A POSH case on the external member, independence and procedural fairness
Under the POSH Act, constitution of the Internal Committee is not merely a compliance formality.
The composition of the Committee must satisfy the statutory requirements, including the requirement concerning the external member.
The Delhi High Court’s decision in Ruchika Singh Chhabra v. M/s Air France India & Anr., decided on 30 May 2018, brought this issue into sharp focus.
What Was the Case About?
Ruchika Singh Chhabra, an employee of Air France, alleged sexual harassment by a senior employee.
She challenged not only the allegations and the manner in which the proceedings were being conducted, but also the constitution of the Internal Complaints Committee, particularly the appointment of its external member.
Air France had appointed Mr. Michael Dias, Secretary of the Employers’ Association, Delhi, as the external member.
The appellant questioned whether his appointment satisfied the statutory requirement and raised concerns regarding his independence and experience relating to sexual harassment.
What Did the Delhi High Court Hold?
The Court examined the requirements under Section 4 of the POSH Act.
One important issue was the reliance placed by Air France on Rule 4 to support the external member’s qualifications.
The Court held that Rule 4, which concerns the Local Committee under Section 7, could not simply be relied upon to establish compliance with the requirement applicable to the Internal Committee under Section 4.
The Court found that the external member did not satisfy the statutory requirement on the material before it.
It therefore held the constitution of the ICC invalid and consequently set aside the proceedings and report arising from that Committee. The Court directed Air France to reconstitute the Committee and conduct the inquiry afresh.
Why Is the External Member Important?
The external member is not merely a name added to complete the Committee.
Section 4(2)(c) requires the member to come from an NGO/association committed to the cause of women or be a person familiar with issues relating to sexual harassment.
The requirement is intended to bring appropriate independence and expertise into the Committee’s functioning.
Therefore, employers should not treat the appointment as a box-ticking exercise.
But There Is an Important Later Development
This part is essential when discussing the case today.
Air France challenged the Delhi High Court’s decision before the Supreme Court.
On 26 July 2018, the Supreme Court disposed of the SLP after Air France offered to constitute a new Committee and conduct a fresh inquiry.
The Supreme Court specifically recorded that it was not adjudicating the matter on merits, kept the question of law open, and directed that the Delhi High Court’s order not be treated as a precedent for any other case.
Therefore, the Delhi High Court judgment remains an important case for understanding the issues surrounding proper constitution of an IC and the external member, but its legal status should be presented with this subsequent Supreme Court order in mind.
What Should Employers Learn?
1. Check the constitution of the IC carefully.
Every member should satisfy the statutory requirements.
2. Do not treat the external member as a formality.
The qualification and independence of the external member matter.
3. Procedure matters.
The IC must conduct proceedings fairly and in accordance with the Act and principles of natural justice.
4. Maintain proper records.
The organisation should be able to demonstrate the basis on which IC members, particularly the external member, were appointed.
THE BIGGER POSH LESSON
An Internal Committee is not merely a committee on paper.
Its composition, independence and functioning form an important part of a fair POSH process.
Proper constitution is the starting point. Fair procedure is the foundation.
Disclaimer: This article is for general legal awareness and educational purposes and should not be treated as case-specific legal advice.