Delay In Filing Appeal U/S 18 Of POSH Act Can Be Condoned U/S 5 Limitation Act: Delhi High Court

The Delhi High Court has observed that under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act/ SHW Act), a victim's delay in filing appeal against the inquiry report can be condoned if such a delay is properly explained.

Justice C Hari Shankar added that sec. 5 of the Limitation Act (which provides for extension of prescribed period in certain cases) would apply in respect of appeals which may be sought to be preferred under sec. 18 of the Sexual Harassment at Workplace Act.

"It would be completely antithetical and inimical to the very scope and purpose of the SHW Act, if a Court were to refuse to condone a delay of as little as 36 days in an alleged victim of sexual harassment preferring an appeal under Section 18 against the report of the inquiry committee. Such a delay – if properly explained – should, clearly, not stand in the way of the appeal of the alleged victim of sexual harassment being decided on merits, by the authority competent to do so," the Court observed.

Sec. 18 of the Act states that any person aggrieved from the recommendations made by the inquiry committee or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the service rules applicable to the said person or as per the law applicable.

Under the Act, it has been provided that on the completion of an inquiry, the Internal Committee or the Local Committee, shall provide a report of its findings to the employer, or the District Officer within a period of ten days from the date of completion of the inquiry.

The facts of the case are that the woman (Respondent no. 1) had accused Respondent no. 2 of having harassed her, sexually, at the workplace. The complaint was referred to an internal complaints committee of the petitioner company which, vide inquiry report dated 24th May 2016, exonerated the respondent no. 2.

The woman had then appealed against the report under sec. 18 of the Act to the learned Central Government Industrial Tribunal. The impugned order, dated 3rd March 2022, passed by the Industrial Tribunal condoned the delay of 36 days in the preferring of the appeal.

Aggrieved by the said order, the petitioner company had challenged the same invoking Article 227 of the Constitution of India.

The question which arose for High Court's consideration was whether the Industrial Tribunal could have condoned the delay in filing of the appeal under sec. 18 of the Sexual Harassment at Workplace Act?

The submission of the petitioner company was that since no provision for condonation of delay is to be found in sec. 18 of the Act, and as sec. 18(2) uses the word "shall", the Tribunal could not have condoned the delay in filing of appeal.

"So scrutinized, it is clear that Section 18(2) of the SHW Act postulates a period of limitation, for filing an appeal under Section 18(1), not to be found in the Limitation Act. Equally, it is clear that no express or implied exclusion of the Limitation Act, and its provisions, is to be found anywhere in the SHW Act," the Court noted.

As the petitioner company relied on the decision of Supreme Court in Commissioner of Customs & Central Excise v. Hongo India Pvt. Ltd, the Court was of the view that the said decision dealt with the issue of whether delay in filing of an application for a direction to the Customs, Excise and Service Tax Appellate Tribunal to refer to the High Court, a question of law arising from an order passed by it, under sec. 35-H of the Central Excise Act, 1944, was condonable.

"Unlike the Central Excise Act, which specifically contemplated and provided for condonation of delay under other provisions, but did not so provide in Section 35-H, there is no provision at all in the SHW Act, providing for condonation of delay. In such circumstances, Hongo India cannot be treated as an authority which proscribes recourse to Section 5 of the Limitation Act, where there is delay in preferring in appeal under Section 18 of the SHW Act," the Court observed.

It added "The SHW Act is an ameliorative statute, intended to redress a serious social evil. It cannot be gainsaid that victims of sexual harassment at the workplace suffer untold trauma, mental, physical and spiritual."

The Court thus agreed with the observations made by the Industrial Tribunal that a victim of sexual harassment remains in a state of trauma and it cannot be expected that she would immediately rush to a Court seeking appellate remedies.

However, the Court added "Having said that, it is clarified that these observations are only intended to justify the power of condonation of delay, which the learned IT has exercised. They do not, in any manner, amount to an expression of opinion, one way or the other, on the allegations of sexual harassment forming subject matter of proceedings in the present case. They should not, therefore, influence the learned IT in taking a dispassionate view on the appeal filed by the respondent."

Upholding the impugned order, the Court accordingly dismissed the plea.

Case Title: DB CORP LTD v. SHAILJA NAQVI & ORS.

Citation: 2022 LiveLaw (Del) 713

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