Harassment Has Ended Up Causing Them Greater Harm"- SC While Setting Aside Order Dismissing Lecturer From Service

A Supreme Court Bench of Justice AS Bopanna and Justice Hima Kohli has set aside an order which dismissed a lecturer against whom as many as 17 students had levied serious allegations of sexual harassment from service. The Court held, "In this case, the anxiety of the Committee of being fair to the victims of sexual harassment, has ended up causing them greater harm."

In that context, the Court observed "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".

The Court also considered that it was disquieting that there are serious lapses in the enforcement of the POSH Act even after such a long passage of time. In that context, the Court noted that of 30 national sports federations, 16 did not have an ICC, and where the ICC were in place, they did not have the stipulated number of members or lacked the mandatory external member. In furtherance, it was observed that "This is indeed a sorry state of affairs and reflects poorly on all the State functionaries, public authorities, private undertakings, organizations and institutions that are duty bound to implement the PoSH Act in letter and spirit. Being a victim of such a deplorable act not only dents the selfesteem of a woman, it also takes a toll on her emotional, mental and physical health. It is often seen that when women face sexual harassment at the workplace, they are reluctant to report such misconduct. Many of them even drop out from their job. One of the reasons for this reluctance to report is that there is an uncertainty about who to approach under the Act for redressal of their grievance. Another is the lack of confidence in the process and its outcome. This social malady needs urgent amelioration through robust and efficient implementation of the Act".

Senior Counsel Bishwajeet Bhattacharya appeared for the appellant, while Counsel Ruchira Gupta appeared for the respondents.

In this case, the Apex Court was hearing an appeal against a Bombay High Court judgment that had dismissed the appellant from services and future employment by accepting the report of the Standing Committee, which was constituted under the POSH Act.

The Apex Court came to the conclusion that there were glaring defects and procedural lapses in the inquiry proceedings. In that context, the Court observed that "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".

In light of the same, it was held that the appellant could not be faulted for questioning the process and its outcome. The Court did note that the respondents had received as many as 17 complaints from students levelling serious allegations of sexual harassment against the appellant but also took the view that it was not 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 the imposition of major penalty proceedings.

In furtherance, it was observed that "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".

Consequently, the Court took the considered view that the proceedings conducted by the Committee fell short of the "as far as practicable" norm prescribed in the relevant Rules. Therefore, the decision to terminate the services of the appellant was set aside.

The Court also issued an epilogue, wherein it observed that however salutary the POSH enactment may be, it will never succeed in providing the dignity and respect that women deserve at the workplace unless there is strict adherence to the enforcement regime and a proactive approach by all the State and non-State actors. In light of the same, the Apex Court deemed it appropriate to issue the following directions:

(i) The Union of India, all State Governments and Union Territories are directed to undertake a timebound 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.

Parties were left to bear their own costs.

Cause Title: Aureliano Fernandes v State of Goa and Others

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