PoSH Case Law 1 ICC Recommendations

Gaurav Jain vs Hindustan Latex Family Planning ... on 7 January, 2015

argued before this Court are the aspects pertaining to the alleged violation of the rules and that the findings arrived at are perverse ie evidence led does not justify the findings and conclusions of the ICC.

5. The following arguments have been urged on behalf of the petitioner:-

(i) The ICC of the respondent no.1/employer had no jurisdiction to enquire into the complaint inasmuch as the complaint had to be enquired into only by respondent no.3/National AIDS Control Organization (NACO) with whom the petitioner was posted.

(ii) ICC has recommended punishment of removal of the petitioner from services which is against the rules of the employer-organization.

(iii) The complaint made by the complainant was motivated and malafide and which becomes clear from the fact that it was made after around two months of the trip at Hyderabad and at the stage when the contract of the complainant with the respondent no.1 was to expire.

6. Let us take each of the arguments as urged on behalf of the petitioner and deal with the same.

(i) So far as the first argument that not the respondent no.1/employer through its ICC, but the respondent no.3/NACO had the necessary jurisdiction to enquire into the complaint, the argument is ex facie misconceived because it is not disputed that the employer of the petitioner is indubitably the respondent no.1. Surely the employer is entitled to look into the complaints made against its employees and more so because the Act specifically talks of the employer and the ICC of the employer taking action against the employee with respect to a complaint made by an employee of the employer-organization. Reliance placed by the petitioner upon the provision of Section 2(g) (ii) of the Act that it is the management at the work place which controls the work place only has the power to take action on complaint of sexual harassment, is a misconceived argument because employer is exhaustively defined by Section 2(g) of the Act and the provision of Section 2(g) of the Act contains four sub-clauses and employer can fall into any of the four sub-clauses. More importantly, once the employer is covered under Section 2(g)(i) of the Act, the provision of Section 2(g)(ii) of the Act does not apply as this latter provision itself states that the same will apply only if the employer is not one already covered under Section 2(g)(i) of the Act. The object of Section 2(g)(ii) of the Act is to elucidate and enlarge the scope of employer and not narrow the scope of Section 2(g)(i) of the Act ie in case an employer is not covered under Section 2(g)(i) of the Act, the employer can fall under Section 2(g)(ii) of the Act. This is clarified by Section 2(g)(iii) of the Act which provides that the person who performs the contractual obligations to the employee ie payment of salary etc, would be the employer. I therefore do not find anything in the provision of sub-clause 2(g) (ii) of the Act relied upon by the petitioner which states that an actual employer cannot take action against the employee once there are allegations of sexual harassment alleged against the employee. The first argument urged on behalf of the petitioner is therefore rejected.

(ii) The second argument urged on behalf of the petitioner that ICC had no power to make recommendation for termination of services of the petitioner, is once again a misconceived

Indian Kanoon - http://indiankanoon.org/doc/51542087/


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