In the case of Silajit Guha vs. Sikkim University & Ors. on 8th December 2020, a writ petition before HC Sikkim was filed by a professor of Sikkim University (“Petitioner”) against the University, the IC of the University, Executive Authority of the University and the female student (“Respondents”) who filed a complaint of sexual harassment against him. After the complainant filed a complaint in May 2019, the IC conducted an inquiry. The IC submitted recommendations to the Executive Authority on 8th June 2019, wherein it found the complainant’s allegations against the petitioner to be true. The Petitioner took the route of statutory appeal before the Executive Authority. While the appeal was pending, a show cause-notice was issued to the Petitioner on 10th June, 2019 by the Executive Authority. On replying to it, he was issued a Termination order by the Executive Authority on 28th June, 2019. In this writ petition, the Petitioner raises 3 issues:
- IC does not have jurisdiction as one of the incidents complained of, took place in a wedding at a hotel reception – beyond the definition of (workplace) under section 2(o) of POSH Act, 2013. It was his contention that sweeping definition cannot be given to the term ―workplace and relied on the judgment of Delhi High Court in Saurabh Kumar Mallick vs. Comptroller & Auditor General of India & Anr. for this argument.
- Inquiry process was not in line with the law as he was not given a chance to conduct cross examination.
- Termination order is illegal as it was not issued as per procedure laid down in section 8 of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 (UGC Regulation).
With respect to jurisdiction and ‘workplace’, Respondents argued that since the POSH Act 2013 is a social and a beneficial legislation, the definition of workplace must receive a wider interpretation and if it was so done then the act complained of would fall within the definition of workplace. Section 2(o)(v) was relied on for this.
The Court, on this point, said that the definition of ‘workplace’ under the POSH Act and the UGC Regulations is an inclusive one and not an exhaustive one. It also said that the incidents complained of were not related to the isolated incident at the hotel only and had allegations regarding instances taking place at office as well – which fall within the definition of workplace. It, therefore, said that IC had jurisdiction to inquire into this complaint. It further said that it is felt necessary to leave the question as to whether the incident at the wedding reception would come within the meaning of ―sexual harassment at workplace, as provided in section 9 of the Act of 2013, to be decided by the Executive Authority in the pending appeal as well.
With respect to the Termination order, the petitioner contended that he filed an appeal within 30 days of the issue of recommendations and inquiry report. Regulation 8(4) holds that the recommendation should be acted upon, unless the aggrieved party files an appeal within 30 days. The Petitioner contented and the same was also held by the Court held that the Executive Authority should not have acted upon the recommendation by issuing a termination order until the appeal period had expired.
The Respondents contended that they followed the process under Regulation 8(6). It provides that if the Executive Authority wishes to take action, they must issue a show cause notice, which must be answered by the aggrieved party within 7 days. The petitioner contended that even after filing an appeal within 30 days of the recommendations and responding in time to the show cause notice, a termination order was served to the Petitioner before the expiry of the appeal period.
The Court held that ‘A composite reading of all the sub-clauses of Regulation 8, makes it evident that the Executive Authority could not have taken the final step of terminating the petitioner on the recommendation of the ICC before the thirty days period provided to him under Regulation 8(5) to prefer an appeal. This court is, therefore, of the view that during the pendency of the appeal before the Executive Council, his termination order shall be kept in abeyance until the final decision in the pending appeal’.
– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner POSH at Work & Adv. Vatsal Chorera – Legal & Compliance
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