POSH Act Is Applicable Even In Those Cases Where The Victim And The Harasser Work In Different Department: Delhi High Court






Case Title: Dr Sohail Malik vs Union of India

A division bench of Justice C Hari Shankar and Justice Manoj Jain of Delhi High Court held that the under POSH Act, sexual harassment of women at workplace is applicable even in cases where the victim and the harasser work in different departments.

The bench said that there is nothing stated in the POSH Act which limits only to that people who are working in the same departments.

“Equalizing of the sexes in every aspect of life is, therefore, a constitutional imperative. 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”.

Any interpretation of the provisions of the Act which downplays or impedes complete achievement and implementation of its objectives, has to be firmly eschewed, the Bench said.

The petition was filed by Dr Sohail Malik after an IAS officer filed a complaint against him alleging that he had sexually harassed the complainant. The plea was first challenged before the CAT, however the CAT dismissed the said plea.

The counsel for the Malik submitted that he and the complainant (woman) work in separate departments, hence the ICC cannot conduct an inquiry under the POSH Act.

The bench rejected the Malik’s argument and held that there is nothing in the POSH act which restricts its application only to the cases where the victim and the harasser are working in same department.

“Section 11(1) merely states that, ‘where the respondent is an employee’, the ICC shall proceed to make inquiry into the complaint ‘in accordance with the service rules applicable to the respondent’. In our considered opinion, the use of the words “in accordance with the service rules applicable to the respondent’ itself indicates that the statute has kept in mind a possibility where the respondent may be governed by service rules which are not those which apply to the complainant or to the department where the complainant is working”.

The bench further added that “Under Section 13(1), therefore, if the employer who has to take action on the basis of the findings of the ICC is the head of a department other than that in which the complainant-employee is working, we see no embargo under the SHW Act on the findings of the ICC being forwarded to that employer, who has disciplinary control over the alleged perpetrator of sexual harassment, to take action on the basis thereof”.

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