ANALYSIS OF “DR. SOHAIL MALIK V. UNION OF INDIA & ANR

Abstract

This article delves into the legal intricacies surrounding the landmark case of Dr. Sohail Malik v. Union of India[1], a pivotal legal battle addressing the prevention of sexual harassment of women in the workplace. The case, which unfolded against the backdrop of evolving societal norms and legislative advancements, stands as a critical milestone in the jurisprudence of workplace safety and gender justice. The article explores the implications of the judgment on the development of workplace policies, the role of internal grievance mechanisms, and the obligations of employers in ensuring a safe and harassment-free environment. It also delves into the socio-legal implications of the case, shedding light on its potential impact on societal perceptions, attitudes, and the empowerment of women in professional spheres.

The objective of the article is to offer a nuanced perspective on the Dr. Sohail Malik case, underscoring its significance in shaping the discourse on preventing and addressing sexual harassment at workplaces in India. The article contributes to the ongoing dialogue surrounding gender justice, workplace equality, and the evolving role of the judiciary in fostering a secure and inclusive professional environment.

Keywords

Sexual harassment, Complaint, professional environment, Gender justice, workplace, Judgement.

Introduction

Sexual harassment is a pervasive and deeply entrenched issue, transcends geographical, cultural, and socioeconomic boundaries, affecting individuals across various spheres of life. In recognition of the urgent need to address this issue within the workplace, countries worldwide have implemented legislation to safeguard individuals from the detrimental effects of harassment and create environments that foster dignity, respect, and equality. One such crucial legal framework is the Prevention of Sexual Harassment Act which aims to empower victims, promote awareness, and ensure that workplaces become spaces free from the scourge of sexual harassment.

The legal landscape surrounding workplace sexual harassment has undergone transformative shifts, with landmark cases serving as catalysts for change. Among these, the case of Dr. Sohail Malik v. Union of India emerges as a pivotal moment, casting a spotlight on the complex intersection of law, gender dynamics, and professional environments. This article embarks on a comprehensive exploration of the Dr. Sohail Malik case, unravelling its intricacies and delving into its profound implications for the prevention of sexual harassment of women at workplaces in India. This case holds a specific landmark spot among the various cases on sexual harassment against women at workplaces.

Facts of the Case

The facts of the case are as follows:

The case at hand is a complaint made by an officer working at the Department of Food and Public Distribution, Ministry of consumer and Public Distribution. The complaint stated that the petitioner, namely, Dr. Sohail Malik had sexually harassed the former. The petitioner is a 2010 batch Indian Revenue Officer.
The complaint was first presented before the Internal Complaint Committee which was constituted at the workplace under Section 9 of The Prevention the Sexual Harassment of women at workplace.
The ICC scheduled a meeting for hearing of the complaint on 22^nd June of 2023 and notified about the same on 13 June, 2023 instructing the petitioner to appear on the said date.
The petitioner instead of appearing for the scheduled meeting moved the learned Tribunal “Central Administrative Tribunal, Principal Bench, New Delhi” and questioned the jurisdiction of the ICC to examine the complaint.
The learned Tribunal dismissed the application and rejected the said challenge. The petitioner then moved the High Court of Delhi by filing a writ petition.

Issue Involved

Whether a women who is an employee of one of the Government department of India, on being sexually harassed by an employee of another department would be entitled to the provisions contained in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013?

Arguments by the Petitioner

The counsel for the petitioner contended that if the ICC of the complainant’s department investigates the allegations against the petitioner, a problem arises. According to Section 13 of the POSH Act, the ICC’s report must be sent to the “employer” for further action, through disciplinary proceedings. However, the counsel asserts that the “employer” defined in Section 2(g) is the Head of the Department of the complainant, who has no disciplinary authority over the petitioner. Therefore, he claims that the ICC’s report would be unenforceable, as no action could be taken based on it and for the Act to apply, the workplace of the complaint and the alleged perpetrator of sexual harassment must be the same.

Petitioners also relies on the preamble and Section 17 of the Act to protect women from sexual harassment at work, to prevent and address complaints of sexual harassment, and for other related or incidental purposes. Whereas sexual harassment violates a woman’s fundamental rights to equality under Articles 14 and 15 of the Indian Constitution, her right to life and the right to live with dignity under Article 21 of the Constitution, and her right to practice any profession or to carry on any trade, business, or occupation that includes the right to a safe environment free from sexual harassment.

Respondent’s Contentions

The Respondent counsel stated that upon the conclusion of the inquiry the Internal Committee or the Local Committee, depending on the situation, must submit a report of its findings to the employer or the District Officer within ten days from the completion of the inquiry. This report should be shared with the concerned parties. If the Internal Committee or the Local Committee determines that the allegation against the respondent is unsubstantiated, it should advise the employer and the District Officer that no action is necessary. Conversely, if the committee finds the allegation to be proven, it should recommend appropriate action to the employer or the District Officer, as applicable. The respondent counsel states that if the arguments of the petitioner is considered, it would imply that a female officer facing sexual harassment from a colleague within her own department has the option to seek relief under the POSH Act. However, no such remedy would be accessible if the harassment is committed by an officer from a different department, solely due to the fact that he operates under a different “employer” and is not under the disciplinary authority of the department where the complainant is employed.

Analysis of the Court

The court determined that the Prevention of Sexual Harassment (POSH) Act does not exempt men from consequences if they sexually harass women in offices different from their own workplaces. It clarified that Section 11(1) of the POSH Act is not limited to situations where the accused, facing sexual harassment allegations, is an employee of the same workplace as the complainant. This section specifies that the accused employee before an Internal Complaints Committee (ICC) should be an “employee,” and in the present case, the petitioner qualified as an employee, albeit in another department of the Government of India.

The court also emphasized that the definition of “employer” in Section 2(g) of the POSH Act is not confined to “an employee who complains of sexual harassment.” It should be interpreted to encompass the employer of the workplace where the alleged harasser is employed. The court concluded that there is no prohibition on forwarding the ICC’s recommendations from the complainant’s workplace to a different employer who has disciplinary authority over the employee accused of harassment. Such an employer can take action based on the ICC’s report.

Additionally, the court noted that Section 19(h) of the POSH Act, outlining the duties of an employer, permits a complainant to initiate action in the workplace even if the accused employee is not an “employee” of the complainant’s workplace.

Ruling and Judgment

The court employed the principle of purposive construction to interpret the POSH (Prevention of Sexual Harassment) Act. It noted that the POSH Act is essentially a form of “ameliorative social welfare legislation.” This means that the interpretation of the POSH Act should not thwart its objectives or lead to a blatantly arbitrary or unjust outcome. The court highlighted that, among other things, the POSH Act aims to safeguard women’s rights to equality, life, and liberty, preventing them from being victims of gender-specific violence. The Act also strives to ensure a secure working environment for every woman, shielding them from any form of sexual harassment. The court emphasized that all the objectives of the POSH Act are impartial to the identity of the harasser, and even a woman’s apprehension that her workplace safety might be compromised goes against the spirit of the Constitution.

The court dismissed the writ petition and preponed the hearing before the ICC to 4^th July, 2023. A right was provided to the petitioner in case he needed some more time for preparing his statements and presentation before the committee.

Conclusion

In the case, the focus is on the interpretation of the Sexual Harassment of Women at Workplace Act in the context of sexual harassment cases occurring in offices other than the complainant’s workplace.

Scope of the SHW Act: The text emphasizes that the POSH Act doesn’t limit its application to cases where a woman is harassed by another employee within her own office. It asserts that there’s no provision in the POSH Act that excludes its application when the alleged harasser is employed elsewhere.
Section 11(1) Examination: The discussion centres on Section 11(1) of the POSH Act, and it agrees with the tribunal’s finding that this provision doesn’t restrict its application to situations where the accused, facing sexual harassment allegations, is an employee of the same department as the complainant.
Section 13 and Employer’s Role: The petitioner’s contention, based on Section 13, is that the Internal Complaints Committee (ICC) must forward its decision to the employer for necessary action. However, the concern is raised that if the employer, in this case, the Head of the Office where the complainant works, lacks disciplinary control over the alleged harasser, Section 13 would become inoperative.
Geographical Limitations: The text counters any interpretation that suggests geographical limitations in the POSH Act. It argues against reading any implicit exceptions that would exclude cases where the accused is employed in a different location.
Preponement of ICC Hearing: The petitioner also points out a procedural issue, stating that the ICC hearing date has been rescheduled earlier than initially fixed. He requested the restoration of the original date and asked for additional time for to appear before the ICC.

In summary, the analysis underscores the broad applicability of the POSH Act to cases of sexual harassment occurring in various workplaces, refuting any limitations based on the location of the alleged harasser’s employment. The text also addresses specific legal provisions such as Section 11(1) and Section 13 while highlighting concerns about the employer’s role when lacking disciplinary control over the accused. Additionally, procedural issues related to the preponement of the ICC hearing are brought to attention.

References

https://www.lexology.com/library/ Last visited on 24/01/2023
https://www.casemine.com/judgement/ Last visited on 24/01/2024
https://www.mondaq.com/india/employment-litigation-tribunals/ Last visited on 24/01/2024

[1] Dr. Sohail Malik v. Union of India, W.P.(C) 8624/2023

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.