Introduction
In a today's increasingly aware and vocal workplace environments, it is essential to acknowledge that not every inappropriate or unprofessional comment qualifies as 'sexual harassment.'
Sexual Harassment, as defined under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also commonly known as the POSH Act, requires the presence of a sexual undertone or an element that directly or indirectly creates an environment hostile to the woman.
Section 2(n) of the POSH Act defines sexual harassment which includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:
- Physical contact and advances; or
- A demand or request for sexual favors; or
- Making sexually colored remarks; or
- Showing pornography; or
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Thus, every comment, joke, or interaction- however unwelcome- does not automatically fall within the ambit of sexual harassment unless it carries a sexual implication.
This legal nuance was at the heart of a recent judgment delivered by the Hon'ble High Court of Bombay, where it quashed the findings of both the Internal Complaints Committee (ICC) and the Industrial Court that had previously ruled against the petitioner.
Background of the Case
The matter concerned a petition challenging the order dated July 01, 2024, passed by the Industrial Court, Pune, which had upheld the ICC's report dated September 30, 2022, concluding that the petitioner had engaged in acts constituting sexual harassment as defined under the POSH Act.
However, Hon'ble Mr. Justice Sandeep V. Marne, presiding over the single-judge bench, found glaring inconsistencies and a lack of depth in both the ICC's inquiry and the Industrial Court's evaluation. The court observed that the allegations against the petitioner lacked the essential elements required to constitute sexual harassment under the POSH Act.
Allegations of the Complainant:
The matter stems from a complaint filed by a female bank employee under the POSH Act.
According to the complaint, the following three incidents were reported:
- Incident 1: The petitioner passed a comment on the complainant's hair looking at the length and volume stating that, "you must be using JCB to manage your hair,' followed by singing a popular film song related to her hair.
- Incident 2: The petitioner allegedly passed a sexual remark on a male employee's private part in a common forum where female employees were also present.
- Incident 3: A senior female employee accusing her Reporting Manager (not the petitioner) for checking her out and discussing her attire with other male colleagues.
Observations of the ICC:
The ICC examined the three main allegations raised by the complainant and observed that the petitioner, though agreed to some of the charges, was not willing to accept the others, in spite of informing him that the ICC has multiple witnesses who have confirmed all the allegations.
The ICC also felt that during the course of the meeting the petitioner was reluctant in agreeing to the fact that his behavior was completely unprofessional and he had created work environment which is not conducive to female employees and amounts to harassment at workplace.
On being aggrieved by the report passed by the Internal Complaints Committee dated September 30, 2022, the petitioner challenged the judgment and filed an appeal before the Hon'ble High Court of Bombay under provisions of Section 18 of the POSH Act, 2013.1
Judicial Observations:
The Hon'ble Court analyzed each allegation separately and critically:
- Comment on Hair:
With regard to the first incident concerned, the court found that the nature of the comment, while perhaps unprofessional, did not carry any overtly sexual undertone. Importantly, the court emphasized that the complainant herself did not perceive it as sexual harassment when the comment was made.Moreover, the WhatsApp chats between the complainant and the petitioner post the alleged incident indicated a cordial professional relationship between the parties, including messages of encouragement and gratitude from the complainant to the petitioner.
"Therefore, even if the allegations qua Incident No. 1 is accepted as proved, it becomes difficult to hold that the Petitioner has committed any act of sexual harassment," the court remarked.
- Comment on Other Male
Colleague:
With regard to Incident No. 2 as alleged by the complainant, the court held that the remark, even if made, was admittedly not directed against the complainant and hence, it could not be said to have caused her any personal distress or constituted sexual harassment towards her under the POSH framework. - Allegation on Reporting
Manager:
Further, about Incident No. 3 as alleged, the court clarified that the allegation was not directed against the petitioner in any manner but rather against a female reporting manager. Thus, the allegation in the third incident does not pertain to the petitioner and is irrelevant to the inquiry against the petitioner.
On the basis of the above findings, the court held that "Though the first two incidents relate to allegations against the Petitioner and even if the allegations are taken to be proved, concrete interference of cause of sexual harassment to the complainant cannot be drawn."
Hon'ble Mr. Justice Sandeep V. Marne concluded that the Committee had failed to engage in a legally sound analysis of whether the allegations levelled against the petitioner, assuming them to be true, could objectively or subjectively amount to sexual harassment as per the POSH law.
"The Committee has not discussed each article of charge in relation to the evidence appearing on the record. The ICC has merely made vague recommendations by recording a general finding that 'all serious allegations were confirmed by multiple witnesses that were interviewed by the committee.' Beyond this finding, there is no discussion in the report of the ICC about the evidence appearing on record in respect of each article of charge," the court stated.
Further, the Industrial Court, in turn was criticized for blindly accepting the ICC's conclusions without applying an independent judicial mind to the facts and the law.
The court observed that "The Industrial Court has failed to take into consideration the exact nature and gravity of allegations levelled against the Petitioner. It has completely ignored the fact that even if the allegations are taken as proved, no case of sexual harassment of the complainant was made out in the light of peculiar facts and circumstances of the present case."
Thus, in view of the finding the Industrial Court's order "clearly perverse" and devoid of any analysis of the 'nature and gravity' of the allegations, the Hon'ble High Court allowed the petition. It quashed both the order of the Industrial Court dated July 01, 2024 and the ICC Report dated September 30, 2022, effectively clearing the petitioner of the charges.
Conclusion:
In conclusion, while maintaining workplace discipline and respectful communication is essential, it is equally important to adopt a balanced approach when assessing complaints under the POSH Act, 2013. The above judgment highlights the necessity of a fact-specific and objective inquiry, ensuring that complaints of sexual harassment are evaluated within their context and nature, rather than being broadly categorized. Over expansion of the definition of sexual harassment to include every insensitive or offensive remark risks diluting the integrity and effectiveness of the law.
In the context of the incidents of sexual harassment reported in the above case, the bystanders and the witnesses play a crucial role in addressing workplace sexual harassment under the POSH Act. Even though they are not the direct victims, the ambient effect of such misconduct can create a hostile work environment, affecting their ability to work comfortably and professionally.
The POSH Act acknowledges that workplace sexual harassment can extend beyond individual victims, affecting the overall atmosphere and making it uncomfortable for others. The Hon'ble Supreme Court in Vishaka & Ors. v. State of Rajasthan (1997), laid the foundation for workplace sexual harassment laws in India emphasized that "employers must ensure a safe working environment, reinforcing the idea that sexual harassment impacts not just the victim but also those around them".
Ultimately, while vigilance against workplace sexual harassment is necessary, it must be accompanied by a nuanced and fair approach, ensuring that genuine concerns are addressed while safeguarding against misinterpretations that could compromise the intent of the POSH Act.
Footnote
1 Writ Petition No. 17230 of 2024
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