In the case of Nagaram Balakrishna vs. State of A.P. and Ors., the Andhra Pradesh High Court on 23rd March, 2021 set aside the inquiry conducted by the Special committee stating that husband of the Aggrieved had no locus standi to lodge such complaint.
Facts of the Case are that Nagaram Balakrishna (“Petitioner”) worked as Enforcement Superintendent in Special Enforcement Bureau. During an investigation, Petitioner found a salesman indulging in transportation of non-paid duty liquor. Therefore, Petitioner ceased his cell phone and handed it over to his colleague, Sub-Inspector of Police (“Aggrieved”), to get the screen shots and copy the content of the cell phone to a compact disc.
Husband of Aggrieved filed a complaint of sexual harassment stating that the content of the cell phone was objectionable and it amounted to sexual harassment. Based on this, Petitioner was relieved from duties on the same day. The commissioner also constituted a three-member committee, which conducted an inquiry and submitted a report. Petitioner was suspended thereafter. Accordingly, Petitioner filed this Writ Petition before Andhra Pradesh High Court. He challenged the suspension on several grounds:
1. On handing over cell phone with sexual content:
The Petitioner argued that the cell phone handed over to the Aggrieved is a part of investigation and not otherwise. Respondent argued that despite knowing that the cell phone contains sexually explicit material, asking the Aggrieved to check and copy it amounts to sexual harassment of women at workplace.
Court held that the cell phone and its content is a part of investigation done by the Petitioner being a police officer while discharging duties. Merely because the Petitioner asked the Aggrieved to discharge her duties as part of investigation, would not prima facie amount to subjecting her to sexual harassment at workplace.
Please note, Court also said that this is the decision relevant only in the context and facts and circumstances of the present case and must not be treated as a precedent.
2. On Constitution of IC:
Petitioner argued that when two committees are officially formed and existing, formation of another Special Committee for the purpose of this Petitioner is bad in law. Further, the Petitioner also put forth his grievance that all the members in Special Committee are equal to his cadre and contended that, to conduct an inquiry, the officers in the Committee should be of higher cadre than the Petitioner. He further stated that, as required under Section 4 of the POSH Law, one member from amongst NGO or association committed to the cause of women or a person familiar with the issues related to sexual harassment should be nominated, which was not the case here.
Respondents argued that the Special Enforcement Bureau (SEB) is newly established wing under General Administration Department. As SEB is new department, the Internal Committee is yet to be constituted. Meanwhile to redress the grievance of the complainant (on behalf of Aggrieved), a Preliminary Enquiry Team was constituted to ensure justice. Also, there are no illegalities or irregularities in the suspension order.
The Court held that according to Sections 4 to 7, in the absence of Internal Committee, a Local Committee is competent to act on a complaint of sexual harassment at workplace. But here, for different reasons known to Respondents, a Special Committee was constituted without referring the complaint of the Aggrieved to the Local Committee. Also, if it is a Committee constituted to inquire into the complaints of sexual harassments at workplace, then the Committee, necessarily must consist of officers of higher rank than the person who is facing the inquiry for the alleged act of sexual harassment.
- Section 6 states that “Every District Officer shall constitute in the district concerned, a committee to be known as the Local Committee to receive complaints of sexual harassment from establishments where the Internal Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.” In this case, the Court has not clarified what the number of employees at SEB was. Hence, it is unclear whether all complaints in the absence of IC must go to LC or complaints only in cases where there is no IC due to there being less than 10 employees must go to LC.
- With respect to seniority of IC members, there appears to be a difference in how courts are deciding and facts & circumstances of each case may have to be seen. Few decisions have earlier held that IC members need not be senior to the Respondent. Department of Personnel & Training of the Ministry of Personnel, Public Grievances and Pensions (“DoPT”), had also published the Office Memorandum F. No. 11013/2/2014-Estt.A-III, dated 9th September, 2016 stating that there is no bar either in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 or under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to the Chairperson of the IC being junior to the officer against whom allegations of sexual harassment have been made. Click here to read.
3. Filing of Complaint by Husband
Petitioner argued that Complaint was made by the husband of the Aggrieved and he is incompetent to do so.
Court held that husband of the Aggrieved lodged a complaint and it is not in compliance with Section 9 of the POSH Law. It said that taking cognizance of such complaint made by an incompetent person when the Aggrieved is able to make such complaint is a serious illegality and contrary to the provisions of the POSH Law. Court further said that on this ground, the inquiry conducted by the Special Committee is liable to be set-aside, as husband of Aggrieved has no locus standi to lodge such complaint.
4. Suspension of Petitioner
Petitioner argued that the order placing Petitioner under suspension is not in accordance with the provisions of the POSH Law. Respondent argued that the action of placing Petitioner under suspension was not a unilateral decision, since a preliminary inquiry to find out the genuineness of the allegations made was done and based on the inquiry report, such decision was taken.
Court held that the procedure followed by the Respondents while passing impugned order of suspension placing this Petitioner under suspension is totally contrary to the provisions of the POSH Law. Thus, the impugned order is liable to be set-aside.