Highlights
THE CASE OF FORMER WRESTLING FEDERATION OF INDIA (WFI) PRESIDENT BRIJ BHUSHAN SHARAN SINGH
In Jan 2023, a group of Olympians and international wrestlers including Vinesh Phogat, Sakshi Malik, Bajrang Punia, and others organized a sit-in demanding disbanding of the federation due to alleged sexual harassment of female wrestlers by Brij Bhushan. The protests resumed in April 2023 due to government inaction. The protestors demanded police file an FIR against Brij Bhushan and his immediate arrest. The incidents of sexual harassment cited by protestors ranged from 2012 to 2022.
At that time , WFI’s ‘sexual harassment panel’ was flouting the POSH Act, headed by a man instead of a woman. The committee had only one woman, and no external member, and therefore violated the POSH Act.
On January 23, the day the Union Sports Ministry first formed the Mary Kom-led committee to investigate allegations of sexual harassment against Brij Bhushan Singh, it sent a letter to all national sports federations flagging the importance of the IC
On 28 April 2023, only after the intervention of the Supreme Court, did the Delhi Police registered two FIRs against him. One of the FIRs was registered under the POCSO Act (The Protection of Children from Sexual Offences Act, 2012) for offences against a minor. A second FIR was registered on similar grounds on the complaint of the remaining 6 adult female wrestlers.
Vinesh Phogat, one of the leading protestors, also alleged that Brij Bhushan “mentally harassed and tortured” her for missing out on a medal at the 2020 Summer Olympics.
On May 12, The Delhi Police recorded a statement from Brij Bhushan Sharan Singh regarding the sexual harassment charges levelled against him by female wrestlers and stated that a female DCP would head a SIT (Special Investigation Team) of 10 people against him.
The FIRs in the case mention allegations against Brij Bhushan and WFI secretary Vinod Tomar. The allegations include demanding sexual favours for professional assistance in at least two cases, at least 15 incidents of sexual harassment which include inappropriate touching by running hands over breasts, touching the navel, several instances of intimidation including stalking — and a shared sense of fear and trauma. The incidents range from years 2012 to 2022 at different places at restaurant, in WFI office, at tournaments and at a warm-up. Incidents happened during domestic as well as international tournaments abroad. Vinesh Phogat, who has won multiple medals at the World Wrestling Championships, claimed she was “mentally harassed, tortured and threatened to be killed” by Brij Bhushan for complaining against him to the then prime minister Narendra Modi and sports minister Anurag Thakur. She was made to face widespread media scrutiny under the guise of missing out on a medal at the Tokyo Olympics in 2021.
AURELIANO FERNANDES VS. STATE OF GOA AND OTHERS (MAY 12, 2023, SUPREME COURT OF INDIA)
In its recent judgment in Aureliano Fernandes Vs. State of Goa and Others(Civil Appeal No. 2482 of 2014), the Supreme Court of India (“Supreme Court”) observed that even after a decade of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) being formulated, its implementation and enforcement is still inadequate. To remedy the situation, the Supreme Court issued various directions for effective implementation of the POSH Act. For reference, the POSH Act imposes an obligation on all employers, having 10 (ten) or more workers to set up an internal committee to look into sexual harassment complaints. It also lays down the procedure for conducting an inquiry into the complaints, amongst other things.
Brief Facts:
The Goa University initiated an inquiry against Mr. Aureliano Fernandes (“Appellant”) based on multiple complaints from female students alleging sexual harassment. An internal committee was formed, but the Appellant’s repeated absence during the enquiry proceedings led to an ex-parte order and his subsequent termination by the University. The Appellant, dissatisfied with the outcome, filed a writ petition challenging the decision in the High Court in Bombay (Goa Bench). However, the High Court upheld the committee’s decision, dismissing the Appellant’s claims of improper lack of fair opportunity and improper constitution of the committee.
The Appellant appealed to the Supreme Court, which found that the inquiry process was rushed, denying the Appellant adequate participation despite valid medical reasons. The Supreme Court observed that the hasty approach to the proceedings violated the principles of natural justice by denying the Appellant a fair opportunity to be heard. Due to these procedural irregularities, the Supreme Court overturned the judgment of the High Court, setting it aside. The matter was then remanded back to the internal committee for a fresh inquiry to be conducted in accordance with the principles of natural justice. Furthermore, the Supreme Court has directed that considering the significant amount of time that has passed, the respondents are instructed to complete the entire process within three months from the first date of hearing fixed by the internal committee.
Issue:
The primary issue in this case was the violation of the principles of natural justice in the inquiry conducted by the internal committee at Goa University. The Court voiced its concern regarding the “serious lapses” in the enforcement of the POSH Act, despite the passage of ten years since its enactment. The Supreme Court noted that the failures in enforcing the POSH Act are fundamentally counterproductive and undermine the very purpose of the POSH Act, which is to safeguard women in the workplace.
Directions:
With the aim of fulfilling the promise held by the POSH Act for working women across the country, the Supreme Court issued the following directions:
- The Union of India, State Governments, and Union Territories must conduct a time-bound assessment to verify if all relevant ministries, departments, government organizations, authorities, public sector undertakings, institutions, bodies, etc., have constituted Local Committees (“LCs”)/ Internal Committees (“ICs”), as the case may be. The composition of these committees must strictly adhere to the provisions of the POSH Act.
- Ensure that necessary information regarding the constitution and composition of LCs/ ICs, including email IDs and contact numbers of designated personnel, the procedure for filing online complaints, and relevant rules, regulations, and internal policies, is readily available on the websites of respective authorities, functionaries, organizations, institutions, bodies, etc. The provided information should be regularly updated.
- Authorities, managements, and employers must take immediate and effective measures to familiarize members of LCs/ ICs with their responsibilities and the proper conduct of inquiries when receiving complaints of workplace sexual harassment. This includes the entire process from complaint reception to conclusion of the inquiry and submission of the report.
- Regular orientation programs, workshops, seminars, and awareness campaigns should be conducted by authorities, managements, and employers to enhance the skills of LCs/ ICs members and educate women employees and women’s groups about the provisions of the POSH Act, its rules, and relevant regulations.
Conclusion:
While the Supreme Court’s directions specifically target government authorities, it is important to note that the POSH Act applies equally to private establishments. Therefore, it is likely that even private establishments will face increased scrutiny in the future. As the Supreme Court merely reaffirmed existing legal provisions, private employers are advised to ensure compliance with the POSH Act.
This case serves as a reminder that the enforcement of laws concerning workplace sexual harassment must prioritize fairness, ensuring that all parties involved are given a fair and reasonable opportunity to present their case. The judgment underscores the significance of diligently implementing and adhering to the provisions of the law to protect the rights and dignity of individuals in the workplace.
RETALIATION OR VICTIMISATION
The Supreme Court’s dismissal of a public interest litigation to protect complainants and witnesses of sexual harassment for retaliation leaves a gap in the implementation of the Prevention of Sexual Harassment Act. With India’s current laws insufficient to protect complainants and witnesses, ratifying international conventions becomes imperative to tackle this issue effectively.
On July 7, 2023, a division Bench of the Supreme Court comprising Chief Justice of India Dr D.Y. Chandrachud and Justice P.S. Narasimha delivered a judgment in the case of Sunita Thawani versus Union of India and Another. The Bench refused to entertain a public interest litigation (PIL) filed in relation to the issuance of directions for protecting complainants, witnesses and other persons in cases of sexual harassment from potential retaliation or victimisation at the hands of the accused person or the concerned organisation.
The petitioner was required to show specific instances of harm arising out of such retaliation or victimisation afflicted by an accused person or by any organisation. The Bench also remarked that passing a general Order without substantial evidence would lead to the creation of a new offence.
Although the Bench showed a disinclination towards entertaining the PIL, the petitioner has been given the liberty to explore alternative legal avenues.
The Supreme Court’s decision comes after the dismissal of a similar petition filed earlier before a Bench comprising Justices R. Banumathi and A.S. Bopanna.
In February 2020, the Delhi High Court refused to create a new category of offence in the Prevention of Sexual Harassment Act, 2013, namely, the offence of retaliation and victimisation.
In February 2020, the Delhi High Court refused to create a new category of offence in the Prevention of Sexual Harassment Act, 2013 (PoSH Act), namely, the offence of retaliation and victimisation.
In its reasoning, the court stated, “Retaliation, or victimisation, is only the provocation for an act of assault. If an act of assault amounts to sexual harassment, it would anyway be punishable under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
If it does not, it cannot be punishable under the said Act, as the Act deals with only offences of a sexual nature, and an offence which does not lead to sexual harassment, can obviously find no place therein.”
In 2018, Priya Ramani, a journalist, was accused of defaming M.J. Akbar, a former editor and Union minister, after she accused him of sexual misconduct.
Another case in point is when an additional district judge was subject to a sudden and illegal transfer in 2020, immediately after bringing a case of sexual harassment against the sitting high court judge of Madhya Pradesh.
In yet another instance, a female editor at a government publication house was discharged from her services during the pendency of a complaint of sexual harassment. The employer attributed the reason for her dismissal to her poor work performance.
Although Ramani was acquitted, the judge got her post back, and the editor was reinstated to her former position, these cases effectively capture the essence of retaliation faced by victims of sexual harassment.
The Delhi High Court has recently held there is “absolutely nothing” in the Sexual Harassment of Women at Workplace Act which limits its scope “only to cases where a woman employee is sexually harassed by another employee working in her own office, and excepts its application where the delinquent employee is employed elsewhere.
The court said equalizing of sexes in every aspect of life is a constitutional imperative and the working environment is required to be as safe for women as it is for men. A bench upheld an order passed by the Central Administrative Tribunal that had dismissed an IRS officer’s plea challenging the jurisdiction of an Internal Complaints Committee issuing him a notice, asking him to appear before it in relation to a sexual harassment complaint made against him by a woman officer.
In a much-needed move, the BCCI has finally come out in September, 2023 with a comprehensive policy on prevention of sexual harassment (POSH). The Board has also formed an Internal Complaints Committee (ICC) to address cases of sexual harassment of women at workplace under the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013.
The Delhi High Court recently refused to interfere with a decision by the Sports Authority of India (SAI) to relieve Ashan Kumar from the position of Indian Kabaddi Team (Boys) chief coach for the National Coaching Camp being held to prepare for the Asiad Games, 2023. [Shri Ashan Kumar v Union of India & Others]
On September 4, an FIR was registered against him on the complaint of a minor girl at Bhiwani police station in Haryana who accused the Kabbadi team coach of having sexually harassed her.
Bombay High Court: Privacy Guidelines for POSH Cases is Case-Specific: The Bombay High Court (“Court”), on 17th March 2022, issued a subsequent order to its order dated 24th September 2021, in the judgment of the P vs A & Ors., 2021, where it laid down a set a guidelines condemning the disclosure of the identities of the parties, even accidental disclosures, involved in matters falling under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) and Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“POSH Rules”). This subsequent order cleared the air around the application of the requirement of non-disclosure by stating that it was a case-specific order (mutually agreed to by the parties involved), and was not meant for general application.
The judgment dated 24th September 2021, among other strict guidelines, had condemned the disclosure of the names and details of the parties, and their witnesses, required such hearings to be conducted either in-camera or in the Judge’s Chambers, that disclosure of any information to the pubic/media or on social media without a special leave from the court shall amount to contempt of court.
Justice G.S. Patel said that such guidelines cannot be said to be applicable to a wider gamut of cases because such Rules of general applicability will have to be approved by the Full Court or the Hon’ble Chief Justice. Hence, a single judge will neither have the authority nor the jurisdiction to issue any such rules that will bind the Court in its entirety.
Additionally, these inadvertent lapses were also addressed in an order dated 11th October 2021, where it was clearly held that the proceedings were so because of a consent order.
Justice Patel also clarified that Ms. Abha Singh herself had suggested to hold in-camera hearings, hiding the names of the parties, and protecting privacy, upon being informed of an appeal filed in the Supreme Court against the same.
POSH Act complaint mechanism works in coordination with CDA Rules: Calcutta HC (19.05.2022)
The POSH Act mandates the employer to act on the recommendations of the IC. Therefore, the inquiry report cannot be said to be merely a preliminary investigation report. The order of punishment was passed by the Disciplinary authority merely on the basis of the IC report. A complaint of sexual harassment is inquired by the IC as per the POSH Act, but disciplinary action is taken under the service rules. The Division Bench after observing that the punishment imposed was not only disproportionate to the proven allegations but also does not express itself to be in the comity of rules prescribing the major penalties directed reconsideration of the issue of punishment.
Allahabad HC denies bail to lawyer accused of sexually harassing law student (26.05.2022)
Court considered the fact that prosecutrix was a junior in the office of applicant and the allegations were against, a person who is practicing law and a person in uniform, who is involved in a noble profession. Court remarked that the “office of a lawyer is not less respected than Courts of law.” Court observed that the act complained of by her against applicant, is told by her in the statements recorded under Sec-161 CR.P.C. and Sec-164 CR.P.C. They observed that there was no reason spelt out as to why the applicant was falsely implicated. The investigation for other accused persons is still pending and the apprehension of learned counsels for the State and the applicant being in a position to influence the investigation and tamper with the evidence cannot be ruled out. Looking to all the facts and circumstances of the case, court did not find it a fit case for bail and hence the bail application was rejected.
Kerala High Court: Political Parties Not Required to Have an ICC under POSH
The Kerala High Court (“Court”), on 17th March 2022, in the judgment of Centre for Constitutional Rights Research and Advocacy vs State of Kerala & Ors., 2022 upheld that political parties are under no compulsion to establish an Internal Complaints Committee (“ICC”) as mandated under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) due to the absence of an employer-employee relationship among their members.
It was held that since there existed no employer-employee relationship between the members of the political parties, they were not required to have an ICC.
Kerala High Court: Film Production Units are Required to Constitute an ICC under POSH Act
The Kerala High Court (“Court”), on 17th March, 2022, through the judgment of Women In Cinema Collective vs State Of Kerala, 2022 held that there did, for a fact, existed an employer-employee relationship between the actors and their respective production units, and that the film production units served as their “workplace” as defined under Section 2(o)(ii) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”).
Hon’ble Supreme Court of India says ‘Courts Should Avoid Hyper-Technical Interpretation of Service Rules’. On 3rd December, 2021, in the case of Union of India vs. M, (“case”), it was held by the Supreme Court of India that courts should avoid hyper-technical interpretation of service rules and mechanism pertaining to workplace harassment otherwise the entire process would become a punishment for the complainant.
The Court also commented that there was a rising trend of invalidating proceedings inquiring into sexual misconduct on the basis of ‘hyper-technical interpretation’ of service rules and gave the example of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 which lays down a mechanism to address harassment at the workplace. The Court stated that the legislative intent of such statutes wouldn’t come through if the appellate mechanism makes the entire process seem like a punishment for the complainant. The courts should be mindful of the power dynamics at the workplace and the trauma and difficulty a victim of workplace harassment faces. Courts should uphold the spirit of right to protection against sexual harassment which is a part of right to life and dignity under Article 21 of the Indian Constitution and interpret service rules and regulations pertaining to sexual harassment at the workplace in such a way that procedural and substantive justice is provided to the victims.
Supreme Court said that Madhya Pradesh Judge had not resigned voluntarily.
On 9th December 2021, in the case of Ms X vs Registrar General, High Court of Madhya Pradesh and another, it was held by the Supreme Court that the petitioner’s resignation from the post of Additional District & Sessions Judge, Gwalior was made in dire circumstances and therefore, is not voluntary.
The Court referred to the judgment Dr. Prabha Atri v. State of U.P. and Others [(2003) 1 SCC 701], In P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214], Moti Ram v. Param Dev [(1993) 2 SCC 725] and reiterated that ‘To constitute a ‘resignation’, it must be unconditional and with an intent to operate as such.’ Resignation is a voluntary surrender of a position by the one resigning, which should be made freely and not under duress. The petitioner’s resignation was made in exasperation and frustration and this injustice was being done by the very own Institution of Judiciary.
Provisions of special law (POSH Act) would prevail over general law (Service Rules) if special law has differing provisions. The Gauhati High Court, on 9th September 2021, in the case of AP Vs. The Gauhati High Court and Ors. held that in sexual harassment proceedings, provisions of the Assam Services (Discipline and Appeal) Rules, 1964 (“the Rules of 1964”) would be applicable, except when special provisions are made under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013 (“POSH Law”).
Thus, the Court dictated that if any report is submitted by the IC stating that the allegation is proved then the disciplinary authority shall proceed in accordance with the Rules of 1964 regarding misconduct.
Six months jail for sexually harassing woman by using abusive language and showing middle finger. On 3rd December 2021, in the case of Gaondevi Police Station vs. Aniket Vijay Patil, (“Case”), it was held by the Court of the Girgaon Metropolitan Magistrate in Mumbai that using abusive language against a woman and showing her the middle finger on the main road constituted sexual harassment and an attack on the fundamental right to dignity of that woman. The accused was sentenced to 6 months of imprisonment.
POSH Act applies to sexual harassment complaints by girl students against teacher: Calcutta High Court 24.01.2022
While the teacher’s plea succeeded on technical grounds, (mainly the IC not formed as per the law) the Court recognised that the provisions of the POSH Act apply to girl students of a school.
The Calcutta High Court recently held that the definition of “aggrieved woman” under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 Act (POSH Act) includes girl students, even as it quashed orders for suspension of a school teacher accused of sexual harassment by around 67 students. [Pawan Kumar Niroula v. Union of India]. It is to be noted that the suspension was quashed on technical grounds.
Madras High Court restrains Lenna Manimekalai and Susi Ganesan from talking to media in #metoo case. Justice Quddhose of the Madras High Court on 20.01.2022 restrained filmmaker and poet, Leena Manimekalai and film producer Susi Ganesan from going to the press or making social media comments regarding #MeToo sexual harassment allegations as the matter is ‘sub-judice’
The Supreme Court on 3rd January 2022 in the matter of Maharashtra State Road Transport Corporation Vs. Dilip Uttam Jayabhay held that an employee can be dismissed from service based on findings of a disciplinary proceeding for misconduct even though he has been acquitted of the charges by a court of law.
The Supreme Court on 4th January 2022 in the matter of The Rajasthan Marudhara Gramin Bank (RMGB) & Anr. Vs Ramesh Chandra Meena & Anr., held that there is no absolute right in favour of a delinquent officer to be represented through the agent of his choice in the departmental proceedings and the same can be restricted by the employer.
On 10th January 2022, in the case of Managing Director, HDFC Standard Life Insurance Company v. Suresh Babu, (“Case”), it was held by the High Court of Kerala that while cross-examination of witnesses may not be necessary during sexual harassment proceedings, however, the accused must be provided with copies of the complaint, documents and statements filed.
The Court ordered for the IC report to be set aside and for the case to be remitted for further inquiry instead of a denova inquiry. It said that Respondent should be provided with copies of the complaint and the documents filed. However, it said that there was to be no verbal cross-examination of the complainants/witnesses unless all of them consented to it. The Respondent was also to be placed on suspension till this order was complied with.
Central Administrative Tribunal- Transfer Made on the Basis of IC Recommendations Can Only be Challenged if Found to be Perverse or Malafide. On 24th December, 2021, in the case of Shantanu Mandal v. Union of India, the Central Administrative Tribunal (“CAT”) held that the transfer order made against the Appellant on the basis of the IC recommendations was made to maintain the administrative work environment and decorum at the hospital. The CAT dismissed the application challenging the transfer order of the Appellant by maintaining that this decision was made on the basis of public interest and administrative efficiency.
Madras High Court held that authorities are not entitled to reveal specific information to alleged harasser if it is a security risk. In the case of TV vs. Joint Director of School Education, the Madras High Court on 15th December 2021 held that authorities are not entitled to reveal specific information pertaining to sexual harassment complaints and proceedings to the alleged harasser if it would violate and risk the safety and privacy of the complainant. The Court analyzed the nature of the information sought by the Petitioner and observed that it included revealing the number of teachers who had complained to the District Educational Officer and a copy of the complaint and photographs of the teachers. The Court remarked that if such information was furnished then it would undoubtedly endanger the life or physical safety of the teachers and for security purposes, personal information pertaining to sexual harassment complaints needs to be protected. It has been held by the courts repeatedly that the names and identity of the complainants cannot be revealed. The facts and circumstances of the judgments cited by the Petitioner were held to be dissimilar and irrelevant to the present matter and a rejection of his RTI application would not disentitle him from defending the allegations made against him before any competent authority. Hence the Court dismissed the writ petition by holding that an application under the RTI Act cannot be related to disciplinary or any other proceedings pending before the various authorities under the existing rules or enactments.
Delhi High Court on Selection of Alleged Harasser as the Head of Department On 9th December 2021, in the case of RKS v University of Delhi and Ors., it was held by the High Court of New Delhi that there is no prejudice caused against the alleged harasser if alleged harasser has been given a warning and their seniority level is overlooked and a professor junior to them is selected as the Head of Department, if it is done for a good and valid reason
In VKR vs. The Union of India and Others, 2022, the Tripura High Court (“Court”) observed that the express mentioning of instances of sexual harassment is not mandatory in the victim’s complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act, 2013”).
Allahabad High Court on sharing of sexually explicit images / videos consensually taken
In the matter of Guruvinder Singh vs. State of UP and Ors.,while rejecting the bail application, the Allahabad High Court (“Court”) on 4th October, 2021 observed that sexually explicit images or videos made by a partner in an intimate relationship with the consent of the subject, cannot be used as a form of revenge or harassment and that it would damage the dignity of the concerned.
Regarding “Dignity”, the Court referred to the judgement passed by the Supreme Court in the case of M. Nagraj v. Union of India, (2006) 8 SCC 2012 wherein the Apex Court has expressed that it is the duty of State not only to protect human dignity but to facilitate it by taking positive steps in that direction. While no exact definition of human dignity exists, it may be construed to refer to the intrinsic value of every human being, which is to be respected.
The concept of a human being’s “Privacy” was also elaborated. The Court referred to the decision of Hon’ble Apex Court in the case of K.S. Puttaswamy and another v. Union of India and others reported in (2017) 10 SCC 1, whereby the Apex Court held that the integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt.
In reference of the aforesaid judgements, the Court opined that sexually explicit images or videos made by a partner in an intimate relationship with the knowledge and consent of the subject, cannot be used as a form of revenge or harassment and that it would definitely distort/damage the dignity of the concerned.
It further said that the Court in such type of cases cannot close its eyes and by virtue of being parens patriae and protector of fundamental rights, the Court will come forward to protect the right of the subject and stringently deal with the person concerned. It also said that any act which outrages the modesty of a woman and misuses the same in cyberspace is contrary to the larger interest of the protection of the woman against exploitation and blackmailing.
Madras High Court observed that Misunderstandings, Personal Feuds, etc. at Workplace do not constitute Sexual Harassment. On 25th August 2021, in the case of Mary Rajasekaran vs. University of Madras and Ors., while hearing clubbed petitions, Madras High Court held that personal feud, misunderstandings and not getting along with a colleague would not constitute sexual harassment.
Delhi High Court Observes that principles of ‘Security of Tenure’ would also apply to IC Members. In the matter of Neeraj Bala vs. Union of India & Ors., the Delhi High Court on 19th July, 2021 observed that – the principles which apply to security of tenure of Judges and Presiding Officers of various quasi-judicial tribunals would, also apply to Members/Presiding Officers of an Internal Committee (“IC”). The Court Held that:
- When an officer, by virtue of a post, is also a Presiding Officer or Member of the IC, ordinarily there should be security of tenure.
- The principles which apply to security of tenure of Judges and Presiding Officers of various quasi-judicial tribunals would, also apply to Members/Presiding Officers of IC.
- In coming to this conclusion, the Court also referred to the decision of Supreme Court in Madras Bar Association Vs. Union of India(2014) 10 SCC 1. It said that all Courts are Tribunals; any Tribunal to which any existing jurisdiction of Court is transferred should also be a Judicial Tribunal, meaning inter alia that the Members of the Tribunal should have the independence and security of tenure associated with Judicial Tribunals. In this regard, Court also referred to Section 11 (3) of the POSH Act and said that for the purpose of making an inquiry, IC has the same powers as are vested in a Civil Court under Code of Civil Procedure, 1908 (for summoning and enforcing attendance of any person and examining him on oath and requiring discovery and production of documents).
- Accordingly, Court also said that the Presiding Officers and Members of IC, are also ‘Judges’ within the meaning of Section 19 of the Indian Penal Code, 1960. Section 19 of Indian Penal Code states that — “The word “Judge” denotes not only every person who is officially designated as a Judge, but also every person,— who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.”
- Responding to the contention of the Respondent on transfer due to administrative exigencies, the Court said that the transfer was punitive in nature and when a personnel/officer by virtue of a post also occupies the position as aforesaid, the administrative exigencies have to be weighed vis-à-vis the consideration of the need for security of tenure, inasmuch as, else there would always be “apprehension that on returning unfavourable findings, the sword of transfer would be brought down.”
Internal Committee required to take permission of the Disciplinary Authority before inquiring into a complaint of sexual harassment: Himachal Pradesh High Court
On 10th September 2021, in the case of PKT Vs. State of Himachal Pradesh and Ors., Himachal Pradesh High Court held that in a proceeding on allegations of sexual harassment, the Internal Committee (“IC”) had no authority to issue a memorandum to proceed with inquiry without permission of the Disciplinary Authority (under Central Civil Services (Classification, Control and Appeal) Rules 1965). The said memo issued was also in contravention of the Office Memorandum dated 16.07.2015 (“Office Memorandum”) and Circular dated 26.06.2019(“Circular”). The Office Memorandum was issued by Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, and outlined steps for conducting inquiry in complaints of sexual harassment. The Circular was issued by the Department of Personnel Government of Himachal Pradesh.
The Bombay High Court on 9th January 2019 in the matter of Sapana Korde Nee Ketaki A. Ghodinde v. The State of Maharashtra & Ors., observed that interfering with a woman’s work or creating an intimidating or offensive or hostile work environment for a woman at her workplace also amounts to sexual harassment of woman at workplace.
The Abusive Language May Have A Demoralizing Effect On Working Women, But The Same Cannot Be Called Sexually Coloured Remarks. The Central Administrative Tribunal, New Delhi on 16th May 2008 in the matter of Chhttar Pal v. The Lt. Governor & Ors., observed that unless the previous conduct of the applicant was subject matter of the charge which the complainant has levied against him, the evidence on that behalf cannot be looked into.
The Consent Given In Consequence Of Any Misconception Or Fear Cannot Be Said To Be A Free Consent: Madhya Pradesh High Court. The Madhya Pradesh High Court in the matter of Rajkishore Shrivastava vs. State of MP & Anr. on 2nd August 2021 observed that by giving the prosecutrix a false assurance that she would be reemployed by the applicant (Rajkishore) in his hospital, the consent of the prosecutrix to involve in sexual act with him cannot be said to be a free consent.
On 20th July, 2021, in the case of Arabi U. Vs. The Registrar, Mangalore University, Mangalagangotri and Ors., the Karnataka High Court held that the decision to impose penalty of dismissal without inquiry as contemplated under the Service Rules is clearly an act without jurisdiction.
In Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College and Ors., Calcutta High Court, decided on 27th November, 2020 that Respondent can be of the same gender as the Complainant.
In a judgement dated 25th November, 2019, the Delhi High Court in the case of Ajay Tiwary vs University of Delhi & Ors. upheld the compulsory retirement of the Petitioner and rejected the Petitioner’s contention that it would not be an act of sexual harassment if the student had allegedly consented to any acts.
In the case of Bhuwan Chandra Pandey vs. Union of India and Ors., before the High Court of Uttarakhand at Nainital, Decided On: 15.06.2020, it was held that Sole testimony of victim of sexual harassment is acceptable in a departmental inquiry. The court observed that even circumstantial evidence or hearsay evidence is permissible in departmental inquiries.
In a judgment dated 09th January, 2020, the Armed Forces Tribunal, Principal Bench at Delhi (“Tribunal”) in the case of Praveen Bhatt v/s Union of India and Ors held that Section 16 of the Act (dealing with confidentiality of proceedings) merely prohibits publication of the material information and its knowledge being brought in the public domain by the press or media while the proceedings are held under the Act. The Act does not prevent or prohibit consideration of the material for the purpose of judicial investigation where consideration of such material may be necessary.
Recently, in the case of Punjab Sind Bank & Ors vs. Durgesh Kunwar, Hon’ble Supreme Court of India held that with regards to the composition of the IC and its independent member, “Clause (c) of Section 4(2) (of the act) indicates that one member of the ICC has to be drawn from amongst a non-governmental organization or association committed to the cause of women or a person familiar with issues relating to Sexual Harassment The purpose of having such a member is to ensure the presence of an independent person who can aid, advise and assist the Committee. It obviates an institutional bias. During the course of hearing, we have received a confirmation from the learned senior Counsel appearing on behalf of the bank that Ms. Seema Gupta was, in fact, a panel lawyer of the bank at the material time. This being the position, we see no reason or justification on the part of the bank not to accede to the request of the Respondent for replacing Ms. Seema Gupta with a truly independent third party having regard to the provisions of Section 4(2)(c) of the Act. This is a significant facet which goes to the root of the constitution of the ICC which was set up to enquire into the allegations which were levelled by the Respondent.”
- With regards to LC’s jurisdiction, SC said that since the Zonal Manager against whom the Complaint of sexual harassment was levied was not the employer, the LC did not have jurisdiction.
With regards to transfer, SC, while observing the facts and materials on record, upheld the order of the Madhya Pradesh High Court and quashed the order of transfer. SC was of the view that there was no doubt that the Respondent had been victimized. The Court observed that, “Her reports of irregularities in the Branch met with a reprisal. She was transferred out and sent to a branch which was expected to be occupied by a Scale I officer. This is symptomatic of a carrot and stick policy adopted to suborn the dignity of a woman who is aggrieved by unfair treatment at her workplace. The law cannot countenance this. The order of transfer was an act of unfair treatment and is vitiated by malafides.”
On transfer, SC also observed that, “transfer is an exigency of service. An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus. Unless an order of transfer is established to be malafide or contrary to a statutory provision or has been issued by an authority not competent to order transfer, the Court in exercise of judicial review would not be inclined to interfere.”
In an interim order dated 10th February, 2020, the Delhi High Court in the case of Ms. Fauzia Rubbani v/s Delhi Woman Commission and Ors. directed the employer to pay a lumpsum amount of INR 1,20,000 to the Petitioner in lieu of the allegations raised by her that she was terminated from the Company after raising complaints of sexual harassment. The amount was directed to be paid subject to further orders of the Court.
In a judgment dated 28th January, 2020, the Supreme Court (“SC“), in the case of Vijayakumaran C.P.V. (“Appellant”) v/s Central University of Kerala & Ors, (“Respondent”), said that since the report of internal committee (“IC”) confirming allegations of sexual harassment against Appellant formed basis of his termination, the order of termination will be considered to be ex-facie stigmatic and therefore, Respondent would be required to do further inquiry against Appellant as per service rules before taking such action.
In a judgment dated 19th November, 2019, the Delhi High Court in the case of Abhilasha Dwivedi vs. Department of Women & Child Development NCT of Delhi and Ors., held that mere shouting in anger at a woman, cannot come under the definition of sexual harassment as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
The Supreme Court on 8th April 2019, in the case of The Secretary, Lucy Sequeira Trust And Anr. v. Kailash Ramesh Tandel held that departmental proceeding and proceedings in a criminal court are completely different as the purpose, the standard of proof and the approach are all completely different. The initiation of the process in a departmental proceeding, in case of alleged charges of sexual harassment charges cannot be said to be amounting to contempt of court even if the criminal proceedings were pending before a judicial forum.
In a judgment dated 16th January, 2020, the Goa High Court in the case of Ruchika Kedia vs. The Internal Complaints, Goa Institute of Management and others quashed the inquiry report of the Internal Committee and directed the Goa Institute of Management (“Institute”) to comply with their regulations and constitute an Internal Committee in compliance with the Regulations.