Proceedings Beyond 90 Days in POSH Act

Continuance of inquiry beyond 90 days as required by Section 11(4) POSH Act does not vitiate the proceedings: Delhi High Court

Case Details:

CA Nitesh Parashar v. Institute of Chartered Accountants of India ICAI & Ors., W.P.(C) 88/2023

Brief Background:

The Petitioner, a qualified Chartered Accountant and elected Vice Chairman of NIRC Institute of Chartered Accountants of India, Faridabad branch had received a notice on 23rd December 2022 from the Internal Complaints Committee (IC) of ICAI constituted as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) calling him to appear in person before the IC on 6th January 2023 in relation to an inquiry being conducted with respect to a sexual harassment complaint filed by Respondent No. 3 (henceforth “Complainant”).

Claims of the Petitioner:

The Petitioner filed a writ petition before the Delhi High Court seeking appropriate orders for quashing the notice seeking his appearance for POSH inquiry, quashing of the complaints filed by Complainant on two occasions via email dated 30th November 2022 and 16th November 2022. Additionally, he prayed for appropriate orders and imposition of exemplary costs against the Respondents for harassing and maligning his reputation.

Contentions of the Petitioner:

The Petitioner contended that a complaint was filed under the POSH Act on 24th March 2022 and the Complainant filed an affidavit to the Internal Complaints Committee. That no action has been taken despite a lapse of more than 60 days. The Petitioner argued that no act of sexual harassment is alleged in the complaint dated 24th March 2022 and the Petitioner has not been named. Further, it is alleged that the Complainant made another complaint with the same instances on 3rd June 2022 before the Chairman of the Disciplinary Committee. In addition, Complainant filed an affidavit for condonation of delay to excuse the delay of the time barred complaint. The Petitioner submits that the said delay has been condoned and a notice for hearing was also received by him.

The main contention of the Petitioner is that an official second complaint filed on 12th October 2022 is founded on the same subject as the one dated 3rd June 2022 and two proceedings related to the same cause of action is not permissible in law. In addition, referring to Section 11(4) of the POSH Act, he alleged that the inquiry has to be completed within 90 days from date of complaint i.e., 3rd June 2022 which have elapsed in the present case thus, the entire proceedings are vitiated.

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Contentions of the Respondents:

Counsels for Respondents 1, 2 and 4 submitted that the hearing on 23rd September 2022 was merely a preliminary hearing and is not a separate complaint. Counsel for Complainant clarified that earlier complaint was sent through email on 3rd June 2022 as that was the only medium she knew for filing the complaint. When informed that 6 copies of the complaint had to be submitted as per the POSH Act, hard copies of the same complaint were submitted which the Petitioner received on 12th October 2022. The Complainant contends that there is only one complaint and one inquiry which is in process.

Court’s observations:

After considering the contentions of the parties, the Court noticed that the contents of the complaint dated 3rd June 2022 and written complaint dated 12th October 2022 are identical and related to the same incident. The Court accepted the contention that the inquiry initiated by the ICC with respect to complaint dated 3rd June 2022 and the hearing held on 23rd September 2022 are part of the same inquiry and no question of two separate inquiries arises in the present case.

Further, the Court outrightly rejected the Petitioner’s contention that since the inquiry was not concluded within 90 days, it will be vitiated. The Court observed:

“I am prima facie of the view that the complaint of sexual harassment and the inquiry proceeding emanating therefrom cannot be quashed merely for the reasons that the internal complaints committee failed to complete the inquiry within the time frame given in Section 11(4) of the Act. Needless to say, that such complaints containing allegations of sexual harassment deserves to be treated with a certain amount of seriousness and responsibility and accordingly, the same have to be inquired into and taken to their logical conclusion for it is both in the interest of the complainant as well as the person against whom the allegations of sexual harassment have been levelled.”

While citing the decision of the Tripura High Court in Vinay Kumar Rai Vs. The Union of India and Ors., W.P.(C) 596/2019, the Court observed that as per principles of statutory interpretation, if a provision containing a time limit is not coupled with any penal or adverse consequences in completing the task then such task under the statute is not considered mandatory. While it is important that the complaint is to be treated with utmost seriousness and completed as soon as possible, however, this time limit under Section 11 (4) of the POSH Act cannot be viewed as a terminal point beyond which an inquiry cannot continue.

Decision of the Court: The application for interim reliefs by the Petitioner was dismissed as no prima facie case was made out.

-By Tusharika Vig

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