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The Sikkim High Court has partly set aside its order of a Single Judge by which it had stated that the definition of "workplace" in terms of Section 2(o) of the Sexual Harassment of Women at Workplace Act, 2013 shall be an 'inclusive' one and added that the Executive Authority which is dealing with the appeal against a decision of the Internal Committee (IC) shall decide the same.

The Single bench Judgement dated 8^th December, 2020 pertained to, whether an incident of sexual harassment that occurred at a "Private Marriage Function in a private hotel" will fall within the definition of "Workplace", as stipulated under section 2(o) of the Sexual Harassment (Prevention, Prohibition & Redressal) At Workplace Act, 2013 (PoSH Act).

This essentially means that the definition of "Workplace" under the act is yet to be interpreted and that the stand of the Court, of it being inclusive of "Private marriage function" does not stand as on date.

Extrapolating the same, a Divison Bench of Chief Justice Jitendra Kumar Maheshwari and Justice Meenakshi Madan Rai observed that,

“In our considered opinion, observation of the learned Single Judge referring section 2(o) of the Act i.e. ‘workplace’ its ambit and scope is not proper in particularly when the same question is permitted to be decided by the Executive Authority. Therefore, the finding on the point of jurisdiction explaining the definition of ‘workplace’ is inclusive one, stands set aside to such extent and the liberty is granted to the appellant to raise the said question before the Executive Authority who shall decide the same in accordance with law.”

According to the facts of the present case, the appellant was a Professor in the department of respondent no.1, Sikkim University. The respondent no.5, a student of the department made a complaint of sexual harassment against the appellant to the Internal Complaint Committee (IC) of the University.

The IC conducted an inquiry and the report was submitted to the Executive Council of the University (respondent no.3). The appellant was served with show cause notice  enclosing report of inquiry which was replied by him.

In light of this, the single judge bench had directed that the termination order passed against the Professor of Sikkim University, against whom allegations of sexual harassment were made out by the Internal Complaints Committee (IC) will not be effectuated during pendency of a writ petition filed by him challenging the same.

As a result, the Bench admitted the writ petition filed by the Professor, Department of Mass Communication challenging the show-cause notice issued against him, pursuant to the inquiry report of the IC on allegations of sexual harassment by a student on grounds of jurisdiction.

In light of this, the court had observed that if Court was to ultimately hold that the IC of the University had no jurisdiction to proceed with the inquiry (due to lack of jurisdiction thereof under the Act), the consequence may be that the impugned termination may have to be rendered bad in law as well.

"Having examined the definition of the word "workplace" in the said Act, it seems that the petitioner does have a strong arguable point on jurisdiction or the lack of it. Whether the broad interpretation of "workplace" would bring within its ambit attending a private marriage function in a private hotel, is a question which may have to be examined" – The Singe Judge Bench

In this respect, the Learned Counsel for the appellant contended before the Division Bench that,

“At one place learned Single Judge proceeded to decide the scope of the definition of the ‘workplace’ observing that it is inclusive definition but simultaneously the same question was left open to decide by the Executive Authority in terms of Section 9 of the Act, which cannot be decided exceeding to the observations of the Court.”

He further urged that,

“the premises on which observation has been made by the Court is the statement of the Complainant as well as the co-students. If it has been dealt with by the Court now on this count nothing remain to be decided by the Executive Authority, therefore, the decision taken by the Court on the point of the jurisdiction explaining the ambit and scope of workplace is not justifiable, more so the said question cannot be left open for decision by the Executive Authority.”

Taking into account the factual matrix of the present case, the Division Bench observed that, “we find much substance in the argument of the learned Counsel for the appellant.”

The Bench further proceeded to refer UGC Regulations no.8 and held that, “because the appeal is pending before the Executive Authority, therefore, order of termination would be kept in abeyance and appeal shall be decided by the Authority on all issues and the questions, as raised. The said finding of learned single Judge would remain intact and it does not warrant any interference.”  

The Bench lastly directed that the Executive Authority shall decide the appeal as observed by the learned Single Judge without influencing with the observation recorded in the Judgment on the point of jurisdiction or on the point of ambit and scope on the definition of ‘workplace’.

The said issue be decided by the Executive Authority independently. The remaining part of the impugned order would continue to operate. The Executive Authority shall decide the appeal as expeditiously as possible not later than three months.

[Case Title - Silajit Guha v. Sikkim University, W.A. No. 01 of 2021]