Qualifications of members of the ICC

“Qualifications of members of the ICC including the external member are to be considered on a case-to-case basis”- Calcutta HC

The HC also emphasized that it is necessary for the adjudicatory authority to explore the antecedents and backdrop of such usage of certain words and phrases that are deemed derogatory.

Background: In Sukalyan Haldar vs. State of West Bengal and Ors, decided on 8th September 2023 the honorary Secretary of the Managing Committee in the St. Stephen’s School functioning within the Diocese of Barrackpore under the Church of North India filed a petition against the order of the Local Complaints Committee (LCC) which recommended that the Petitioner be removed from his post with immediate effect and should not be a member of the Executive Committee of the School in the future.

Issue 1: Whether the petitioner falls within the ambit of an “employer” under Section 2(g) of the POSH Act?

Petitioner’s Arguments: S. 2(g) defines an employer in clause (i) in relation to any institution, the head of that institution or such other officer as the appropriate government or the local authority, as the case may be, may by order specify in this behalf. Further, S. 2(g)(ii) provides any person responsible for management, supervision and control of any workplace not covered in clause (i) is an employer.

S. 6(1) states that the LCC shall receive complaints of sexual harassment where ICC has not been constituted due to having less than 10 workers or if the complaint is against the employer himself.

The counsel states that Bishop is the head, thus, the employer as per the hierarchy of the Diocese. Under the Bishop, is the Vice President under whom the Managing Committee functions of which the petitioner is Secretary. Hence, the petitioner cannot be said to be the ‘employer’ for invoking S. 6 of the Act.

Respondent’s Arguments: The counsel submitted that S. 2(g)(ii) applies in this case, and not clause (i). Thus, the employer is any person responsible for management, supervision and control of the workplace and the explanation provides that it includes the person responsible for formulation and administration of policies for the organization. Thus, the petitioner was an employer for all practical purposes. The transfer of the respondent is also in the hands of the petitioner, thus the LCC has exclusive jurisdiction.

Judgment: The ‘Diocese’ is a territorial division based on ecclesiastical lines under the Church of North India. The concept of ‘Diocese’ has nothing to do with the idea of a workplace. S. 2(o) defines various institutions as workplaces that include ‘any private sector institution carrying one educational services’, i.e., the concerned school, not the entire Diocese. In this context, the secretary of the Managing Committee of the school can undoubtedly be classified as an “employer” under S. 2(o) of the Act as he is responsible for the management, supervision and control. Further, he also has the power to change the designation of the employees and is one of the signatories in the contractual appointment of the victim.

Issue 2: Whether the LCC has the jurisdiction to deal with the allegations made against the petitioner?

Petitioner’s Arguments: The counsel submitted that the LCC has acted without jurisdiction as the POSH Act stated that the ICC deals with allegations of such nature under S. 4 of the Act.

Relying on S. 9 of the Act, the counsel argued that the LCC assumed jurisdiction on the premise that there was no proper ICC constituted, however, there is nothing in the Act that confers jurisdiction on the LCC to decide complaints of sexual harassment if the ICC is in place.

Respondent’s Arguments: The counsel for the alleged victim stated that irrespective of the existence of the ICC, proper or improper, the LCC rightly assumed the jurisdiction as the allegation was against the employer itself. Under S. 6(1), if the complaint is against the employer, it is the LCC and not the ICC which has to decide.

Judgment: The scope of functioning of the ICC and LCC, respectively, have been clearly delineated in Sections 4 and 6 of the Act.

Under S. 6(1) of the Act, LCC shall receive complaints of sexual harassment in two cases – where the ICC has not been constituted due to having less than 10 workers or if the complaint is against the employer itself. The petitioner in this case is an employer thus, the LCC rightly has the jurisdiction under S. 6.

Issue 3: Whether the writ court’s jurisdiction is barred under Section 18 of the POSH Act?

Petitioner’s Arguments: Under Section 13 of the Act, the ICC or LCC shall recommend to the employer or District Officer to take action if the allegations against the respondent are proved in accordance with Service Rules or in a manner as may be ‘prescribed’. S. 29 of the Act confers power on the appropriate government to make rules which within S. 2(b) is the Central Government the Union Territory Administration or the State Government depending on who provides the funds to finance the workplace. And in any case, not falling within this and falling within its territory, the State Government is the appropriate government.

The only Rules framed under S. 29 are the Rules of 2013. Rule 9 states contemplates termination of the respondent as one of the penalties, however, these rules are framed by the Central Government and the appropriate government, in this case, is the State Government, thus the said Rules are not applicable in the present case and so is the punishment of termination.

Judgment: S. 18 provides for appeal against recommendations made under S. 13 of the Act. Since the State Government has not made any Rules, the 2013 Rules shall prevail within the definition of “prescribed” under S. 2(k) of the 2013 Act since those are the rules made “under the Act”. The distinction made by the petitioner regarding ‘appropriate government’ is not strictly applicable to S. 2(k) as the provision does not require that the rules are to be made by the ‘appropriate government’, but merely provides that the rules are to be made under the Act. Hence, the requirement of law is fulfilled by the appellate forum as stipulated in Rule 13 of the 2013 Act.

Yet despite the availability of an alternative remedy by way of an appeal, the petitioner challenged the decision of the LCC on various jurisdiction issues which goes to the root of the assailed exercise hence it cannot be said that writ court’s jurisdiction is barred.

Issue 4: Whether the use of phrase “faltu meye” by the petitioner falls within the ambit of sexual harassment defined under S. 2(n)?

Petitioner’s Arguments: The counsel argued that the expression ‘faltu meye’ has been construed to be ‘cheap woman’ and as a lewd remark, whereas under the Bengali dictionary ‘faltu’ is defined as extra, spare, excessive, much, unnecessary, useless. Hence, there is no lewd context to the same.

Respondent’s Arguments: The counsel stated that the enquiry report relief on long antecedent of incidents preceding the actual verbal abuse to show that each and every allegation made was correct and the remarks were indeed in a lewd context.

Judgment: The act of sexual harassment alleged comes within the broad purview of S. 2(n)(iii) that is making sexually colored remarks. However, whether the remark was lewd or not has to be determined totally in the context in which it was made, since the expression ‘faltu meye’ can be used in various contexts. The backdrop of the usage would lend color and texture to the comment, thus making it necessary for the adjudicatory authority to explore the antecedents and backdrop of such usage. The LCC has not discussed the same and has also failed to consider the entire gamut of the complaints made in detail by the victim.

Issue 5: Whether the inquiry of the LCC was violative of the principles of natural justice?

Petitioner’s Arguments: it was argued that the petitioner was not given access to the documents relied on by the LCC and its findings were vitiated by the violation of principles of natural justice. Further, the school was never given any opportunity of hearing.

Judgment: The LCC failed to take into consideration the entire gamut of the complaints made in detail by the victim against the present petitioner. Further an opportunity ought to have been given to the parties to peruse the documents, if any, relied on by the LCC in passing the impugned order.

There are ingredients of perversity and lack of opportunity for an informed hearing to the parties, particularly the petitioner, in the decision of the LCC, vitiating principles of natural justice.

Issue 6: Whether the LCC can adjudicate if the constitution of the ICC was improper?

Judgment: Under S. 26 of the Act penalty can be imposed for non-compliance, however, the Act does not confer jurisdiction on the LCC to adjudicate upon the propriety and legality of the constitution of the ICC and/or pass directions on the institution to take steps regarding the constitution of ICC.

Moreover, the qualifications of members of the ICC and the requirement of neutral persons, not employed in the institution, are to be considered on a case-to-case basis. The mere fact that the fourth member is an employee does not vitiate his credentials to be a member of the ICC if he is otherwise eligible for the post. The statute doesn’t stipulate that the members of the ICC cannot be employees of the institution as well.

Final Order: The Court set aside the recommendation of the LCC and directed to rehear the complaint against the petitioner in accordance with law, come to a reasoned decision and communicate the same in writing to the parties within a week. The LCC shall give adequate opportunity of hearing to the parties and shall serve prior copies of all documents which are relied on by the parties to their respective opponents before hearing the matter. The entire exercise shall be concluded by the LCC within two months from date. Till the complaint is so decided, the petitioner will be entitled to pursue his profession in the institution-in-question however he shall not influence or seek to influence the fresh adjudication or tamper with witnesses or documents.

– By Lakshita Bhati

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