Non-Conformity to UGC Regulation in Constitution of POSH Committee permissible in Educational Institution if Central Act has been followed: HC
HC dismissed a plea against constitution of a committee wherein an Associate Professor was appointed as Chairperson instead of a Professor, as prescribed saying that the Committees to deal with complaints of sexual harassment can be changed if the situation warrants, but not in violation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the UGC (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Education Institutions) Regulations, 2015 are to be read in consonance with the Act.
The complaint of the petitioner is that one of her senior colleagues had scribbled derogatory and lewd remarks on the wall of her office. The Petitioner had challenged the correctness of constitution of the Internal Complaints Committee. The petitioner’s grievance was that the committee constituted by the respondent-University is not in accordance with Regulation 4 of UGC Regulations.
It was argued that as per Regulation 4, the presiding officer of the Committee cannot be below the rank of Professor in case of a University, whereas the Committee is headed by an Associate Professor. It was further contended that one member has to be from amongst the non-government organizations. It was also argued that out of the nine members, two members are contractual employees of the respondent-University.
The University responded saying that the Committee has been constituted in accordance with the Parliamentary Act which is the primary legislation and regulations framed by UGC have to be read in accordance with the provision of the Act. The University also submitted that it does not have a female faculty member of the rank of Professor and hence the Committee is headed by an Associate Professor of Law who is the senior most lady faculty member in the University.
The petitioner then responded that Central Act is a general legislation whereas the UGC’s Regulations being specific legislation for educational Institutions will prevail over the Central Act and therefore the University’s stand that Committee is constituted as per Act is not correct.
The Court took cognizance of the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which in terms of Section 4 though provides that the Presiding Officer of the Committee has to a Senior Level without providing for any designation, unlike UGC Regulations, which prescribes the minimum qualification to be a Professor level for the post of Presiding Officer of the Internal Committee and while refusing to accept the argument of the Petitioner observed that
It may be noted here that ‘the Act’ is a Parliamentary Act and as such, holds supremacy after the Constitution of India. The Regulations are framed in the exercise of the legislative powers conferred upon the executive body and are hence, referred as delegated/subordinate legislation. Therefore, these regulations cannot supersede the Parent/Parliamentary Act which is made by the Legislature itself.
The UGC’s Regulations are to be read in consonance with the Act. In case of any repugnancy, it is the Parliamentary Act which has to prevail. Still further, once a field is occupied by a Parliamentary Act, the Regulations, if any, framed by way of subordinate legislation, cannot supersede or over-write the provision of the Act.
The Court also dismissed another contention that two members of the committee are contractual employees observing that there is no prohibition in the Act or the Regulations to include contractual employees in the Committee.
The last argument of the Petitioner that it is mandatory for one member has to be from a non-governmental organization or association was also rejected by the Court because the relevant clause in the law has been expanded to include a person familiar with the issues relating to sexual harassment. The Court thus held that it is not mandatory that one member has to be from a non-governmental organization or association.
This Court thus expressed its inability to accept the argument of the Petitioner that the Committee in accordance with the Central Act but not in accordance with UGC Regulations is bad in law and not properly constituted by saying that when the Parliamentary Act is applicable across the board and is a special Act enacted to deal with the complaints of sexual harassment of women at workplace, the UGC Regulations have to be read in terms of the Parliamentary Act.
The Court finally dismissed the Petition.
I agree with the views of the High Court. There are situations where absolute compliance with any law is not possible and subject generally have to rely on fulfillment of “substantial compliance”. We need to see that the spirit of the law has been followed. Having said that it should also be ensured that objective of the law is fulfilled and to that extent the UGC Regulation should now be amended to include the possibility, as happened in this case.
It may also happen that there may not be any female faculty of the rank of Professor or Assistant Professor, then what is the recourse ? A victim should not be remediless because of particular deficiency, which may be beyond the control of all concerned. The law as said has to be dynamic. It is time for UGC to revisit the POSH Regulations.
Ravi Bhardwaj | email@example.com