POSH FOR SCHOOL

In the case of PKN vs. Union of India and others, the Calcutta High Court ruled on January 24, 2022, that the POSH Act applies even if a complaint is lodged by students, and that an internal committee is necessary to be formed under Section 4 of the POSH Act to investigate such complaints.

Facts:

• Since 2011, the petitioner has worked as a teacher at Jawahar Navodaya Vidyalaya in Ravangla, South Sikkim.
• Respondent no. 4, the school’s principal, filed a formal complaint at Ravangla Police Station on February 15, 2020, after receiving complaints on February 14, 2020, from various pupils claiming sexual harassment by the petitioner. On February 15, 2020, the petitioner was arrested and detained for 24 hours under Section 10 of the Protection of Children from Sexual Offenses Act, 2012.
• The applicant was told by the school administration on 16 February 2020 that he is dismissed with respect from 15 February 2020 in accordance with subrule (2) of Rule 10 of the Central Civil Services Rules, 1965 (“CCS”), which was prolonged until 10 February 2021.
• Following that, by order dated 16 June 2020, the principal established an internal committee to investigate the accusations, in which about 67 pupils complained in writing alleging sexual harassment. (Please note: This committee was formed in accordance with a notification issued by the Navadaya Vidyalaya Samiti on December 20, 1993, mandating the formation of a committee for summary trial to investigate complaints of sexual harassment against any teacher at the school.)
• Ultimately, the petitioner filed an appeal with the Chairman of Navadaya Vidyalaya Samiti, disputing the suspension order. The suspension order, however, was extended for another 90 days and then again – eventually until 10.02.2021.

Unsatisfied, the petitioner filed the current writ petition

1. Issues: The issues in this writ petition include whether the POSH Act would apply in the context of student complaints.
2. After the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 and the alteration of procedural laws of the Central Civil Services (Classification, Control, and Appeal) Rules, 1965 in light of the Act, the committee formed for summary trial pertaining to the petitioner’s allegations of sexual harassment has statutory force.
3. The petitioner was granted a suspension order, which is legally binding.

Addressing Issue 1 – whether or not the POSH Act affects students: Respondent school administrators further maintained that because the complaints of sexual harassment were made by the school’s female students, the provisions of the Sexual Harassment of Women at Workplace Act, 2013 (“POSH Act”) would not apply to the respondent school.

Assessment of the Court on Issue 1: Regarding the applicability of the POSH Act, the Court noted that the definition of ‘aggrieved woman’ as characterised under Section 2 (a) of the POSH Act pertains to an aggrieved woman in regards to a workplace, a woman of any age, employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent. As a result, the requirements of the POSH Act directly apply to the school’s students.

On Issue 2 – if the advisory board formed by the respondent school administration was appropriate: The appellant argued that because the complaint against him was of the character of sexual harassment at work, the respondent school administrators should have formed an internal complaints committee in accordance with the POSH Act.

Respondent school officials, on the other side, argued that the notice issued by Navadaya Vidyalaya Samiti on 20 December 1993 willing to prescribe the formation of a review panel for judicial proceeding to investigate allegations of sexual harassment against another teacher at the school carries legal force because the notice was endorsed by the Hon’ble Apex Court in the case of Avinash Nagra vs Navadaya Vidyalaya Samiti, JT 1996 (10) SC 461.

Assessment of the Court on Issue 3: Making reference to the judgments Vishaka vs the State of Rajasthan (1997) 6 SCC 241 and Medha Kotwal Lele and Others vs Union of India and Ors (2013) 1 SCC 297, the Court stated that the legal landscape dealing with complaints of sexual harassment at work has changed dramatically. According to the Act, every organisation must form an IC to investigate allegations of sexual harassment.

In this respect, the court cited Punjab and Sind Bank and Others versus Durgesh Kuwar (2020) SCC Online SC 774 and stated that the summary trial committee was formed without following the required conditions of the law. According to the law, one member of the internal complaints committee must be an external member from a non-governmental organisation or association devoted to the cause of women, or a person knowledgeable with sexual harassment concerns. The respondent school authority did not have an external member in this case, despite the fact that the committee was formed in accordance with the announcement issued by Navadaya Vidyalaya Samiti on December 20, 1993. It said that the committee did not adhere to the fundamentals.

The Court then considered Section 11 of the POSH Act and determined that the IC must proceed with the investigation of the complaint in line with the terms of the service regulations applicable to the respondent under this section. Amended Rule 14 of the CCS Rules states, among other things, that an inquiry must follow if no specific procedure has been provided for the complaints committee to undertake an investigation into sexual harassment charges. According to the POSH Act, in such cases, the investigation must be conducted in accordance with the method outlined in these guidelines. In light of this legal position, the summary trial committee was formed without complying with the required procedures of the law and the rules loses their legal force.

On Issue 3 – if the petitioner’s suspension is unlawful under the law: According to Rule 10 (2) of the CCS Rules, 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 of more than 48 hours. As a result, the suspension order is illegitimate from the start. He cited Ajay Kumar Choudhary versus Union of India (2015) 7 SCC 291 in which the Hon’ble Apex Court said that an order of suspension for more than 90 days without a good reason is void.

Remark of the Court on Issue 3: The Court stated to Ajay Kumar Choudhary vs Union of India and instructed that a suspending order not exceed three months (if the memo of charges / charge-sheet is not provided on the delinquent officer/employee within this period). Only once the statement of charges/charge-sheet has been served may the suspension be extended.

The Court’s decision on the problem: 

1.  POSH Act applies even if complaints are brought by students.
2.  The committee formed for summary trial loses legal force if it does not follow the required provisions of the POSH Act (and the rules). As a result, the formation of an internal committee in accordance with Section 4 of the POSH Act would be required.
3. The petitioner’s suspension order, which had been prolonged from time to time, was overturned. The respondent school authorities were ordered to enable the petitioner to begin work within one month of the date. They were also ordered to reimburse the petitioner’s past salary within two months of his start date on the job.

(Note: As previously noted, the school administration filed a formal complaint with the local police station on February 15, 2020, in accordance with Section 10 of the POCSO Act. On February 15, 2020, the petitioner was detained. As a result, he was freed on bond by the relevant Court. The remainder of the process followed by the police on this complaint under Section 10 of the PCSO Act has not been disclosed.