Supreme Court rescued Mr. Aureliano Fernandes, in sexual harassement case, asked the institutions to strictly follow POSH law
Dr Ajay Kummar Pandey
Advocate and Consultant | Criminal l Civil l Company Lawl Insolvency l Family Law & ors
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One of the most important but highly neglected act both in government and private sector is Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“#POSH Act”), which mandates employers with 10 (ten) or more employees to,?inter alia, set up an internal committee (“IC”) at #workplace .
First of all, in most institutions there is no internal committee and in some where it exists, it is only on paper. Factors including lack of general awareness and holistic understanding of the due process to be considered in conducting IC proceedings, inadequate training of the IC,?etc. have plagued proper implementation and effectiveness of the grievance redressal mechanism under the #poshact .
#supremecourt in the recent case of?Aureliano Fernandes v. State of Goa and Ors.took note of the lack of proper enforcement and implementation of compliances under the POSH Act, and passed a slew of directions in this regard.
Brief facts
The appellant, Mr. Aureliano Fernandes, was dismissed from services and barred from future employment with government authorities in Goa, pursuant to findings of the IC constituted by Goa #university , inquiring into multiple complaints of sexual harassment filed against the appellant. The Supreme Court considered the appellant’s challenge to his dismissal order by evaluating,?inter alia, compliance by the IC with due process under applicable laws.
Analysis and findings
The Supreme Court observed that the IC displayed “undue haste” in conducting its inquiry in an effort to expeditiously adjudicate complaints received against the appellant. Noting procedural irregularities in IC proceedings instituted against the appellant including,?inter alia, failure of IC to provide the appellant with reasonable time to prepare his defence, the Supreme Court observed that due process, an important facet of the principles of natural justice was seriously compromised and ordered fresh IC proceedings to be instituted against the appellant, setting aside the earlier findings of the IC.
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Directions issued by the #SupremeCourt
The Supreme Court expressed its disappointment over the failure of several state functionaries, public authorities and private undertakings in implementing the POSH Act at workplace. Highlighting the importance of compliance with the POSH Act in ensuring success of its objects, including providing women with a safe and dignified working environment, the Supreme Court has directed central and state governments to undertake a timebound exercise to verify that concerned institutions have constituted ICs/local committees, as the case maybe, in accordance with the POSH Act. Further, it has directed institutions to ensure,?inter alia, the following:
Principles of #NaturalJustice
Principles of natural justice have evolved over time through judicial precedents as envisioned under Article 14 and Article 21 of the Constitution of India, which grants individuals the right to equality, dignity and non-discrimination. As noted by the Supreme Court in several cases, the two-pronged test of?Nemo Judex In Causa Sua?–?i.e., no person will be a judge in his own cause and?Audi Alteram Partem?–?i.e., an individual must be afforded an opportunity of hearing before any decision is taken, form the basis of the principles of natural justice.
These principles prohibit decision- making authorities from taking arbitrary procedural action against individuals. The Supreme Court also noted that “a person accused of misconduct must be informed of the case, must be supplied the evidence in support thereof and be given a reasonable opportunity to present his version before any adverse decision is taken”. Decision making authorities are required to ensure fairness, transparency and integrity while handling complaints of misconduct, to prevent serious consequences of unfair penalization, discrimination and arbitrariness.
As such, an IC is required to ensure that a respondent is,?inter alia, well-acquainted with the nature of allegations levelled against him; afforded an opportunity to present his reply in defence and cross examine witnesses; and lead evidence, in his own defence. IC proceedings held in non-conformity with these requirements are likely to be challenged and set aside by courts on account of arbitrariness, and failure to adhere to the due process of law.
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