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Calcutta HC extends POSH beyond workplace, says female school students covered under 2012 Act

Court was hearing appeal by a teacher, suspended after students made complaints of sexual harassment against him. He contended that POSH guidelines were not followed in the case.

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New Delhi: The Calcutta High Court Monday held that the provisions of the Prevention of Sexual Harassment Act, 2012, also apply to female school students. The court was hearing an appeal against a tribunal order which had upheld suspension orders passed against a teacher of the central government-aided Jawahar Navodaya Vidyalaya in Sikkim, against whom allegations of sexual harassment were made by 67 female students of the school.

The principal of the school had filed a written complaint against accused Pawan Kumar Niroula in February 2020 on the basis of complaints received from the students, following which he was arrested under Section 10 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The school had also constituted an inquiry committee immediately after the complaint to look into the allegations, which passed an order of suspension. Though the suspension had initially been for 90 days, it was extended multiple times and Niroula has been on suspension since, despite being out on bail.

In 2021, however, the accused challenged his suspension on the ground that as the complaint against him was of a sexual nature, the school should have constituted an Internal Complaints Committee (ICC) first to inquire into the allegations. Since the school did not do form an ICC but relied on an inquiry committee, the summary trial by the school in June 2021 has no legal force.

He submitted that the legal landscape for sexual harassment at workplace had undergone a change after the advent of the POSH Act, which mandatorily required such a committee.

In response, the school submitted that since the complaint had been made by female pupils of the school, the provisions of the POSH Act were not applicable, and the inquiry could not be held inconsistent of the Act’s provisions.

While the Kolkata bench of the Central Administrative Tribunal had upheld Niroula’s suspension, a division bench of the HC comprising Justice Harish Tandon and Justice Rabindranath Samanta set aside the order of the tribunal and held the school’s inquiry committee “unsustainable in law”. It also ordered the school to reinstate the teacher within one month and pay back wages for the suspension period. However, he may still be tried for sexual harassment in the case.

The HC bench held that female students at a school are included among “aggrieved women” as defined by the POSH Act. The Act has so far remained largely applicable to workplaces and this is the first time that a high court has extended its jurisdiction to students in educational institutions.

‘Sea change’ in sexual harassment at workplace law

The division bench of the Calcutta High Court said that the legal scenario dealing with sexual harassment at workplace had undergone a “sea change” after the Vishaka Judgment of 1997 and the enactment of the POSH Act in 2012.

The 1997 judgment had affirmed an ICC in every workplace, now statutorily recognised under the POSH Act.

The POSH Act requires every company having more than 10 employees to constitute an ICC to address any sexual harassment complaints made by a woman employee in a time-bound manner.

In the present case, the HC extensively referred to a Supreme Court decision while setting aside Niroula’s suspension. The SC had held in 2015 that an order of suspension exceeding 90 days without justifiable ground is “vitiated with illegalities”.

The order of the apex court back then had noted the punitive nature of such suspensions and that departmental proceedings are marred with delays. “Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be”, the SC had said.

The bench noted that in the present case, the petitioner had been under suspension for more than 100 days. Terming such an order void from the beginning due to not meeting prevailing legal standards, the court said the order should be set aside.

Further, the court observed that the POSH Act provides that the ICC shall make an enquiry in accordance with the service rules applicable to the individual.

Specifically referring to Rule 3C of the Central Civil Service Rules, which provides for sexual harassment complaints, the court said that since the coming of the POSH Act the Service Rules had been suitably amended to reflect the changed legal landscape.

It noted that the ICC must mandatorily consist of a member from an NGO or an association for the cause of women. The inquiry committee of the school did not meet such a composition, it observed.

“In view of the legal position as above, the committee constituted for summary trial without adhering to the mandatory requirements of the law and the rules as quoted above loses its legal force,” the court said.

Akshat Jain, a first-year student of law at NLU, Delhi, is an intern with ThePrint

(Edited by Poulomi Banerjee)

Also read: MP ex-woman judge can’t allege sex harassment, resign, get transfer order set aside: HC to SC


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