POSH ACT COMPLAINT MECHANISM WORKS IN COORDINATION WITH CDA RULES

POSH Act complaint mechanism works in coordination with CDA Rules: Calcutta HC

This writ petition has been filed seeking a writ of mandamus to set aside the penalty order. The petitioner joined service as a Junior Executive (Law) under the Metal Scrap Trade Corporation (“MSTC Ltd.”). In the year 2014, the petitioner was holding the post of Manager in MSTC Ltd. and was posted in the head office in Kolkata.  A person who was serving as Officer on Special Duty (Law) in MSTC Ltd., and was also posted at the Head Office at Kolkata at the relevant point of time complained of sexual harassment against the petitioner.

Internal Complaints Committee (“ICC”) furnished its report which was made available to the petitioner only on March 11, 2015. Prior thereto, the petitioner was served with a copy of an order of punishment dated March 3, 2015, passed by the disciplinary authority. The disciplinary authority punished reduction to a lower grade of pay i.e. Deputy Manager (E-3). The petitioner preferred an appeal against an order of punishment on March 20, 2015. During the pendency of the said appeal, the petitioner challenged the findings and/or recommendations made by ICC by filing a writ petition. However, during the pendency of the said writ petition, the appellate authority passed an order on December 3, 2015, upholding the punishment.

CONTENTIONS OF PETITIONER

As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) the findings and report of the ICC is nothing but a mere preliminary investigation or inquiry leading to disciplinary action and the same cannot be treated to be a finding/report in an inquiry into the misconduct of the delinquent. Thus, according to the counsel of the petitioner the authorities failed to act according to the mandate of the POSH Act and the CDA Rules 1980 but mixed up the two inquiries as one cohesive process.

He further contended that the disciplinary authority acted in gross violation of the principles of natural justice by passing an unreasoned order of punishment without affording any opportunity to the petitioner to make a representation against the ICC report as it is not in dispute that the ICC report was forwarded to the petitioner after he was served with the order of punishment.

ARGUMENTS OF RESPONDENTS

The respondent’s counsel argued that the ICC report is binding upon the employer and the employer has no other option but to act upon the recommendation of the ICC. He contended that the petitioner did not pursue his challenge against the ICC report and the decision of a co-ordinate Bench of this court refuses to set aside the order. He referred to the decisions of the Hon’ble Supreme Court of India in the case of Medha Kotwal case and contended that the report of the ICC shall be treated as a finding/report in an inquiry into the misconduct of the delinquent. By referring to Rule 27A of the CDA Rules 1980, counsel contended that the service rules provide that in a case of complaint of sexual harassment, the complaint committee will be the inquiry committee for such purpose and the report of such the committee shall be deemed to be the inquiry report under the rules. He, thus, submitted that the ICC report cannot be treated to be a mere preliminary investigation of a report in a case of this nature.

COURT OBSERVATIONS

The Court considered an interesting question that has cropped up in this writ petition whether, in a case of a complaint of sexual harassment, the disciplinary authority has to initiate a fresh inquiry or can take disciplinary action by treating the ICC report to be the report of the Inquiry Authority.

  • After reading the provisions laid down in the POSH Act and the rules, the Court observed that upon a complaint being made, the copy of the complaint is to be supplied to the employee against whom such complaint is made. The employee gets an opportunity to file his reply to the complaint. The complainant as well as the respondent/employee gets an opportunity to adduce oral as well as documentary evidence in support of their respective contentions. Rules provide that the inquiry by ICC is to be made by following the principles of natural justice. ICC is also vested with the powers of the civil court in respect of certain matters regarding evidence of witnesses etc. An aggrieved party also has a right to file an appeal against the ICC Report. Thus, after reading the various provisions of the POSH Act and the rules framed thereunder, this Court is of the considered view that an inquiry conducted by the ICC is a full-fledged inquiry wherein the parties get ample opportunities to prove their contentions and finality is also attached to such inquiry. The POSH Act also mandates the employer to act on the recommendations of the ICC. Therefore, the inquiry report cannot be said to be merely a preliminary investigation report.
  • The order of punishment was passed by the Disciplinary authority merely on the basis of the ICC report.
  • A complaint of sexual harassment is inquired by the ICC as per the POSH Act, but disciplinary action is taken under the service rules. After reading the provisions of the POSH Act and the CDA Rules 1980, the Court is of the considered view that the CDA Rules, 1980 provide for connecting the two proceedings, one under the 2013 Act and the other under the CDA Rules by the ICC Report.
  •  The disciplinary action has to start by treating the ICC Report as the Inquiry Report under the CDA Rules 1980 and proceed per CDA Rules before inflicting punishment upon the delinquent. The order of punishment was passed merely based on ICC Report and without affording any opportunity of hearing to the writ petitioner. Thus, counsel of petitioner was right in submitting that, there has been a violation of the provision of CDA Rules 1980, as well as the principles of natural justice and also that the petitioner suffered prejudice as an order of punishment was passed.
  • The Division Bench after observing that the punishment imposed was not only disproportionate to the proven allegations but also does not express itself to be in the comity of rules prescribing the major penalties directed reconsideration of the issue of punishment. This Court is, therefore, of the considered view that there is a flaw in the decision-making process for inflicting punishment upon the petitioner, and interference is called for in the exercise of the power of Judicial Review.

Vaishali Jain, Advocate & Associate – POSH at Work

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