The Calcutta High Court on 24^th January 2022 in the matter of PKN vs. Union of India and others held that POSH Act applies even if a complaint has been filed by students and an internal committee is required to be constituted as per section 4 of POSH Act to inquire into such complaints.

Facts:

• The petitioner is a teacher and has been working at Jawahar Navodaya Vidyalaya, Ravangla, South Sikkim since 2011.
• On 15 February 2020, respondent no. 4, the principal of the school made a written complaint at Ravangla Police Station after receiving complaints on 14 February 2020 from multiple students against the petitioner alleging commission of sexual harassment. The petitioner was arrested and kept in custody for 24 hours on 15 February 2020 under Section 10 of the Protection of Children from Sexual Offences Act, 2012.
• On 16 February 2020 the petitioner was informed by the school authorities that he is suspended with effect from 15 February 2020 in terms of subrule (2) of Rule 10 of the Central Civil Services Rules, 1965 (“CCS”) which was extended up to 10 February 2021.
• Subsequently, by an order dated 16 June 2020, the principal constituted an internal committee to enquire into the complaints where around 67 students complained in writing alleging that they were sexually harassed. (Please note: This committee was constituted as per a notification released on 20 December 1993 by the Navadaya Vidyalaya Samiti prescribing the constitution of committee for summary trial to enquire into allegations of sexual harassment against any teacher of the school.)
• Eventually petitioner filed an appeal before the Chairman of Navadaya Vidyalaya Samiti questioning the order of suspension. The order of suspension was, however, extended for another period of 90 days and extended again – ultimately till 10.02.2021.
• Finally, being unsatisfied, petitioner filed the present writ petition.

Issues: The questions involved in this writ petition are whether:

1. The POSH Act would be applicable in case of complaints filed by students.
2. The committee constituted for summary trial pertaining to the allegations of sexual harassment against the petitioner has statutory force after enactment of the Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and amendment of relevant provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 in the light of the Act.
3. The order of suspension inflicted upon the petitioner is sustainable in law.

On Issue 1 – whether POSH Act applies to students: Respondent school authorities further argued that since the allegations of sexual harassment have been made by the girl students of the school, the provisions of Sexual Harassment of Women at Workplace Act, 2013 (“POSH Act”) will not be applicable to the respondent school.

Observation of the Court on Issue 1: On applicability of the POSH Act, the Court noted that the definition of ‘aggrieved woman’ as defined under Section 2 (a) of the POSH Act refers to an aggrieved woman in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent. That being so, the provisions of the POSH Act squarely apply to the students of the school.

On Issue 2 – whether the committee constituted by the respondent school authority was proper: The petitioner contended that as the complaint against him is of the nature of sexual harassment at workplace, the respondent school authorities should have constituted internal complaints committee as per the POSH Act.

On the other hand, Respondent school authorities contended that the notification which was released on 20 December 1993 by Navadaya Vidyalaya Samiti prescribing the constitution of committee for summary trial to enquire into allegations of sexual harassment against any teacher of the school carries legal force as the notification has been upheld by the Hon’ble Apex Court in the case of Avinash Nagra vs Navadaya Vidyalaya Samiti, JT 1996 (10) SC 461.

Observation of the Court on Issue 2: The Court referring to judgments Vishaka vs State of Rajasthan (1997) 6 SCC 241 and Medha Kotwal Lele and Others vs Union of India and Ors (2013) 1 SCC 297 said that the legal scenario dealing with the complaints of sexual harassment at workplace has undergone a sea-change. Every organisation has to constitute an IC to enquire into complaints of sexual harassment as per the Act.

In this regard, the court also referred to Punjab and Sind Bank and Others vs Durgesh Kuwar (2020) SCC Online SC 774 and said that the committee constituted for summary trial was done without adhering to the mandatory requirements of the law. As per the law, one member of the internal complaints committee has to be an external member either from a non-governmental organisation or association committed to the cause of women or a person familiar with issues relating to sexual harassment. In this situation the respondent school authority did not have an external member, even though the committee was constituted in terms of the notification dated 20 December 1993 issued by Navadaya Vidyalaya Samiti. It said that the committee did not follow the fundamental legal requirements under Section 4 of the POSH Act.

The Court further looked into Section 11 of the POSH Act and said that IC has to proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent as per this section. Amended Rule 14 of the CCS Rules, among other things, also says that inquiry shall follow, if separate procedure has not been prescribed for the complaints committee for holding the enquiry into the complaints of sexual harassment. As per POSH Act, in such case, the inquiry as far as practicable has to be done in accordance with the procedure laid down in these rules. In view of this legal position, the committee constituted for summary trial without adhering to the mandatory requirements of the law and the rules loses its legal force.

On Issue 3 – whether the suspension of the petitioner is bad in law: The petitioner contended that a government servant can be suspended by the appointing authority only if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours as per Rule 10 (2) of CCS Rules. That being so, the order of suspension is illegal from the very beginning. He referred to Ajay Kumar Choudhary vs Union of India (2015) 7 SCC 291 in which it was declared by the Hon’ble Apex Court that an order of suspension exceeding 90 days without any justifiable ground is vitiated with illegalities.

Observation of the Court on Issue 3: The Court referred to Ajay Kumar Choudhary vs Union of India and directed that a suspension order should not extend beyond three months (If within this period the memorandum of charges / charge-sheet is not served on the delinquent officer/employee). Extension of suspension can be done only if the memorandum of charges/charge-sheet is served.

Decision of the Court:

On issue 1: The POSH Act applies even if complaints are filed by students.

On issue 2: The committee constituted for summary trial without adhering to the mandatory requirements of POSH Act (and the rules) loses its legal force. Therefore, constitution of Internal Committee as per Section 4 of POSH Act would be necessary.

On issue 3: The order of suspension against the petitioner which was extended from time to time was quashed. The respondent school authorities were directed to allow the petitioner to join his duties within one month from the date. They were also directed to pay all the back wages to the petitioner within two months from the date of joining of his duties.

(Note: As stated above, a written complaint was made by school authorities with the local police station on15.02.2020 under Section 10 of POCSO Act. Petitioner was arrested on 15.02.2020. Subsequently he was released on bail by the concerned Court. The rest of the process being followed by Police on this complaint under Section 10 of PCSO Act has not been discussed in this case.)

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Child Safety at Work & – Shagnik Bhattacherjee, Legal and Compliance – Child Safety at Work