Saurabh Kumar Mallick v. CAG: Reinforcing the Reach of the POSH Act in Government Institutions.

In a landmark judgment, the Delhi High Court delivered a resounding verdict that extended the applicability of the Prevention of Sexual Harassment (POSH) Act to government organizations, including constitutional bodies like the Comptroller and Auditor General of India (CAG). The case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India (2018) was a pivotal moment in ensuring that the principles of the POSH Act are upheld across all spheres of employment, irrespective of the nature or status of the organization.

The Crux of the Case

The case arose from a petition filed by Saurabh Kumar Mallick, an Assistant Audit Officer employed with the CAG, who alleged that he had been subjected to sexual harassment by a superior officer. Mallick claimed that despite filing a formal complaint, the CAG failed to take appropriate action or constitute an Internal Complaints Committee (ICC) as mandated by the POSH Act.

The CAG, in its defense, argued that as a constitutional body, it was not bound by the provisions of the POSH Act, which primarily applied to private-sector organizations and government departments.

The Decisive Ruling

The Delhi High Court, in its judgment, unequivocally rejected the CAG's contention and affirmed the applicability of the POSH Act to all organizations, including constitutional bodies like the CAG. The court's reasoning was based on a comprehensive analysis of the Act's provisions and its overarching objective of providing a safe and secure work environment for all employees, regardless of the organization's nature or status.

Key Observations and Implications:

Broad Applicability: The High Court emphasized that the POSH Act is a comprehensive legislation aimed at addressing sexual harassment in all workplaces, without any exceptions or limitations based on the type of organization.

Constitutional Mandate: The court highlighted that the POSH Act is a manifestation of India's constitutional commitment to ensuring gender equality and the right to life and dignity for all individuals, including those employed in constitutional bodies.

Equal Protection: The judgment reinforced the principle that all employees, irrespective of their place of employment, are entitled to equal protection under the law and the right to a safe and secure work environment.

Compliance Obligations: The court underscored that constitutional bodies like the CAG are not exempt from their obligations under the POSH Act, including the requirement to constitute an Internal Complaints Committee and implement mechanisms for addressing sexual harassment complaints.

The Broader Impact

The Saurabh Kumar Mallick v. CAG judgment has far-reaching implications for the effective implementation of the POSH Act across various sectors and organizations. It sends a clear message that no institution, regardless of its constitutional status or nature, can claim exemption from the provisions of this crucial legislation.

By extending the reach of the POSH Act to government organizations and constitutional bodies, the Delhi High Court has reinforced the principles of equality, non-discrimination, and the right to a safe and dignified work environment for all employees. This judgment serves as a powerful reminder that the fight against sexual harassment in the workplace transcends organizational boundaries and requires a concerted effort from all stakeholders, including those in positions of authority and responsibility.

As India continues to grapple with the pervasive issue of sexual harassment, this landmark ruling reinforces the commitment to creating inclusive and equitable workplaces, where every individual can thrive and contribute to the nation's progress without fear of harassment or discrimination

Vishaka & Others v. State of Rajasthan: The Case that Paved the Way for Addressing Sexual Harassment at Workplaces

In a monumental step towards safeguarding the rights and dignity of women in the workplace, the Supreme Court of India delivered a groundbreaking judgment in the case of Vishaka & Others v. State of Rajasthan in 1997. This landmark decision not only brought the issue of sexual harassment at the workplace into the spotlight but also laid down a comprehensive set of guidelines, known as the Vishaka Guidelines, that would serve as the foundation for future legislation addressing this critical issue.

The Genesis: Seeking Justice for Bhanwari Devi

The case originated from the brutal gang-rape of Bhanwari Devi, a social worker employed in Rajasthan's Bhateri village. Devi's courageous efforts to prevent a child marriage within the community led to her being brutally assaulted and raped by influential members of the village. This horrific incident sparked a nationwide outcry and prompted several women's rights organizations, led by Vishaka and others, to file a Public Interest Litigation (PIL) in the Supreme Court.

Filling the Legislative Vacuum

At the time, India lacked a comprehensive legal framework to address sexual harassment at the workplace. The Supreme Court recognized this legislative vacuum and took the unprecedented step of formulating guidelines to fill the gap. These guidelines, known as the Vishaka Guidelines, were derived from the principles of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to which India is a signatory.

The Vishaka Guidelines: A Comprehensive Framework

The Vishaka Guidelines provided a comprehensive definition of sexual harassment, encompassing both physical and non-physical forms of harassment, including sexually colored remarks, gestures, and unwanted sexual overtures. The guidelines also outlined specific measures for employers to prevent and address incidents of sexual harassment in the workplace.

Key Provisions of the Vishaka Guidelines:

Duty of the Employer: Employers were mandated to take appropriate measures to prevent sexual harassment and provide a safe and secure work environment for women.

Establishment of Complaints Committees: Employers were required to establish Complaints Committees to address complaints of sexual harassment and ensure a fair and impartial inquiry process.

Disciplinary Action: The guidelines specified that appropriate disciplinary action should be taken against any employee found guilty of sexual harassment, including termination of employment.

Awareness and Sensitization: Employers were directed to organize workshops and awareness programs to sensitize employees about the issue of sexual harassment and the guidelines.

Third-Party Harassment: The guidelines extended protection to women employees from sexual harassment by third parties, such as clients or customers, within the workplace premises.

The Lasting Impact of the Vishaka Guidelines

The Vishaka Guidelines were not merely a set of recommendations; they carried the force of law and were binding on all employers in India. These guidelines paved the way for a shift in societal attitudes towards sexual harassment and empowered women to voice their concerns and seek redress.

The Legacy: The Prevention of Sexual Harassment (POSH) Act, 2013

While the Vishaka Guidelines were a significant step forward, the need for a comprehensive legislation addressing sexual harassment at the workplace became increasingly apparent. In 2013, the Indian Parliament enacted the Prevention of Sexual Harassment (POSH) Act, which drew heavily from the principles and provisions outlined in the Vishaka Guidelines.

The POSH Act formalized and expanded upon the guidelines, providing a statutory framework for addressing sexual harassment in the workplace. It mandated the constitution of Internal Complaints Committees (ICCs) in every organization, established clear procedures for filing and investigating complaints, and prescribed penalties for non-compliance.

The legacy of the Vishaka case cannot be overstated. It not only brought about a paradigm shift in the legal landscape but also sparked a nationwide conversation about the importance of creating safe and inclusive workplaces for women. The Vishaka Guidelines remain a testament to the Supreme Court's commitment to upholding the fundamental rights and dignity of women, paving the way for a more equitable and just society.

Conciliation and Posh act 2013

Conciliation is a method of resolving a conflict between parties by the use of a mediator. Only if the aggrieved party demands it, the Internal Complaints Committee (ICC) will facilitate conciliation as a means of resolving workplace sexual assault complaints.

Before conducting an investigation under section 11, the ICC should attempt to resolve the dispute between the aggrieved woman and the respondent by conciliation. It should be remembered that the respondent has no right to request conciliation) and that “no monetary settlement” shall be used as a ground for conciliation. Where a settlement has been reached, the ICC shall report the terms of the agreement and forward them to the employer, who shall proceed in accordance with the advice.

The ICC shall supply the aggrieved woman and the respondent with copies of the resolution as reported.

Where a settlement is arrived at, no further inquiry shall be conducted by the ICC.  Conciliation is a mechanism used by the ICC to offer a substantive approach to problems posed by complainants in a reasonable and impartial manner. A settlement, such as an oral/written apology or admission of guilt, to prevent a protracted court proceeding that may be costly, inconvenient, and frustrating.

There is no prescribed procedure by the Act, so the ICC has freedom to conduct it the way it seems appropriate and follow the principles of natural justice and gender sensitivity. 

Suggested procedure to be followed:  Only carefully examined and deemed minor offenses should be solved through conciliation and major offenses (As decided by ICC to be serious) should not be attempted by conciliation.

1. A written complaint by the victim/complainant and a written request for conciliation (either through mail or written complaint) is a must.  

2. Complainant may in such request, set out her terms for conciliation (cannot include terms for monetary settlement). 

3. The ICC has to provide a copy of the complaint and such terms of conciliation as requested by the complainant to the Respondent (alleged harasser).  

4. The ICC should choose an appropriate and comfortable venue for both the parties to initiate the talk. 

5. The conciliation has to be conducted by any member of the ICC chosen by the presiding officer. The external consultant may oversee the proceedings to eliminate any sort of bias. 

6. ICC has to document details of meeting between the committee representatives, the complainant and respondent (alleged harasser) in the conciliation proceeding.  

7. Once a satisfactory settlement has been arrived at, it has to be documented and signed by all the parties who were part of the conciliation procedure. 

8. A copy of the settlement has to be given to the complainant, the respondent, the employer and one copy to be filed by the ICC for their records. 

9. Any information related to conciliation in a matter of sexual harassment shall not be published, communicated or made known to the public, press and media. The settlement reached between parties i.e. ICC members, Complainant, Respondent (alleged harasser) shall remain utmost confidential.