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Synopsis

The Delhi High Court has recently held that there is "absolutely nothing" that limits the scope of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to cases where a woman employee is sexually harassed by another employee working in her own office or department, but also extends to cases where the delinquent employee is employed elsewhere.

While observing that in an era where women are equalling men in every professional achievement, there can be no compromise on objectives of the PoSH Act, the division bench comprising of Justice C. Hari Shankar and Justice Manoj Jain said equalising of sexes in every aspect of life is a constitutional imperative and the working environment is required to be as safe and secure for women as it is for men.

"Even an apprehension, by a woman, that her safety might be compromised or endangered in the workplace is, therefore, abhorrent to our constitutional ethos," the court said.

The bench also said that any interpretation which would dilute, or defeat, the purpose of the legislation, which is to ensure a safe working environment for women has, therefore, to be sedulously eschewed.

The court was hearing a plea filed by an 2010 Batch officer of the Indian Revenue Service (IRS) namely, Dr. Sohail Malik who was challenging a meeting notice issued by the Internal Complaints Committee (ICC). Malik was issued notice after a complaint was filed by an Indian Administrative Service (IAS) officer alleging that he had sexually harassed her.

Malik had first approached the Central Administrative Tribunal, Principal Bench, New Delhi. However, the CAT dismissed his plea. Thereafter, he approached the High Court.

Counsel for Malik contended that he and the complainant work in separate departments and the ICC of one department cannot conduct an inquiry under the SHW Act. He also submitted that under Section 13 of the SHW Act, the report of the ICC is required to be forwarded to the employer in order to take consequent action, if necessary by way of disciplinary proceedings. He submitted that the employer under Section 2(g) would be the Head of the Department of the complainant, who exercises “no disciplinary control” over the petitioner.

“The report of the ICC would be unenforceable, as no action could be taken on the basis thereof”, the counsel submitted. Furthermore, he submitted that in order for the SHW Act to be applicable, both the workplace where the complaint was made and the location of the alleged sexual harasser must be the same.

To this, the court said, that such an interpretation would strike at the very root of the SHW Act, and its ethos and philosophy. “That said, however, there is some force in Mr Bharadwaj’s contention that the Court cannot rewrite the statute, or provide casus omissus and, if the SHW Act cannot be so read as to protect a woman working in one department of the Government from harassment by an officer or employee of another department, the Court may have to defer to the statue”, the court said.

The court opined that the SHW Act does not insulate, from action thereunder, men who sexually harass women in offices other than those in which they are themselves working. “Having read Section 11(1), we are in agreement with the learned Tribunal in its finding that there is nothing in the said provision which would restrict its application only to cases where the respondent i.e., the officer against whom sexual harassment is being alleged, is the employee of the department where the complainant is working”, the court said in its June 30 order.

“Thus seen, and given the width of the definition of employer in Section 2(m), we are of the considered opinion that, in order to make the provisions of the SHW Act meaningful and applicable even in a case where the alleged perpetrator of sexual harassment is an employee of another department, the definition of employer under Section 2(g)(i) of the SHW Act has to be read as including the employer of the department where the alleged perpetrator of sexual harassment is working”, the court further said.

Conclusively, the court upheld the CAT’s decision and refused to quash the ICC notice.

Case Title: Dr Sohail Malik v. Union of India & Anr.