DR. SOHAIL MALIK versus UNION OF INDIA & ANR.

Summary

The Supreme Court held that the Internal Complaints Committee at the aggrieved woman's workplace, here a Central Government department, has jurisdiction under the POSH Act to inquire into her complaint against an employee of a different department. The words 'where the respondent is an employee' in Section 11(1) only direct which service rules apply and do not limit jurisdiction. Under Section 13 and the DoPT OM on such inquiries, that ICC conducts the fact-finding inquiry and sends its report to the respondent's employer, whose own ICC acts as inquiring authority in any later disciplinary proceedings.

Issues

1. Whether an ICC constituted in one Central Government department can entertain a POSH Act complaint against an employee of another department.
2. Whether the words 'where the respondent is an employee' in Section 11 of the POSH Act require ICC proceedings to be held at the respondent's workplace rather than the aggrieved woman's.
3. How the respondent's department is to act under Section 13 on findings of the ICC at the aggrieved woman's workplace.
4. Whether the proceedings before the ICC at the aggrieved woman's workplace caused the appellant any prejudice.

Provisions considered

• Section 11(1), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013'Where' was read as a conditional conjunction meaning 'in case' or 'if', not a place. The sub-section sets out three contingencies (respondent an employee with service rules, no service rules, domestic worker) and is a procedural trigger for applying the respondent's service rules, not a jurisdictional limit. (¶¶ 22, 36, 38, 41, 42, 43, 44, 45, 46)
• Sections 2(f), 2(m) and 2(o), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013The definitions of 'employee', 'respondent' ('a person' against whom a complaint is made) and the wide 'workplace' (including any place visited in the course of employment under Section 2(o)(v)) do not require the respondent to work at the aggrieved woman's workplace. (¶¶ 14, 16, 17, 47, 48, 49, 56)
• Section 13, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013The ICC sends its report and recommendations to the 'employer', which must act within sixty days. Nothing requires the employer of the aggrieved woman and of the respondent to be the same, so the respondent's employer can act on findings of another department's ICC. (¶¶ 23, 59, 66, 67)
• Section 19(f) and (h), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013Clause (h), on facilitating criminal action, is an added duty of the employer and not the only remedy against an outsider. Clause (f) obliges the respondent's employer to provide information to and cooperate with the ICC at the aggrieved woman's workplace. (¶¶ 24, 50, 70, 72)
• Rule 14(2), proviso, Central Civil Services (Classification, Control and Appeal) Rules, 1965The Complaints Committee is deemed the inquiring authority in disciplinary proceedings for sexual harassment complaints. Read with the DoPT OM on such inquiries, this produces a two-stage process: a fact-finding inquiry by the ICC, then a formal inquiry after a chargesheet by the disciplinary authority. (¶¶ 60, 61, 62, 63, 64, 65, 66, 68)

Held

• In Section 11(1) of the POSH Act 'where' denotes a situation, not a place, and the sub-section must be read as a whole. The phrase 'where the respondent is an employee' only requires the ICC to inquire in accordance with the respondent's service rules (or as prescribed if none exist); it does not confine jurisdiction to the ICC at the respondent's workplace. (¶¶ 41, 42, 43, 44, 45, 46)
• The definitions of 'respondent', 'employee' and 'workplace' are neutral and wide. Any person against whom the aggrieved woman complains to the ICC at her workplace is a 'respondent', and need not work at the same workplace. (¶¶ 47, 48, 49)
• Section 19(h), which obliges the employer to help initiate criminal action, does not exclude POSH Act proceedings where the alleged harasser belongs to a different workplace. (¶ 50)
• The POSH Act is social welfare legislation. Requiring the aggrieved woman to approach the ICC at the respondent's workplace would create procedural and psychological barriers and defeat the purpose of the expanded definition of workplace in Section 2(o)(v), so a narrow reading must be rejected. (¶¶ 51, 53, 54, 55, 56, 57, 72)
• The power to inquire into facts is distinct from the power to act on the findings. The ICC at the aggrieved woman's workplace conducts the preliminary or fact-finding inquiry and sends its report to the respondent's employer under Section 13. If that employer decides disciplinary proceedings are warranted and issues a chargesheet, the ICC at the respondent's workplace acts as inquiring authority under the CCS (CCA) Rules, with reference to the fact-finding report. (¶¶ 59, 65, 66, 67, 68)
• No prejudice was shown: the respondent's department had supplied the information sought by the ICC. Balancing the aggrieved woman's remedy with the respondent's right to be heard, the appellant may raise all contentions in any disciplinary proceedings except the jurisdiction or validity of the ICC proceedings at the aggrieved woman's workplace. (¶¶ 69, 70, 71)

Result

Appeal dismissed; the report of the ICC at the aggrieved woman's workplace to be sent forthwith to the appellant's department for further action under the POSH Act following the applicable service rules.