#MeToo movement has brought to light numerous allegations of sexual harassment and assault in various industries worldwide, whether entertainment, sports, politics or business. There have been several cases of violations of sexual harassment and discrimination at renowned companies in India, which every now and then highlights the adequate need and enforcement of policies relating to prevent of sexual harassment at the workplace.
In a recent judgment titled “Ms. X (“Complainant”) Vs. Internal Committee and Others “[1], a Delhi Court on July 06,2023 imposed costs of Rs. 50,000 (~USD 604) on a renowned bank in India (“Bank”) for non-compliance of provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”).
The judgment was passed while hearing an appeal filed under section 18 (1) of POSH Act by a Complainant employee against the order dated August 22,2022 passed by the Internal Committee (“IC”) constituted by the Bank constituted to inquire into the complaint of the Complainant wherein an accused employee (“Accused”) was found guilty of sexual harassment by the IC, but the IC failed to provide any punishment to him.
As per the facts of the appeal, the Complainant was posted at the branch office of the Bank at Chanakyapuri, New Delhi till she resigned as Branch Manager on April 19, 2021. A complaint for sexual harassment was filed by the Complainant on the basis of recorded conversation between the Accused employee employed as Relationship Manager in the Bank and one former employee of the Bank.
During the inquiry, the Complainant was handed the statement of an anonymous witness whose statement was recorded on May 24, 2022, however, despite asking, the IC denied revealing the identity of anonymous witnesses to the Complainant and asked the Complainant to share the questions for cross-examination of the anonymous witness, which was denied by the Complainant for being in violation of principles of natural justice.
On August 22, 2022, the IC submitted its Report holding the Accused employee as guilty for sexual harassment, but no punishment or compensation was awarded against him which was objected to by the Complainant. Later on, the Complainant received an e-mail dated September 29, 2022 from the presiding officer of IC that a written warning had been issued to Accused employee and he had already resigned from the employment. The said Report was challenged by the Complainant.
While hearing the appeal, the Court observed that the finding by the IC regarding the Accused being found guilty of sexual harassment was not challenged by the Accused and the same had attained finality, rather, the Complainant had come to Court only on the ground of insufficiency of punishment. The Complainant stated that she was not inclined to give any harsh punishment to the Accused but at least he should have known how to treat a woman and woman’s character should not be assassinated and the Bank should also have taken care of same.
While hearing the appeal on merits, the Court observed from record that the practice adopted by IC was biased, partial and one-sided and was totally against principles of natural justice as the IC brought a witness i.e. ICW1 in inquiry proceedings on its own accord and further allowed the Accused to bring RW-1 and treated him as anonymous despite the objection of Complainant and their names were never disclosed to the Complainant. It was not understandable as to how witness could depose without being scrutiny of their cross-examination by affected party i.e., the Complainant. Thus, the practice followed by IC in the present case was prejudicial and biased towards the Complainant.
The Court observed that the IC did not confine itself to the case of sexual harassment, but it went beyond the same to malign the Complainant and sought answers against her personal conduct by putting questions to anonymous witnesses. Further, the employer Bank never tried to go into the roots of the incident and recording in question and grievances of Complainant were never paid any heed by the Bank despite the sanctity of the woman and sensitivity of the issue.
The Court further noted from the perusal of record that before conclusion of proceedings of inquiry by the IC, the Bank, for the reasons best known to it, accepted the resignation letter of Accused and later on, findings were given against him which was of no use as he had already resigned from the Bank and rather, no punishment was awarded against him at first instance and he was simplicitor held guilty for offence of sexual harassment.
It was concluded by the Court that due to lack of proper awareness of the POSH Act, the Accused as well as the Bank failed to create a safe and comfortable work environment and further to identify and prevent it. Thus, due to acts and actions of the Accused, the Complainant suffered a lot during the period which cannot be compensated in terms of money as her whole career was put at stake at the hands of Accused for which he is required to be directed to tender unconditional apology and to pay the litigation cost of Rs. 2,00,000 (~USD 604) to the Complainant. In addition, the Bank was directed to pay at least Rs. 50,000/- (~USD 2416) as litigation cost to the Complainant with direction to display in clear terms setting the high standard by giving clear cut message to all the employees in harsh words that there is no tolerance for any such incident in that institution. The Court further urged Delhi Commission for Women and the Central Government to take effective steps towards implementation of the POSH Act.
Accordingly, the appeal was allowed by the Court with costs and disposed of in terms of observations made above to the satisfaction of the Complainant.
Anhad Law Perspective
In India, POSH Act was enacted to protect women from sexual harassment at the workplace, however, the implementation of the POSH Act in India, unfortunately, faces several challenges. Some of the key challenges include:
- Lack of awareness: Many companies as well as employees do not have adequate awareness about the POSH Act. Many employees are unaware of their rights and the procedures for filing complaints, leading to underreporting and inadequate implementation.
- Lack of training: Even when companies are aware of the POSH Act, they often do not provide adequate training to their employees on the POSH Act’s provisions. This can lead to employees not knowing how to identify or report sexual harassment.
- Fear of retaliation: Many employees are afraid of reporting sexual harassment complaints because they fear retaliation from their employers. This can discourage employees from coming forward and seeking help.
- Ineffective grievance redressal mechanisms: Many companies have ineffective grievance redressal mechanisms in place including improper constitution of IC. Some organizations may lack well-constituted or active ICs, or have untrained members, undermining victims’ confidence in the complaint redressal process.
- Lack of support systems: Victims require supportive mechanisms such as counselling services, legal aid, and protection against victimization during the complaint process. These support systems are essential for the well-being and safety of victims.
- Compliance issues: Some organizations struggle with compliance due to a lack of understanding or unwillingness to adhere to the act’s requirements. This results in insufficient measures to prevent and address sexual harassment effectively.
The judgment passed by Delhi Court is significant as the Court highlighted the need of POSH policies and enforcement in the workplace not only in letters but also in spirit. The Court castigated the conduct of the employer and the IC by making observations that the employer/organization under whose authority, the IC has been formed must ensure the concept of neutrality and that principles of natural justice must be followed in letter in spirit. As per the Court, often the Chairperson of the IC who happens to be senior employee of the employer has leanings with the employer and all efforts are made to absolve the employer in order that the organization’s reputation is not tarnished and due to this reason, it is often seen that victim becomes the target of the system by which she is governed, and victim is criticized and humiliated. The Court observed that clear cut guidelines regarding the POSH Act are found missing and persons who are members of IC lack in legal knowledge and they do not know the repercussions of way of handling the proceedings which unknowingly and inadvertently, result in such cases and observations as in the given case. The Court observed that victims for this reason are afraid of filing cases/complaints of sexual harassment on account of their image being tarnished in the workplace as well as outside and victim becomes the topic of discussion making it almost impossible for such victim to work in such environment and rather, she is eyed with suspicion. Even an organization/employer remains reluctant to entertain such complaints and endeavor to avoid such cases coming to limelight for the sake of their reputation.
It is thus imperative that employer/organization under whose authority the IC has been formed must ensure the concept of neutrality and that principles of natural justice must be followed in letter in spirit. The compliance of POSH Act is integral to ensure a safe and healthy workplace and employers must take the necessary steps to ensure their work complies with POSH guidelines as when employers and employees know the rules and regulations regarding sexual harassment, they are better equipped to identify and prevent it and this can lead to higher job satisfaction, productivity and a reduction in legal liability for employers.
–Manishi Pathak, Founding Partner and Ranjan Jha, Partner, Anhad Law
Disclaimer: The contents of the above publication are based on interpretation, analysis and understanding of applicable laws and updates in law, within the knowledge of authors. Readers should take steps to ascertain the current developments given the everyday changes that may be occurring in India on internationally on the subject covered hereinabove. These are personal views of authors and do not constitute a legal opinion, analysis or interpretation. This is an initiative to share developments in the world of law or as may be relevant for a reader. No reader should act on the basis of any statement made above without seeking professional and up-to-date legal advice.
[1] RCA DJ NO. 2/22
