P& H HC: POSH PANELS UNDER UGC REGULATIONS CAN BE ALTERED IF PARLIAMENTARY ACT IS COMPLIED WITH

The Hon’ble Punjab and Haryana High Court in the matter of Dr. Tanya Mander v. Rajiv Gandhi National University of Law (Punjab) and Anr[1] rejected a writ petition filed assailing the correctness of the constitution of a committee wherein an Associate Professor was appointed as Chairperson instead of a Professor, as prescribed in the UGC (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Education Institutions) Regulations, 2015 (in short ‘the Regulations’).

It was argued on behalf of the Petitioner that as per Regulation 4[2], the presiding officer of the Committee cannot be below the rank of Professor in case of a University, whereas the Committee constituted by the respondent-University is headed by an Associate Professor. It was further contended that one member has to be from amongst the non-government organizations or an association committed to the cause of women, however, in the present case, there is none. It was also argued that out of the nine members, two members are contractual employees of the respondent-University.

It was argued on behalf of the respondent-University that the Committee has been constituted in accordance with the Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013 (in short ‘the 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 Hon’ble High Court while dismissing the petition held as follows:

1. 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 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.
2. Once there is no women faculty member in the rank of Professor, then the constitution of the committee cannot be declared to be bad. It is an undisputed fact that the respondent-University is a small university and there is no women faculty member in the rank of Professor. Furthermore, the provisions of Section 4 of the Act states that the presiding officer of the committee has to be a woman employed at a senior level. Thereafter, the Section, requires that not less than two members should be amongst the employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge. In this case, most of the members are faculty members of Law and thus possess the required legal knowledge.
3. Under Clause c of Section 4(1), there are three possibilities- one member can be either from amongst the non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. Thus, it is not mandatory that one member has to be from a non-governmental organization or association. The respondent-University has nominated a female doctor who is well versed with the issues relating to sexual harassment, therefore, her inclusion in the committee is in accordance with the requirements of the Act.
4. There is no prohibition in the Act or the Regulations to include contractual employees in the committee. Out of the two contractual employees, one is a Medical Officer and the other is an Assistant Librarian. Further, the committee is quite broad based and the contractual employees are only two out of a total of nine members. It is also not in dispute that more than half of the total number of members of the committee are women.

 

[1] CWP No. 960 of 2019 (O&M)

[2] Grievance redressal mechanism—

(1) Every Executive Authority shall constitute an Internal Complaints Committee (ICC) with an inbuilt mechanism for gender sensitization against sexual harassment. The ICC shall have the following composition:

(a) A Presiding Officer who shall be a woman faculty member employed at a senior level (not below a Professor in case of a university, and not below an Associate Professor or Reader in case of a college) at the educational institution, nominated by the Executive Authority;

Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section 2(o);

Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organization;”

(b) two faculty members and two non-teaching employees, preferably committed to the cause of women or who have had experience in social work or have legal knowledge, nominated by the Executive Authority;

(c) Three students, if the matter involves students, who shall be enrolled at the undergraduate, master’s, and research scholar levels respectively, elected through transparent democratic procedure.

(d) One member from amongst non-government organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, nominated by the Executive Authority.