On February 1, the Delhi High Court while hearing a case about sexual harassment within a company has observed that management and authorities must behave in a responsible manner and institutions cannot escape the liability for dragging on sensitive sexual harassment complaints under the prevention of sexual harassment at the workplace act.
A single-judge bench of Justice Prathiba Singh observed that in cases of sexual harassment, the constitution of the Internal Complaints Committee (ICC) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) (POSH) Act, 2013, is of “utmost importance”.
The order was passed in a plea filed by a woman alleging that she had filed a complaint, dated July 5, 2019, to the head of HR-IFCI Factors Ltd, alleging sexual harassment by a senior functionary of the organisation. The complaint was placed before the managing director-IFL, who in turn, forwarded the complaint with his remarks to IFCI-HR & CVO, IFCI Group, to take up the matter in their ICC as the accused personnel was an employee of IFCI.
On July 10, 2019, general manager, IFCI Ltd, marked the complaint back to IFL with the following noting: “The complaint is from IFC/Factors Ltd (/FL) and relates to Sexual Harassment at Workplace, hence, it is submitted that IFL may be directed to redress as per the Sexual Harassment of Women at Workplace Prevention, Prohibition and Redressal) Act, 2013.” The ICC of IFL was formed on July 30, 2019, and proceedings were initiated under the POSH Act against the senior officer. The ICC of IFL was reconstituted on August 19, 2019, and then again reconstituted on August 23, 2019, and February 24, 2020. The ICC submitted a report on March 11, 2020, directing the concerned senior officer to give a written apology.
The recommendations of the said report said: “It has been unanimously recommended by the ICC, IFL that the senior officer is found guilty on the basis of facts and witnesses so far as stated above, thus: A written apology must be given by the senior officer in the name of complainant to the appointing authority of ICC, IFL, and to restore the modesty of the complainant, there should not be any proximity between the complainant and respondent, in order to avoid any situation causing hostile environment or confrontation between both the parties as they work in same tower. It also should be ensured that any such action should not appear to penalize the complainant. Management is free to take any other measure in addition to above recommendations as per service rules and policies.”
Thus, the ICC was of the view that some reparation was required for the complainant, owing to the conduct of the senior officer. In the letter dated October 19, 2020, the ICC was informed by the chief general manager of IFCI Ltd that the recommendations of the ICC were accepted by the disciplinary authority of IFCI and necessary orders were also issued vide letter dated October 12, 2020. The senior officer, however, filed an appeal to the appellate authority of IFCI Ltd, i.e, the board of directors, and in the said appeal, a re-examination was directed by the ICC of IFCI.
This has been challenged by the petitioner on the ground that since the re-examination has been directed by the ICC of IFCI Ltd, she no longer wishes to participate in the said enquiry as the complaint dates back to 2019 and she cannot be subjected to a second round of proceedings before the ICC, as the same is extremely frustrating and torturous. It was due to certain language being used by the senior officer and actions against her that she had filed the complaint initially with the head of HR, IFL and thereafter to the ICC.
The High Court observed that in POSH-related complaints and matters, the constitution of the ICC is of utmost importance and the same has to be in accordance with the provisions of the Act. The management and authorities of the organisations have to behave in a responsible manner and on the mere ground that the constitution was incorrect, a re-examination of the whole proceedings cannot be directed under the facts and circumstances.
As can be seen, the board of directors of IFCI had merely directed re-examination by the ICC of IFCI, when the petitioner was working in IFL. Moreover, the senior officer was at the relevant point in time deputed to IFL as managing director. The constitution of the ICC was being repeatedly changed for some reason or the other. The considerable time which had elapsed cannot be wasted both in respect of the complainant/petitioner as also in respect of the person against whom the complaint is made.
The Court further observed that the complaint dates back to 2019, and in view of the recent action of IFCI Ltd, the matter is back to square one. The complainant cannot be harassed and put to inconvenience to appear again and again before the ICC, even of a connected organisation and be expected to produce witnesses to support her case, all over again. Even the said witnesses may not be available now in the organisation. In the same vein, even the senior officer against whom the enquiry is to be conducted would also be subjected to harassment and frustration to participate in a second enquiry.
Under these circumstances, the Court directed that the order for re-enquiry shall not be pursued by IFCI Ltd. The Court said that the adjudication of complaints relating to sexual harassment need to be dealt with utmost care. The inquiry needs to be by a duly constituted ICC and the same needs to be complete in all aspects. Institutions cannot escape liability for dragging on these sensitive complaints.
The Constitution provides the right to equality to both women and men. Women have equal rights to choose any profession and area of work or business activity. But in practice, women are discriminated against, both in their homes and outside. Discrimination, most of the time, includes elements of harassment and violence against women. Furthermore, the said harassment can be both mental and physical. More often than not, physical harassment takes the form of sexual harassment or sexual violence. Sexual harassment, in general, and sexual harassment at workplace, in particular, is the hard reality which is faced by working girls and women in everyday life.
The change in society has brought positive changes in the lives of women in the sense that a working woman feels economically independent and liberated. But at the same time, this change has also increased the vulnerability of women for crimes, such as sexual harassment at workplace. Sexual harassment at workplace includes both physical as well as mental aspects.
Though it is difficult to define what constitutes sexual harassment at workplace, the Supreme Court has defined it in the case of Vishaka vs State of Rajasthan, 1997 as: “Any unwelcome sexually determined behaviour (whether directly or by implication) as physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.” That makes it very clear that any unwelcome sexually coloured behaviour by a male against a female employee will be treated as sexual harassment at workplace.
The Supreme Court in Vishaka vs State of Rajasthan had also recognized this flaw or loophole in the IPC and gave a landmark decision wherein certain guidelines were to be followed by public and private sector organizations to provide protection and redressal to female employees from sexual harassment in their organizations. The guidelines make it mandatory for employers to protect their female workers from sexual harassment; a proper inquiry is necessary in case of any complaint of such nature; every organization must have a complaint committee headed by a woman to deal with such misconducts readily; rules prohibiting sexual harassment should be notified and publicized; penalties are to be imposed in case of violation of such rules; and employers are directed to protect their women employees from third party harassments.
The POSH Act came into effect on December 9, 2013. As the name suggests, its objective is to prevent, prohibit, and in case of violation, provide redressal to the victim. The Act contains almost all the directives given by the apex court in the Vishaka case and it also consists of several other provisions such as:
- The complaint committees have been granted the powers of civil courts in garnering evidences.
- If the employers fail to comply with the provisions of the Act, they will be liable for penalties up to Rs 50,000.
- The Act includes in its purview workers of unorganized sectors such as daily wage labourers working in construction business or maids working in homes, etc.
The Act is an attempt to provide working women a mechanism to counter the menace of sexual harassment at workplace. It has streamlined the guidelines given in the Vishaka judgment and also mandated a statutory obligation on employers to follow its provisions.
The film industry is another area where such cases are on the rise. In 2022, the Kerala High Court had asked organisations associated with the film industry to take steps to constitute a joint committee to deal with cases of sexual harassment of women, in line with the POSH Act.
—By Adarsh Kumar and India Legal Bureau