Will "Private Function" Fall Under Definition Of 'Workplace' Of PoSH Act? : Sikkim HC To Examine

The Sikkim High Court recently observed that it shall examine whether an incident of sexual harassment that occurred at a "Private Marriage Function in a private hotel" will fall within the definition of "Workplace", as stipulated under section 2(o) of the Sexual Harassment (Prevention, Prohibition & Redressal) At Workplace Act, 2013 (PoSH Act).

"Having examined the definition of the word "workplace" in the said Act, it seems that the petitioner does have a strong arguable point on jurisdiction or the lack of it. Whether the broad interpretation of "workplace" would bring within its ambit attending a private marriage function in a private hotel, is a question which may have to be examined" - Sikkim HC

In light of this, the court directed that the termination order passed against a Professor of Sikkim University, against whom allegations of sexual harassment were made out by the Internal Complaints Committee (IC) will not be effectuated during pendency of a writ petition filed by him challenging the same.

A single bench of Justice Bhaskar Raj Pradhan admitted the writ petition filed by the Professor, Department of Mass Communication challenging the show-cause notice issued against him, pursuant to the inquiry report of the IC on allegations of sexual harassment by a student on grounds of jurisdiction.

In light of this, the court has observed that if Court was to ultimately hold that the IC of the University had no jurisdiction to proceed with the inquiry (due to lack of jurisdiction thereof under the Act), the consequence may be that the impugned termination may have to be rendered bad in law as well.

The applicant-professor has sought directions upon the respondents to not give any further effect to the termination order and to join his duties as a Professor and pay him his salaries until the final disposal of the case.

He has also stated that the IC lacked jurisdiction to conduct an inquiry into allegations of sexual harassment by the student as the incident occurred outside the ambit of "Workplace" as defined under PoSH Act. Further, Counsel for the applicant-professor argued that as both professor & student had not gone there arising out of or during the course of employment or studies. To enunciate this, the Counsel relied on sections 2(o)(vi) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 as well as Regulations 2(o) & 2(c) of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015.

The University, Executive Chancellor as well as the IC, while opposing the said prayer of the applicant averred that the the matter was dealt with by following "due process of law" & "adequate opportunity" was given to the professor. Further to this, the University stated that as the complainant remains a student of the same Department of which the applicant was a professor, "reinstating him would make the victim vulnerable and create a hostile atmosphere".

Moreover, the counsel argued that the definition of "workplace" must be given a wide interpretation. According to him, in section 2(o)(v) of the said Act, "any place" visited by an employee "arising out of" or "during the course of employment" including transportation by the employer for undertaking such journey, has to be included in the definition of "workplace" & that the place where sexual harassment takes place need not necessarily be an actual "workplace" in relation to an aggrieved woman, adding that the professor had during the course of his employment with the respondent no.1 (University) visited the hotel for a wedding reception where the incident is said to have taken place.

The learned Senior Counsel relies upon the judgment of the Supreme Court in General Manager B.E.S.T Undertaking, Bombay vs. Mrs. Agnes, to urge that the court must apply the concept of notional extension to broaden the concept of the words "during the course of employment".

The court has however stated that the prayer of the applicant to join his duties and payment of salaries would not be granted this interim stage.

The case is listed for further hearing on October 4, 2020.

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