POSH COMPLIANCE: A LEGAL MANDATE, NOT A MERE FORMALITY!!

Sexual harassment at the workplace is not just a compliance requirement, it is a legal and ethical obligation. The POSH Act, 2013, mandates organizations to prevent, prohibit, and redress workplace sexual harassment effectively. However, compliance goes beyond merely having a policy in place; it requires robust implementation, adherence to due process, and fostering a culture of accountability. The Supreme Court’s ruling in Aureliano Fernandes v. State of Goa (2023) underscores the critical importance of ensuring that Internal Committee (IC) inquiries are conducted fairly and in accordance with the principles of natural justice. Failure to do so can lead to judicial intervention, legal setbacks, and reputational harm.

Case Background: Aureliano Fernandes v. State of Goa (2023)

Dr. Aureliano Fernandes, a senior professor and former Head of the Department of Political Science at Goa University, was accused of sexual harassment by multiple female students. The complaints against him included inappropriate behaviour, verbal misconduct, and the creation of a hostile work environment.

Following these allegations, the IC of Goa University initiated an inquiry under the POSH Act, 2013. The IC found Fernandes guilty and recommended his termination, a decision that was subsequently upheld by the Executive Council of Goa University, leading to his dismissal.

Challenging the decision, Fernandes filed a writ petition before the Bombay High Court, arguing that his right to a fair hearing had been violated. His primary contentions were:
He was not given an adequate opportunity to defend himself, violating the principles of natural justice.
The inquiry was completed in just 39 days, raising concerns over procedural fairness, as the POSH Act prescribes a 90-day timeframe.
The IC relied on the outdated Vishaka Guidelines instead of the POSH Act, 2013, which offers a structured legal framework for sexual harassment cases.
The IC blurred its role, functioning as both a fact-finding body and a disciplinary authority, leading to a miscarriage of justice.

The Bombay High Court dismissed his petition, holding that due process had been followed. Unsatisfied, Fernandes appealed to the Supreme Court, arguing that the entire process was flawed and violated his fundamental rights.

Supreme Court’s Observations

Key Judicial Findings:

The Supreme Court quashed the IC’s findings and set aside Fernandes’ termination, citing serious procedural lapses in the inquiry process. It reiterated the fundamental principles of procedural fairness and made the following key observations:

Violation of Natural Justice Principles
The Court emphasized that natural justice cannot be compromised in the name of efficiency.
It held: “Justice must not only be done but should manifestly be seen to be done. The principles of audi alteram partem (hear the other side) could not have been thrown to the winds in this cavalier manner.”
Undue Haste in the Inquiry Process
The Court observed that the POSH Act prescribes a 90-day timeframe for completing inquiries, yet the IC rushed through the process in 39 days, casting doubt on its fairness.
The Court stated: “The inquiry was wrapped up in flat 39 days, demonstrating undue haste… The tearing hurry in which the Committee functioned cannot justify curtailment of the right of the appellant to a fair hearing.”
Failure to Differentiate Between Fact-Finding & Disciplinary Authority
The IC’s primary role is to conduct a neutral fact-finding inquiry and not to impose disciplinary sanctions. However, in this case, the IC’s recommendations were treated as conclusive.
The Court noted: “A fair procedure alone can guarantee a fair outcome… The anxiety of the Committee to be fair to the victims ended up causing them greater harm.”
Non-Compliance with the POSH Act, 2013
Despite the enactment of the POSH Act, 2013, the IC continued relying on the Vishaka Guidelines, failing to follow the detailed procedural safeguards of the POSH Act.

Binding Legal Principle

The Supreme Court reaffirmed the legal principle that Internal Committees must strictly adhere to the procedural mandates of the POSH Act and ensure fairness, neutrality, and compliance with natural justice principles. It ruled that any deviation from these principles can lead to judicial intervention and the quashing of findings.

Supreme Court’s Directions:

The case was remanded back to the IC, directing it to restart the inquiry from a specific stage.
The IC was instructed to provide Fernandes with a fair opportunity to defend himself.
The university was ordered to complete the entire process within three months.

KEY TAKEAWAYS FROM THE AURELIANO FERNANDES CASE

The Supreme Court’s ruling highlights several crucial lessons for organizations and Internal Committees:

ICs’ Must Follow Due Process - Rushed proceedings compromise fairness and can lead to judicial intervention.
Fairness Applies to Both Complainants & Respondents - While victims' rights must be protected, due process must also be ensured for the accused.
IC’s Are Fact-Finding Bodies, Not Disciplinary Authorities - They cannot impose penalties or function as adjudicating bodies.
POSH Act Compliance Is Non-Negotiable- The IC relied on the Vishaka Guidelines, failing to align its procedures with the POSH Act, which provides a more structured legal framework.

A flawed IC inquiry can result in:

Overturned decisions
Reputational damage
Legal consequences

The Aureliano Fernandes case is a wake-up call for organizations. POSH compliance is not just a legal necessity. It reflects an organization’s values and commitment to workplace safety.

Organizations must go beyond surface-level compliance and actively foster a workplace culture that is safe, just, and accountable. The goal should be to avoid legal liability and ensure that every employee, regardless of gender, feels respected and protected. To ensure a fair, transparent, and legally sound framework, organizations must:

Conduct regular training for IC members
Ensure procedural fairness in all inquiries
Follow the POSH Act timelines and mandates
Maintain confidentiality and prevent retaliation

AUTHOR: Advocate Aprajita Vatsa

**POSH Advisor & External Committee Member**

Aprajita Vatsa is a full-time POSH Advisor at Silver Oak Health. She is committed to the cause of harassment-free workplaces. A registered advocate since 2020, with a B.A.LL.B from Savitribai Phule Pune University, she brings three years of legal expertise, specializing in POSH compliance, training, and intervention.

POSH COMPLIANCE: A LEGAL MANDATE, NOT A MERE FORMALITY!!

Case Background: Aureliano Fernandes v. State of Goa (2023)

Following these allegations, the IC of Goa University initiated an inquiry under the POSH Act, 2013. The IC found Fernandes guilty and recommended his termination, a decision that was subsequently upheld by the Executive Council of Goa University, leading to his dismissal.

Challenging the decision, Fernandes filed a writ petition before the Bombay High Court, arguing that his right to a fair hearing had been violated. His primary contentions were:

He was not given an adequate opportunity to defend himself, violating the principles of natural justice.

The inquiry was completed in just 39 days, raising concerns over procedural fairness, as the POSH Act prescribes a 90-day timeframe.

The IC relied on the outdated Vishaka Guidelines instead of the POSH Act, 2013, which offers a structured legal framework for sexual harassment cases.

The IC blurred its role, functioning as both a fact-finding body and a disciplinary authority, leading to a miscarriage of justice.

The Bombay High Court dismissed his petition, holding that due process had been followed. Unsatisfied, Fernandes appealed to the Supreme Court, arguing that the entire process was flawed and violated his fundamental rights.

Supreme Court’s Observations

Key Judicial Findings:

The Supreme Court quashed the IC’s findings and set aside Fernandes’ termination, citing serious procedural lapses in the inquiry process. It reiterated the fundamental principles of procedural fairness and made the following key observations:

Violation of Natural Justice Principles

The Court emphasized that natural justice cannot be compromised in the name of efficiency.

It held: “Justice must not only be done but should manifestly be seen to be done. The principles of audi alteram partem (hear the other side) could not have been thrown to the winds in this cavalier manner.”

Undue Haste in the Inquiry Process

The Court observed that the POSH Act prescribes a 90-day timeframe for completing inquiries, yet the IC rushed through the process in 39 days, casting doubt on its fairness.

The Court stated: “The inquiry was wrapped up in flat 39 days, demonstrating undue haste… The tearing hurry in which the Committee functioned cannot justify curtailment of the right of the appellant to a fair hearing.”

Failure to Differentiate Between Fact-Finding & Disciplinary Authority

The IC’s primary role is to conduct a neutral fact-finding inquiry and not to impose disciplinary sanctions. However, in this case, the IC’s recommendations were treated as conclusive.

The Court noted: “A fair procedure alone can guarantee a fair outcome… The anxiety of the Committee to be fair to the victims ended up causing them greater harm.”

Non-Compliance with the POSH Act, 2013

Despite the enactment of the POSH Act, 2013, the IC continued relying on the Vishaka Guidelines, failing to follow the detailed procedural safeguards of the POSH Act.

Binding Legal Principle

Supreme Court’s Directions:

The case was remanded back to the IC, directing it to restart the inquiry from a specific stage.

The IC was instructed to provide Fernandes with a fair opportunity to defend himself.

The university was ordered to complete the entire process within three months.

KEY TAKEAWAYS FROM THE AURELIANO FERNANDES CASE

The Supreme Court’s ruling highlights several crucial lessons for organizations and Internal Committees:

ICs’ Must Follow Due Process - Rushed proceedings compromise fairness and can lead to judicial intervention.

Fairness Applies to Both Complainants & Respondents - While victims' rights must be protected, due process must also be ensured for the accused.

IC’s Are Fact-Finding Bodies, Not Disciplinary Authorities - They cannot impose penalties or function as adjudicating bodies.

POSH Act Compliance Is Non-Negotiable- The IC relied on the Vishaka Guidelines, failing to align its procedures with the POSH Act, which provides a more structured legal framework.

A flawed IC inquiry can result in:

Overturned decisions

Reputational damage

Legal consequences

Conduct regular training for IC members

Ensure procedural fairness in all inquiries

Follow the POSH Act timelines and mandates

Maintain confidentiality and prevent retaliation

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