By Anuradha Gandhi and Rachita Thakur
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the “POSH Act”) was enacted with the broad aim of addressing the need to keep a check on increasing instances of sexual harassment with women at workplace.
However, despite there being a legislation in force, lack of awareness towards enforcement of the procedures established under the law can not only defy the very purpose of the POSH Act but is also against the principles of natural justice.
In one such appeal before the Industrial Tribunal (hereinafter referred to as the “Tribunal”), the Tribunal heard the appeal at length and laid down its decision after observing and analyzing the provisions, aims and objectives of the POSH Act.
Reason for filing of appeal before the Tribunal
The Appeal was filed by the Appellant against the judgment of the IC (hereinafter referred to as the “Respondent Official”) of the Standard Chartered Bank (hereinafter referred to as the “Bank”) passed in the case of sexual harassment against an employee of the Bank (hereinafter referred to as the “Accused”).
The Appellant stated that the IC passed the judgment holding the Accused guilty of the offence of sexual harassment but no punishment or compensation was passed against him. Aggrieved from the same, the Appellant, thereafter filed a criminal writ petition however, the same was withdrawn with the liberty to file fresh petition under appropriate forum, post which the Appellant received an e-mail dated September 29, 2022 from the presiding officer of the IC that a written warning had been issued to the accused and he had already resigned from the services.
In addition to the aforementioned ground for preferring the appeal, the Appellant had also cited the following grounds for preferring the appeal before the Tribunal:
1. The IC acted in an arbitrary manner and against all the principles of natural justice by bringing anonymous witnesses and declining to reveal the identity of the anonymous witness;
2. The IC flouted the provision for maintaining confidentiality by disclosing the name of the appellant.
Observations of the Tribunal
The Tribunal made following observations with respect to sexual harassment:
a. Sexual harassment is an expression of unhealthy human relationship and is not just the violation of dignity, right to social security and right to equality guaranteed to human beings but is also a violation of right to life and peaceful existence guaranteed under the law;
b. Sexual harassment is a universal problem and its gravity is felt by all concerned around the world;
c. It was noted that the nations across the world have gone for various legal approaches to curb harassment issues and with the law in India for safety of women at workplace every woman at the place of work and study should be protected from sexual harassment, intimidation and exploitation while they are associated with the campus/organization.
The following observations were made with respect of the conduct of the IC while conducting the POSH inquiry:
While addressing the matter, the Tribunal observed that the IC is a fact-finding body that gives recommendations on allegations of sexual harassment at the workplace and that the IC is not bound by the complexities and rigors of courts and tribunals. The IC is not bound by technical procedures but is only to ensure natural justice to parties and thus IC is free to devise its procedure depending on the peculiar circumstances of the case before it while ensuring natural justice.
Stating that, the Tribunal iterated that the scope of interference by Courts should be limited to ensure that there are no procedural irregularities or violations of principles of natural justice, and once the ICC has adequately and appropriately addressed a complaint of sexual harassment, it is not open to the courts to look into the merits of the matter.
In reference to the present matter, the Tribunal noted that before the conclusion of proceedings of the POSH inquiry by the IC, the Bank, for the reasons best known to them, accepted the resignation letter of the Accused and later also served the findings of the IC to him which is of no use as he had already resigned from the management of the Bank. Rather, no punishment was awarded to him.
Anonymity of Witness
It was further observed that the Bank never tried to get to the roots of the incident and no heed was paid to the grievances of the Appellant. In fact the IC on its own accord, during the POSH inquiry, brought a witness and treated the witness anonymous despite the objection raised by the Appellant and never disclosed the name. It was further noted that the biased, partial and one-sided behavior of IC was well depicted from the fact when the Appellant was asked to share questions for cross-examination in advance that too because the Accused had expressed his discomfort in cross-examination without having questions in writing in advance.
The Tribunal observed the following:
“This practice adopted by Internal Committee is totally against principles of natural justice and any anonymous witness cannot be permitted to be produced in enquiry under POSH Act and the practice followed by IC in the present case was prejudicial and biased towards the appellant.”
Observations of the Tribunal for employers and organisations:
It was observed 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 and in spirit. It is often seen that the victim becomes the target of the system by which she is governed and victim is criticized and humiliated.
The Tribunal analyzed the provisions of the POSH Act in detail and discussed the steps that are to be followed by the organizations in order to create a healthy workplace for women employees that includes the following:
A. Drafting Prevention of Sexual Harassment Policy.
B. Constitution of Internal Committee (IC) to handle complaints regarding sexual harassment.
C. Create awareness among employees regarding their rights and responsibilities for creating a safe workplace.
D. Annual return on POSH compliances.
The Tribunal further reiterated the objectives with which the POSH Act was enacted thereby reminding organisations to not to defy the aim and intent of the same and observed that it is the employer who is responsible for implementing policies and procedures to prevent sexual harassment, providing training to employees and managers and establishing an Internal Committee to investigate and address complaints of sexual harassment. The employers are also required to display information about the Act and the complaint procedure in a prominent location at the workplace.
Directions of the Tribunal
The Tribunal added that the due to lack of proper awareness of this POSH Act, respondent bank failed to create a safe and comfortable work environment and further to identify and prevent it.
• To the Accused
Due to the acts of the Accused the Complainant had suffered a lot during the period which cannot be compensated in terms of money as her career was put on stake at the hands of the Accused who was then directed to issue unconditional apology and pay the litigation cost of Rs. 2 lakhs to her (which was further reduced to Rs. 1,50,000 keeping in consideration the financial situation of the Accused), without prejudice to his rights and contentions, to Appellant as litigation expenses subject to condition that he wants to end this litigation for once and for all.
• Directions to the Respondent Bank
The Tribunal in the course of POSH Inquiry drew its attention to the internet generated reports that say that there were several other complaints of sexual harassment by other female employees against male employees of the Respondent Bank. However, the said complaints had fallen onto deaf ears. Thus, the Tribunal Advised the Respondent Bank, without commenting on the authenticity of said reports, to find the facts and if they are true then introspection by the Bank is required to curb this menace.
The Bank was directed:
a. to pay at least Rs. 50,000 as litigation cost to Appellant. The Bank, however, was not directed to pay any compensation to the Appellant as the complaint was dealt with by the IC and the Accused was also found to be guilty.
b. 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.
• To Delhi Commission for Women
Delhi Commission for Women was directed to focus on substantive actions rather than superficial gestures just for the sake of publicity and bringing the name in newspaper or to find fault in the other institution when equal responsibility lies with them also.
The commission during the POSH Inquiry should also do concrete work rather than lip service. The tribunal went a step ahead and also directed the Delhi Commission for Women of NCT of Delhi and Central Ministry of Social Empowerment for Woman/Ministry of Women and Child Development to conduct seminars and workshops to impart legal knowledge to IC, management as well as LC and create awareness in the women regarding their rights against sexual harassment at the workplace.