Introduction: In Aureliano Fernandes vs. State of Goa and Ors. (MANU/SC/0572/2023) Civil Appeal No. 2482 of 2014, decided on May 12, 2023, the Appellant had challenged a judgment dated 15th March 2023, of the High Court of Judicature at Bombay Bench, at Goa, which dismissed a writ petition against the order passed by the Executive Council of Goa University (Disciplinary Authority) accepting the Report of the Standing Committee for Prevention of Sexual Harassment at Work Place and imposing upon him, penalty of dismissal from services and disqualification from future employment.
Facts: The Internal Complaints Committee of Goa University (henceforth ‘IC’) initiated an inquiry against the Appellant after receiving multiple complaints from female students alleging sexual harassment. The IC passed an ex-parte order due to absence of the Appellant on multiple occasions and held him guilty for misconduct and consequently recommended termination of his services. The University ordered the same and also disqualified him from future employment at the University.
The Appellant challenged this order before the Bombay High Court by writ petition. The Court observed that the IC had granted the Appellant ample opportunities, but he failed to appear and thus, the IC cannot be blamed for proceedings ex-parte. The question of improper constitution of the IC was rejected on ground of being meritless. The contention that the inquiry done with undue haste and without giving a fair and reasonable opportunity to the Appellant to defend himself was also rejected. The Court dismissed the petition holding the principles of natural justice and service rules were not breached. Aggrieved by this, the Appellant approached the Supreme Court.
Appellant’s Arguments: The counsel submitted that the principles of natural justice were grossly violated as the Appellant was deprived of a reasonable opportunity of a fair trial, before passing the order of dismissal from service thereby causing him serious prejudice.
He relied on Article 311(2) of the Indian Constitution and CCS Rules, which provides that dismissal, removal or reduction in ranks of persons employed in civil capacities under the Union or State can only be done after an inquiry where the person is informed of the charges against him and given reasonable opportunity of being heard, to state that there had to be a proper inquiry before the Appellant could be dismissed or removed from his service.
Respondent’s Arguments: The counsel argued that the Appellant never raised a question to the competence or jurisdiction of the committee to conduct the inquiry and the procedure adopted by it.
The Appellant was given at least three opportunities to submit his reply and 18 hearings were conducted, but he did not participate in the proceedings on several dates. Only after which the committee proceeded ex-parte against him and submitted the report.
The counsel highlighted that the CSS Rules require the inquiry to be ‘as far as practicable’ thus, vesting the discretion with the IC to not strictly follow the entire procedure. Further, it was submitted that principles of justice are not an inflexible doctrine and the requirements of the same in this case were satisfied.
Judgment: The Court held that the High Court’s power of judicial review was limited to the cases where the findings of the departmental proceedings were faulted by procedural illegalities or irregularities that may have vitiated the process by which the decision was arrived.
It highlighted that ‘as far as practicable’ meant that the Committee was not bound to strictly follow a step-by-step procedure for inquiry and the IC followed all required steps as per the CCS (CCA) Rules and mere non-framing of article of charge cannot be treated as fatal.
However, the Court observed that normally the process takes about 6 months however, this was completed within only 39 days. The inquiry was completed in a ‘tearing hurry’ and the Appellant was not given a reasonable time to effectively participate in the proceedings even though several dates were missed by the Appellant on medical grounds.
The Court observed that the principles of natural justice included audi alteram partem, i.e., a person affected by a judicial, quasi-judicial or administrative action must be afforded an opportunity of hearing before any decision is taken. It relied on Maneka Gandhi vs. Union of India and equated audi alteram partem to be just, fair and reasonable. Further, it held that Article 14 of the Indian Constitution forms the bedrock of principles of natural justice and the violation of these principles directly violated Article 14.
The Court noted that principles of natural justice form a backdrop of procedural requirements thus, on grounds of procedural irregularities, the Supreme Court quashed and set aside the High Court’s judgment and ordered the IC to conduct fresh inquiry, in accordance with principles of natural justice.
The Court discussed the Vishakha guidelines in line with Articles 15, 42 and 51(A) of the Indian Constitution and CEDAW to observe that the mechanism put in place was to effectively address complaints of sexual harassment in the workplace. After Vishakha, the Medha Kotwal Lele case came up in which the Court addressed the issue of the Complaint’s Committee not being constituted as directed by the Guidelines laid down by this Court. After 15 years of Vishakha verdict, the POSH Act was legislated with the objective of having a reasonable procedural regime.
The Supreme Court noticed serious lapses in the enforcement of POSH Act even after such a long time and observed that the enactment would not provide dignity and respect that women deserve at the workplace unless there is strict adherence to enforcement regime and a proactive approach by all State and non-State actors. The Supreme Court issued the following directions:
- The Union of India, all State Governments and Union Territories are directed to undertake a time bound exercise to verify as to whether all the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. have constituted ICCs/LCs/ICs, as the case may be, and that the composition of the said Committees are strictly in terms of the provisions of the POSH Act.
- It shall be ensured that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, details of the e-mail IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, as also the relevant rules, Regulations and internal policies are made readily available on the website of the concerned Authority/Functionary/ Organisation/Institution/Body, as the case may be. The information furnished shall also be updated from time to time.
- A similar exercise shall be undertaken by all the Statutory bodies of professionals at the Apex level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes.
- Immediate and effective steps shall be taken by the authorities/ managements/employers to familiarize members of the ICCs/LCs/ICs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is finally concluded and the Report submitted.
- The authorities/management/employers shall regularly conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of the ICCs/LCs/ICs and to educate women employees and women’s groups about the provisions of the Act, the Rules and relevant Regulations.
- The National Legal Services Authority (NALSA) and the State Legal Services Authorities (SLSAs) shall develop modules to conduct workshops and organize awareness programmes to sensitize authorities/managements/employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar.
- The National Judicial Academy and the State Judicial Academies shall include in their annual calendars, orientation programmes, seminars, and workshops for capacity building of members of the ICCs/LCs/ICs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules.
- A copy of this judgment is directed to be transmitted to the Secretaries of all the Ministries, Government of India who shall ensure implementation of the directions by all the concerned Departments, Statutory Authorities, Institutions, Organisations etc. under the control of the respective Ministries. A copy of the judgment shall also be transmitted to the Chief Secretaries of all the States and Union Territories who shall ensure strict compliance of these directions by all the concerned Departments.
- The Registry of the Supreme Court of India is directed to transmit a copy of this judgment to the Director, National Judicial Academy, Member Secretary, NALSA, Chairperson, Bar Council of India and the Registrar Generals of all the High Courts, Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and the Engineering Council of India for implementing the directions issued.
- NALSA is requested to transmit a copy of this judgment to the Member Secretaries of all the State Legal Services Authorities. Similarly, the Registrar Generals of the State High Courts shall transmit a copy of this judgment to the Directors of the State Judicial Academies and the Principal District Judges/District Judges of their respective States.
- The Chairperson, Bar Council of India is directed to transmit a copy of this judgment to all the State Bar Councils and the State Level Councils, as the case may be.
The Supreme Court directed the union government, government of state and union territories, to file affidavits and report on compliance with the above directions within a period of 8 weeks.
Conclusion: While the directives from the Supreme Court are primarily aimed at government authorities, it’s crucial to emphasize that the POSH Act is equally applicable to private organizations. As a result, private establishments may also anticipate heightened scrutiny in the future. The Supreme Court has essentially reaffirmed the existing legal framework, which means private employers should make sure they comply with the POSH Act.
This judgement acts as a timely reminder that the enforcement of workplace sexual harassment laws should prioritize fairness, ensuring that all involved parties have a fair and equitable opportunity to present their cases. The judgment underscores the importance of diligently implementing and adhering to the legal provisions to safeguard the rights and dignity of individuals in the workplace.
- By Lakshita Bhati