Express Acts of Sexual Harassment not mandatory under POSH Act

Tripura High Court: Express Acts of Sexual Harassment not mandatory under POSH Act

In VKR vs. The Union of India and Others, 2022, the Tripura High Court (“Court”) observed that the express mentioning of instances of sexual harassment is not mandatory in the victim’s complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act, 2013”).

Facts

VKR (“Petitioner”) had taken charge as IT Range, Agartala as well had additional charge of Group Centre Central Reserve Police Force (“CRPF”), when the Respondent/victim had just joined CRPF at Agartala. One day, the petitioner called the respondent to his chamber post the working hours, and got the respondent/victim to reluctantly share her personal mobile number with him. He then started sending informal messages to her. Post this, he started calling her on her landline to ask irrelevant questions. Not only him, but his wife also billingsgate and threatened the victim. The victim narrated the entire set of events to the Director General (“DG”) via Email. The DG then constituted a Sector Level Complaints Committee (“SLCC”) under POSH Act, 2013, which consisted of one lady IPS Officer, as a Chairperson, one more lady officer also from the department, one lady member representing the NGO and a Legal Officer of the department.

Infuriated by the inquiry report of the SLCC, the petitioner approached the Court.

Contentions

The petitioner raised the following contentions –

  1. The complaint did not fall within the purview of Section 2(n) of the POSH Act, 2013.
  2. Delay in filing the complaint was in violation of Section 9 of the POSH Act, 2013.
  3. Since the complainant was not suffering from a legal handicap, her husband could not have filed the complaint on her behalf.
  4. The petitioner relied upon Section 11(4) to render the proceedings of the inquiry committee invalid since they were not completed within 90 days.
  5. Without the permission of the concerned Minister, no charge-sheet could have been issued to the petitioner since he was a high-level IPS Officer.
  6. Point of irregularity with regards to the appointment of Chairperson.

Observations of the Court

Contention 1 – The Court pointed out that the definition of sexual harassment as under Section 2(n) of the POSH Act, 2013 was not exhaustive, but rather an inclusive one. Adding to that, the Court said that the acts or behaviors as mentioned here also provides for whether it is done directly or by implication. Thus, even this aspect is to be included.

It was then observed that given the broad ambit of the definition, an express instance of sexual harassment in the complaint was not necessary. Again, during the inquiry, it was further revealed that the petitioner had called the complainant to his chamber post the working hours and made remarks on her looks and tried putting his hand around her. With this, the Court concluded it was, indeed, an unwelcoming act.

Contention 2 – The Court observed that questions of delay were to be looked into by the Internal Complaints Committee and not by the Court at an interim stage of proceedings.

Contention 3 – This contention was rendered factually incorrect. The petitioner himself had produced a copy of the complaint which had the name of the complainant and was directed to the DG of CRPF, and that the complaint was forwarded from the complainant’s email ID itself. Hence, the Court concluded that the complaint was filed by the complainant herself.

Contention 4 – As per the rules of statutory interpretation, if a provision that talks about time limit is not accompanied with a penal or adverse consequence in case of non-compliance, it is not considered mandatory. Also, the legislative intent behind the insertion of such a provision is to regard cases of sexual harassment as serious, and to dispose them off as soon as possible. The time limit provided for in Section 11(4) should not be seen as an end point beyond which no inquiry can be continued.

Contention 5 – This requirement was not needed to be met in the present case since the department had constituted a SLCC, and no departmental charge-sheet had been issued.

Contention 6 – To this, the Court, after looking into the submissions made by the respondent, concluded that the Smt. Barnali Goswami was already appointed as the chairperson, and it was only a formal amendment that the department had issued later. Thus, her participation in the proceedings was not unauthorized.

Resultantly, the petition stood dismissed.

Vaishali Jain, Advocate & Associate – POSH at Work & Sampoorna Chatterjee

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