Sexual Harassment Prevention and POSH Act

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also called as POSH Act was a significant step towards India’s fight against sexual harassment at workplace. POSH Act mandates that awareness sessions on sexual harassment and its prevention should be conducted for all the employees. This has definitely helped in increasing awareness about sexual harassment among the workforce, resulting in a number of women fighting for their right to work in a safe workplace.

Because of the enactment of POSH Act, India has also seen several cases of sexual harassment at workplace sparking debates and discussions. In this article, we discuss five such major cases of sexual harassment at workplace that have shifted perceptions about recognizing, handling, and responding to workplace harassment in the past.

Same-Sex Harassment is Maintainable Under POSH Act

In a case heard by the Calcutta High Court, an employee of an educational institution filed a sexual harassment complaint against another employee of the same gender to the Internal Committee (IC). The IC conducted the inquiry, concluded that the respondent is guilty and recommended actions against the respondent.

The respondent challenged the action of the Internal Committee in the Honourable High Court of Delhi. She contended that the IC does not have jurisdiction to entertain complaints of sexual harassment when both the respondent and the complainant are of the same gender. She argued that the employer can take action against a perpetrator of sexual harassment only if the perpetrator is a man.

Major Observations by the Court

The court held that there is nothing in the POSH Act, 2013 that precludes a same gender complaint of sexual harassment.

“Although there is substance in the submission of the petitioner that the said expression has to be read in conjunction with the rest of the statue as a whole, there is nothing in Section 9 of the 2013 Act [which has been referred to in Section 2(m)] to preclude a same-gender complaint under the Act. Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same gender marriages may be legalized.”

The court thus concluded that sexual harassment by same gender is maintainable under the POSH Act.

“In such view of the matter, the act alleged by the private respondent to have been perpetrated by the petitioner, as evident from the complaint dated September 15, 2020 (Annexure P-5), is maintainable under the 2013 Act. Hence, the complaint cannot be turned down at the outset.”

Reference: Dr.Malabika Bhattacharjee v Internal Complaints Committee, Vivekananda College and Ors.

Definition Of Workplace in The Digital Work World

An employee of a Bank approached the High Court of Judicature for Rajasthan requesting the court to quash the report of the Disciplinary Authority of the Bank.

The detail of the complaint is that the petitioner was accused of sexual harassment by an employee of the same Bank who is working in a different state. The Disciplinary Authority inquired into the complaint and filed a charge sheet against the petitioner.

The petitioner argued in the court that the Disciplinary Authority does not have the jurisdiction to file charge sheet for two reasons:

• The inquiry could have been conducted only when sexual harassment occurs at workplace. The incident did not happen in the workplace of the petitioner since the petitioner was in another state.
• The alleged misconduct took place after work hours.

Major Observations by the Court

Court held that in the present era of digital workspace when employees are working in different branches of the same organization, it should be treated as one workplace.

“I have given my thoughtful consideration to the submissions. In the present digital world, workplace for employees working in the Bank and who have earlier worked in the same Branch and later on shifted to different branches which may be situated in different States has to be treated completely as one workplace on a digital platform. Thus, if a person may be posted in Jaipur and acts on a digital platform harassing another lady who may be posted in a different State, it would come within the ambit of being harassed in a common workplace. The contention of the counsel for the petitioner, thus on the aforesaid count is rejected.”

Responding to the second reason presented by the petitioner, the court observed that the working hours of 10.30 AM to 4.30 PM cannot be considered as the work hours for senior employees. In addition, sending inappropriate messages even if sent after working hours amounts to harassment under the Bank of India Officer Employees’ (Conduct) Regulations, 1976.

“The second submission of the counsel for the petitioner is that obscene and overt messages alleged to have been sent after the working hours are concerned, suffice it to note that the petitioner was holding the post of Chief Manager and the work timings for officers of senior level cannot be taken into consideration as between 10.30 AM to 4.30 PM alone. That apart knowing fully well that the concerned lady is in employment with the Bank and holding the subordinate post. If messages are sent after working hours, then it would amount to causing harassment and prima facie would come within the meaning of misconduct under the Regulations of 1976.”

As a result, the court dismissed the writ petition of the petitioner as it is found to be without any basis.

Reference: Sanjeev Mishra Vs Disciplinary Authority & General Manager

Improper Constitution of ICC (Internal Complaints Committee)

A student filed a complaint of sexual harassment with the Internal Complaints Committee of her Educational Institution. The Internal Complaints Committee accepted the complaint, conducted the inquiry and prepared an inquiry report. The ICC that looked into the complaint was not constituted as per the All India Council for Technical Education (Gender Sensitization, Prevention and Prohibition of Sexual Harassment of Women Employees and Students and Redressal of Grievances in Technical Educational Institutions) Regulations, 2016 (hereafter referred to as Regulations).

Aggrieved by the improper constitution of the ICC, the complainant filed a writ petition against the Institute and the ICC to the High Court of Bombay at Goa. She argued that as per the regulations, the ICC must have:

1. A Presiding Officer who shall be a woman faculty member employed at a senior level,
2. Two faculty members and two non-teaching employees,
3. Three students (comprising of at least one girl student) of Pre-Final/Final year at Undergraduate/Diploma level
4. 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.

In contrast, the Internal Complaints Committee that inquired into her complaint was improperly constituted.

• Instead of two, the ICC had only one non-teaching employee.
• The three student members did not take part in the inquiry.
• There was no record to prove that the External Member was part of any non-government organizations or associations committed to the cause of women or was a person familiar with the issues relating to sexual harassment. The External Member was also a professor of the institution.

Major Observations by the Court

The court observed that the Internal Complaints Committee was not constituted complying to the regulations.

“In the present case, the records indicate that there was full compliance with the provisions of sub-clause (a) of Regulation 4(1) of the said Regulations. In so far as provisions of sub-clause (b) of the said Regulations are concerned, instead of having two non-teaching employees, there was only one non-teaching employee in the ICC. In so far as clause (c) of Regulation 4(1) of the said Regulations is concerned, the record reveals that three students were associated with the ICC. However, we agree with the contention of Ms. Collasso that such association was not as is contemplated by letter and spirit of the provisions in sub-clause (c).”

“From the contents of the aforesaid paragraphs, we agree with Ms. Collasso that the three students were not involved at all stages of the inquiry. To that extent, there was infirmity in the constitution of the Committee.”

“In so far as clause (d) of Regulation 4(1) of the said Regulations is concerned, it is the case of Respondents No.1 and 3 that Prof. Nila Nayak, Senior HR Professional with 20 years experience (External Member) was made part of the ICC. However, there is nothing on record to indicate that Ms. Nila Nayak was a member of some non-government organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. Besides, the affidavit states that Ms. Nila Nayak was a Professor at the Institution. According to us, therefore, there is no compliance with sub-clause (d) of Regulation 4(1) of the said Regulations, as well.

Hence, the court passed the judgement in favor of the petitioner and set aside the inquiry report.

“We, therefore, agree with Ms. Collasso that the constitution of the ICC was not in accordance with Regulation 4 of the said Regulations. On this short ground, the report of the ICC dated 12th February, 2019, is required to be set aside and is, hereby, set aside.”

Reference: Ruchika Kedia vs. The Internal Complaints, Goa Institute of Management 

Is the sole testimony, of the victim of sexual abuse, sufficient?

The High Court of Uttarakhand answers this question in a case of sexual harassment at the workplace.

A complaint of sexual harassment was filed against a guest instructor (referred to as respondent hereafter) of a paramedic course. It is alleged that when the respondent was travelling back after a night training exercise along with a few others including trainees in the cabin of a truck, he molested and sexually harassed one of the lady trainees.

Upon receipt of a complaint from the aggrieved, the Inquiry Committee conducted an inquiry and concluded that the respondent is guilty based on the complaint and the following testimonies of people who were part of the journey:

The respondent, aggrieved by the findings of Inquiry Committee filed appeals in the appropriate tribunals which upheld the findings of the Inquiry Committee. The case reached the High Court of Uttarakhand later. The respondent argued in the court that it is not appropriate from the end of the Inquiry Committee to rely solely on the testimony of the complainant to take an action when it lacked any other evidence.

Major Observations by the Court

The court remarked that as long as the inquiry did not reveal the complainant having any strong motive to file a complaint, the Court should have no hesitation in believing her.

The court answers the question it raised in the beginning. The sole testimony of the victim of sexual harassment is sufficient in a departmental inquiry since the standard of proof used is preponderance of probabilities.

“As the sole testimony of a prosecutrix, in a criminal case involving sexual harassment and molestation, would suffice if it is otherwise reliable, there is no justifiable reason not to accept the sole testimony of a victim, of sexual harassment and molestation, in a departmental inquiry as the enquiry held by a domestic Tribunal is not, unlike a Criminal Court, governed by the strict and technical rules of the Evidence Act. (Murlidhar Jena2). A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probabilities, and not proof beyond reasonable doubt.”

Reference: Bhuwan Chandra Pandey vs Union Of India And Others on 15 June, 2020

Internal Committee and Moral Policing

An employer (who will be further referred to as complainant) filed a sexual harassment complaint against a co-worker (who will be further referred to as respondent) to the Internal Committee (IC) of the employer Bank.

The IC conducted the inquiry and concluded that the complainant and the respondent were in a consensual relationship and allegations of sexual harassment were not substantiated. Hence, the IC rejected the complaint.

IC went a step ahead and made the observation that the two parties’ behavior was unbecoming for their roles and recommended the competent authority to take appropriate action against them. Based on this report of the IC, the Bank issued a chargesheet against the complainant and the respondent.

Aggrieved by the recommendations of the IC and the resultant chargesheet, the complainant filed a writ petition.

Major Observations by the Court

The Court held that the IC does not have the jurisdiction to make recommendations to take disciplinary actions against the complainant and the respondent for indulging in inappropriate conduct.

“It is not contemplated within the provisions of the Act that while holding that no action is to be taken and the complaint is to be rejected, the ICC can direct for suitable action on the ground that the parties have indulged in an inappropriate conduct. Such a determination and consequential recommendation is beyond the jurisdiction of the ICC.”

The Court observed that any consensual relationship among adults should not concern the Management or of the IC as long as it does not affect the working and discipline of the organization and is not in violation of any of the Rules.

“`Moral Policing’ is not the job of the Management or of the ICC. Any consensual relationship among adults would not be the concern of the Management or of the ICC, so long as the said relationship does not affect the working and the discipline of the organisation and is not contrary to the Rules or code of conduct binding on the said employees.”

The Court ordered to set aside ICC’s recommendation to take action against the complainant and the respondent. The Court also quashed the charge sheet that seeks to take action against the complainant.

Reference: Bibha Pandey vs. Punjab National Bank and Ors.

How can eLearnPOSH help you in preventing sexual harassment at workplace?

If there is one thing that these cases remind us, it is the fact that many lack correct understanding about the concepts related to the POSH Law. An effective and comprehensive POSH training conducted on a regular basis will not only create adequate awareness but will also help in keeping sexual harassment at bay.

We, at eLearnPOSH offer interactive, engaging and legally accurate online POSH training and webinars. Our courses cater to different audience in your organization like staff (white collar and blue-collar workers), supervisors & managers and the Internal Committee. The POSH Foundation course for the staff is available in English and 7 regional languages like Hindi, Marathi, Bengali, Kannada, Telugu, Tamil and Malayalam.

Our subscribers for “POSH Course for Managers” and “POSH Course for Internal Committee” will have free access to our regular LIVE webinars conducted by POSH experts on important POSH topics. The webinars will have an open Q&A where the audience can get all their queries on POSH answered by the experts. If you are looking for an External Member, check out FREE External Member directory. To know more details about our POSH offerings, contact us.