One of the nuanced aspects that necessitates understanding within the Sexual Harassment of Women (Prevention, Prohibition, and Redressal) Act, 2013 (PoSH Act), is the intricate relationship between employer and employee. Over the years, Courts have extensively interpreted the term "employer" to align with the legislative intent of creating safe work environments for women. This blog explores these interpretations through two significant judgments.
Dr. Savitri Tripathi vs State of Chhattisgarh, Chhattisgarh High Court (2022)
In this case, the petitioner, a Senior Professor at JP Verma Arts College, filed a sexual harassment complaint against an Assistant Professor from another college. The accused had used obscene language with the petitioner during multiple visits to her campus. In 2014, she lodged a written complaint with her college's principal, which received no response. Despite a letter from the Additional Secretary to the Higher Education Department urging action, no steps were taken. The petitioner contended that her employer had not addressed the complaint or forwarded it to the police as per the Vishaka Guidelines.
A key question before the High Court was whether the actions of the respondent, employed in a different institution but appointed by the same employer (the Government of Chhattisgarh), constituted sexual harassment within the "workplace" as defined by the PoSH Act.
The Court considered the genesis and objective of the Act, the Vishaka Guidelines, and the Chhattisgarh Civil Service Rules governing both parties. In light of the definition of "employer" [Section 2(g)] and "employee" [Section 2(f)] under the PoSH Act, the Court clarified that the respondents—the Secretary and Director of the Higher Education Department and the Principal of the Institution—should be regarded as employers who had failed to discharge their obligations under the PoSH Act. Further, the complainant and the respondent should be treated as employees under the Act.
Due to the passage of significant time and the retirement of the respondent employer, the Court directed that the authorized individuals from the higher education department or the petitioner's college were to initiate proceedings for filing an FIR against the accused.
Dr Sohail Malik vs Union Of India & Anr., Delhi High Court (2023)
In this case, a government employee within the Food and Public Distribution Department of the Ministry of Consumer and Public Distribution, filed a sexual harassment complaint against an officer of the Indian Revenue Service. She filed her complaint with the Internal Committee in her department. However, this led to a jurisdictional challenge as the petitioner (respondent) and the complainant belonged to different departments. The accused (respondent) thereafter moved the Tribunal, which in turn rejected the application, prompting the respondent to file a Writ Petition in the Delhi High Court challenging the IC's jurisdiction to examine the complaint.
The central question before the High Court was whether a female employee in one department of the Government of India could seek redressal under the PoSH Act if sexually harassed by an employee from another department. The petitioner argued that the PoSH Act's relevant provisions suggested that the IC of one department could not conduct an inquiry under the Act against an employee from another department, as they were not under the disciplinary control of that department.
The High Court, while considering Supreme Court judgments, emphasized the importance of purposive construction when interpreting the PoSH Act to ensure its effectiveness as a social welfare legislation. Any interpretation that diluted or defeated the Act's purpose to establish a safe working environment for women had to be rejected.
After careful consideration of the objective of the PoSH Act, relevant definitions, provisions of inquiry (Section 11), and inquiry report (Section 13), the High Court rejected the contentions of the petitioner, agreeing to the Tribunal’s findings that there was nothing in the Act that would restrict its application only to cases where the respondent is the employee of the department where the complainant is working. The provision of Section 13 merely states that the IC shall provide a report of its findings to “the employer,” whereas a reading of the definition of employer, shows the sub-clauses are general in nature and do not in any manner define employer vis à vis the employee who complains of sexual harassment.
Similarly “workplace” as defined under the Act is not defined vis à vis the complainant-employee. There is therefore no embargo under the PoSH Act on the findings of the IC being forwarded to that employer who has disciplinary control over the alleged harasser. Pointing to the duty of the employer [Section 19(h)] under the Act, the Court reiterated that the Act provides for situations where the alleged harasser is not an employee.
Upholding the findings of the Tribunal, the Court held that there was absolutely nothing in the PoSH Act that limits its scope to cases where a woman employee is sexually harassed by another employee working in her own office and excepts its application where the harasser is employed elsewhere.
Parting Thoughts
These case studies underscore the need for workplaces that promote safety—a responsibility that rests with the employer. A broader interpretation, as established by several precedents, ensures the proper implementation of the PoSH law, aligning with its intended objectives.
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