By: Soumili Kundu
INTRODUCTION
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter ‘POSH ACT’) has been enacted to provide a safe and sexual harassment free workplace to every woman. The cornerstones of the POSH Act are the Internal Committees (hereinafter ‘IC’) and the Local Committees which have the mandate to enforce the provisions of the POSH Act. Further, it is mandatory for every employer employing 10 or more workers to establish an IC.
The aforesaid mandate seems straightforward in the context of organisations and employers operating from one location. Nevertheless, complexities arise when we start applying these provisions in the context of organisations with multiple branches spread across different locations. A very pertinent question which arises in this respect is, whether an IC is compulsory to be constituted at each branch of an organisation operating at different locations with 10 or more workers or can the employer establish one common IC with common members for all branches of the organisations.
At first glance, the answer to this seems to be provided in the POSH Act itself as the proviso to Section 4(1) of the POSH Act clearly states that an IC is mandatory to be constituted at “all administrative units or offices” when the administrative units are located at different places. This clearly shows that the legislative intent is to prohibit the establishment of a common IC for different branches of the same organisation. However, the aim of this article is to analyse how the judiciary has dealt with the issue of establishment of a common IC and what are the practical challenges associated with such a mandate of constitution of separate ICs for each branch with 10 or more employees.
JUDICIAL INTERPRETATION OF COMMON ICs
Even though the POSH Act, in very clear terms, mandates the establishment of different ICs for different administrative units, multiple HCs have permitted the formation of a common IC for different branches of the same organisation in certain circumstances.
The Bombay HC, in the case of Jaya Kodate vs Rashtrasant Tukdoji Maharaj Nagpur University, dealt with a case where the Respondents had a junior and senior college but one of the employees of the junior college was made a member in an IC constituted for sexual harassment offences perpetrated in the senior college. It was argued by the Respondents that both the colleges constituted the same “workplace” under section 2(o) of the POSH Act and thus a common IC should be allowed.
The Bombay HC observed that the service conditions of the staff of both the colleges were governed by different rules, and the recruitment process of both the colleges was also different. Thus, they are distinct entities and ideally there needs to be two different ICs for both these establishments. Nevertheless, in this case both the colleges were on the same premises and the staff and students used the same facilities. Considering the above, the court held that the definition of “workplace” does not contain a bar against providing a single IC for such common workplaces. At most, the definition could “only desire a separate ICC for distinct workplaces when the same are geographically separate or inconveniently located”.
However, the Delhi HC, in Ruchika Singh Chabbra vs. Air France, has liberated this construction even further.
In this case, the aggrieved woman was employed and sexually harassed by one of the employees in the Gurgaon Office of Air France, but a common IC was constituted for both its offices in Gurgaon and Delhi. A writ petition was filed challenging its constitution. However, the single judge of the Delhi HC refused to entertain the petition on the ground that there was lack of territorial jurisdiction and that the cause of action did not arise in Delhi. Thus, an LPA was filed before a division bench of the Court challenging the order of the single judge. The division bench of the Delhi HC, relying on this very fact that a common IC had been established, conferred the jurisdiction of the Delhi HC and held that “in light of the fact that the ICC constituted by Air France is for both the Delhi and Gurgaon office, the jurisdiction of the court over the proceedings of the ICC has been established”.
Thus, the division bench of Delhi HC had no objections with a common IC being established for different offices of the same organisation, even when they were located in separate geographical regions. Rather it had relied on that fact to confer itself with the jurisdiction to hear the case.
The above cases clearly provide a different interpretation to the mandatory requirements of constitution of separate ICs for different administrative units. However, on the other end of the spectrum, there are cases like Punjab and Sind Bank and others vs Mrs. Durgesh Kuwar, wherein the SC observed that “Section 4 of the Act requires the constitution of an ICC at all the administrative units or offices of the workplace”. Furthermore, in Women in Cinema Collective vs state of Kerala,the Kerala HC observed that “if the employer has different offices or administrative units of the workplace located at different places or divisional or sub-divisional level, an Internal Complaints Committee shall be constituted at all administrative units or offices. However, it needs to be kept in mind that in both these cases, the facts were not in relation to the establishment of a common IC and no arguments were presented in this regard. Nevertheless, the observations of the court do have persuasive value since they represent the interpretation of the court in context of the provisions of the POSH Act.
What can be seen is that although there is a clear mandate of establishments of separate ICs for separate administrative units, the courts have not hesitated in allowing the constitution of common ICs. Further considering the interpretation of the Bombay HC, if the different administrative units share common premises and facilities, there can be a common IC for such administrative units.
In context of the above position of law, it becomes essential to evaluate whether such a position is desirable and whether there is a need to allow for the constitution of common ICs for different branches and administrative units.
THE WAY FORWARD: A PRACTICAL APPROACH
What needs to be comprehended is that if there is a large organisation, it might be comfortable with setting up committees in different locations because of the sheer number of employees they have at each unit. But if there is a small/medium organisation, it is difficult to have an IC at every location since the number of employees present at each location is significantly lesser.
An IC needs a minimum of 4 members in the panel and these members should have legal experience. At locations where only 10-15 workers have been employed, a constitution of a separate IC becomes difficult as a small branch might not have such experienced workers. Further, half of the total number of the IC members need to be women. However, there may be administrative units where only a single/no female employee exists.
These practical issues were also raised before the Ministry of Women and Child Development by the Parliamentary Standing Committee on the POSH Bill, wherein the Ministry had responded by saying that in case an organisation is facing difficulty in constituting separate ICs for different branches, a common IC may be established for different administrative units at the headquarters of the organisation with some members from each branch. However, despite receiving a favourable reaction, no modification was made when the POSH Act was ultimately implemented.
Considering the practical difficulties in constitution of separate ICs at each branch, the approach taken by the Bombay and Delhi HC in allowing for constitution of a common IC is necessary to be followed. However, the scope of such common ICs should not be limited to administrative units operating at the same geographical location. Such common ICs should be allowed in all locations where it is not practicable to constitute separate ICs. Thus, it is desirable to bring in a legislative amendment in this regard to amend the proviso of section 4(1) of the POSH Act to introduce the word “as far as practicable” at the beginning of the proviso.
If the organisations are allowed a common IC across separate offices, it can be structured in such a way that when a complaint comes up from a particular branch, a person from that branch can be nominated to the IC for representation from the respective branch.
Another way of structuring the IC could be to have a pool of large number of members for the IC, representing a wide variety of offices, and whenever a complaint comes up, one may co-opt a smaller number of members from that larger IC pool to form a smaller IC.
Such common ICs do away with the problem of providing its members with the experience in handling harassment cases and ensure representation from the branch offices where the complaint has arisen. They also deal with the problem related to non-availability of women members for constituting ICs.
CONCLUSION
The POSH Act is a landmark legislation in protection of women against sexual harassment. It places a lot of duties on the employers to prevent and redress the issues of sexual harassment faced by their employees. Nevertheless, the IC mechanism needs to be as practical as possible to ensure the smooth functioning of the POSH Act. Making a provision for common ICs would thus be a step in the right direction for protection of women.
(Soumili Kundu is a law undergraduate at Lloyd Law College, Greater Noid. The author may be contacted via mail at miliofficial648@gmail.com)
Cite as: Soumili Kundu, Analysing the Law around Constitution of Common ICs: A Practical Approach, 24 March 2024, <https://rmlnlulawreview.com/2024/03/24/analysing-the-law-around-constitution-of-common-ics-a-practical-approach/> date of access.
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