Indecent Conduct

The Madras High Court directed the employer to verify whether the complaint filed by a nurse in 2017 was dealt in accordance with posh act, 2013

In X v. Y Health Service and Ors. (W.P. (Md) No. 2109 Of 2020, W.M.P. (Md) Nos. 3323, 1766 And 1768 Of 2020), the Madras High Court (Madurai Bench) on 21.07.2022 directed the employer to verify as to whether the complaint was dealt with in accordance to the provision of the POSH Act, to take necessary action against the Officers responsible for non-compliance and to refer the complaint of the Petitioner to the IC and instructed the inquiry to be completed within a reasonable time.  

Facts 

The Petitioner had been working as a nurse at Odaipatti Primary Health Centre, Theni District from the year 2014. In 2017, she lodged a complaint with Respondent No. 1 after being sexually harassed by a Block Development Officer (henceforth referred to as ‚ÄúRespondent No. 2‚ÄĚ). Based on her complaint, an inquiry was ordered but the inquiry report was not filed.  

In the meantime, as per an order, the Petitioner was deputed to Kurankani Primary Health Centre and a consequential order was passed for relieving her from Odaipatti Primary Health Centre. The same was challenged by the Petitioner before the High Court of Madras and the Court while entertaining the writ petition, granted an order of interim stay. Subsequently, the said writ petition was closed based on submissions made on either side that the relief sought has become infructuous.  

Thereafter, the Respondent No. 2, against whom, the Petitioner filed the complaint, was appointed as Block Medical Officer, Odaipatti.  Acting on mala fide intention and vengeance, he again transferred the Petitioner to Kurankani Primary Health Centre. Aggrieved over the same, the Petitioner filed the present writ petition.  

Arguments by the Petitioner 

  • The Petitioner contended that the impugned transfer order was passed with mala fide intention to harass the Petitioner for having lodged the POSH complaint against Respondent No. 2.  
  • The impugned order was passed within three days from the date on which the Respondent No. 2 took charge as Block Medical Officer, and it is in contradiction with the stand taken by the Department before this Court in the earlier writ petition.  

Arguments by the Respondent 

  • The Petitioner is the only staff nurse at Odaipatti Primary Health Centre and on a particular day, had left the hospital without intimidating her immediate superior, namely the Block Medical Officer and had committed several irregularities and had not maintained the records properly and memos were issued to the Petitioner on all these instances.   
  • Respondent No. 2 had informed the conduct of the Petitioner to the Deputy Director of Health Service, Theni and after taking cognizance of the issue, the Deputy Director of Health Service passed a deputation order, deputing the Petitioner from Odaipatti to Kurankani. Based on this, the Respondent No. 2 issued the consequential order of relieving the Petitioner and that was challenged in the earlier writ petition.  
  • On knowing the same, Respondent No. 2 filed a complaint against the Petitioner before the Deputy Director of Health Service. On the very next day, the Petitioner filed a complaint against Respondent No. 2 and the complaint was also forwarded to the Vishaka Committee. The Inquiry Committee after conducting a full-fledged inquiry concluded that the entire allegation is false and baseless and forwarded its report to the Directorate of Public Health.  
  • The Respondent contended that the present writ petition is filed without challenging the order of the Deputy Director of Health Service and therefore, is not maintainable.  

Judgment  

The Court held that the impugned order had been passed based on the earlier order of deputation passed by the Deputy Director of Health Service, which was also the subject matter of the earlier writ petition. This Court had closed the earlier writ petition based on representations made by either party and the same was not challenged by the Respondent. Therefore, the said order becomes final and since the earlier order has been culminated to an end, the consequential order passed by Respondent No. 2 is liable to be set aside.  

The Court also expressed its shock on the manner in which the complaint preferred by the Petitioner was dealt with by the Department. The Court referred to the judgment held by the Supreme Court in Vishaka v. State of Rajasthan and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) and held that the Petitioner‚Äôs complaint was not forwarded to the Vishaka Committee, instead it was dealt with by an Officer at the rank of Block Medical Officer appointed by the Deputy Director of Health Services, Theni.  

The Court observed that even though the complaint was filed by the Petitioner in 2017, the same has not been forwarded either to the Internal Committee or to the Local Committee as mandated under the POSH Act. As per Section 13 of the POSH Act, on completion of the inquiry, the Committee is required to provide a report to the employer within a period of ten days from the date of completion of the inquiry and such report needs to be made available to the concerned parties. Such an inquiry report has not been placed before the Court even after repeated reminders by the Court. Neither has such an inquiry report been furnished to the Petitioner.  

The Court concluded that the complaint of the Petitioner was not dealt with in accordance with law and the non-compliance of the POSH Act is also of penal consequences. Therefore, the Court directed Respondent No. 1 to verify as to whether the complaint was dealt with according to the provisions of the POSH Act and if not, to take necessary actions against the Officers responsible for the same and refer the complaint of the Petitioner to the Committee constituted under the POSH Act and instructed that the inquiry has to be completed within a reasonable time.  

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