By Anuradha Gandhi and Isha Sharma
Introduction
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also known as the POSH Act was enacted with the core objective of protecting women from sexual harassment at workplace and ensuring a safe, dignified and respectful working environment.
But this immediately raises an important question- what exactly constitutes a ‘workplace’ under the Act and where does its ambit end?
Expansive Definition of Workplace
A landmark judgment in this context is Saurabh Mallick vs. Comptroller & Auditor General of India, where the court underscored the importance of adopting a forward-looking approach, considering technological advancements and changing work patterns.
The Court rejected a narrow interpretation of workplace and observed that while no rigid formula can be prescribed, the following factors can help in determining whether a place forms part of the extended workplace:
- Proximity to the primary place of work
- Degree of control exercised by the employer or management over the location
- Whether the locations function as an extension of the employees’ work environment
Inclusion of Virtual Workspaces
The Hon’ble Rajasthan High Court in the case of Sanjeev Mishra vs The Disciplinary Authority and General Manager, Bank of Baroda analyzed the facts and held that virtual workspaces can indeed be considered as part of workplace under POSH Act.
The court further held that “In the present digital world, workplace for employees working in one particular organization (in this case a Bank) and who have earlier worked in the same Branch and later on shifted to different branches which may be situated in different States has to be treated completely as one workplace on a digital platform. Thus, if a person may be posted in Jaipur and acts on a digital platform harassing another lady who may be posted in a different State, it would come within the ambit of being harassed in a common workplace.”[1]
Social Media Interactions- Are they Workplaces Too?
Can inappropriate interactions on these platforms also fall within the ambit of ‘workplace’ under the POSH Act?
A telling example comes from an educational institution case before the Delhi High Court involving an Assistant Professor at a reputed university.
Background
Four separate complaints of sexual harassment were filed against the Professor (Hereinafter also referred to as Petitioner)-three from current students and one from an alumnus who had previously been his student. The allegations centered on sexually suggestive messages and advances sent via Facebook Messenger and WhatsApp chats.
The University’s Internal Complaints Committee (ICC) constituted under the POSH Act, 2013 and UGC Regulations, 2015, initiated an inquiry. As an interim measure, the Professor was barred from entering the campus and directed to go on leave.
The Professor responded with detailed replies, categorically denying the allegations, claiming that his intentions were misunderstood and alleging a conspiracy by students and departmental colleagues.
Findings of the ICC
Court AnalyisThe Hon’ble Delhi High Court’s judgement, delivered by Hon’ble Mr. Justice Subramonium Prasad, addresses several crucial legal issues regarding the scope of the workplace under the POSH Act, procedural compliance in ICC inquiries and power dynamics inherent in academic settings.
Extended Workplace Doctrine
A central pillar of the court’s reasoning is the extended workplace doctrine.
“It is often seen that female students are reluctant to report of such misconduct, and many students even drop out of colleges as they face ridicule and humiliation. The purpose of the POSH Act inter alia is to provide and assure female students of a safe and secure environment where they can study freely. No doubt, authorities must be careful that the POSH Act is not abused and innocents are not punished but at the same time, the essence of the legislation cannot be sacrificed at the altar of procedural irregularities”.
The court held that digital interactions within the teacher-student hierarchy unequivocally constitute a workplace under Section 2(o) of the POSH Act.
Most importantly, the court rejected the respondent professor’s defense that the misconduct occurring through “private messaging” platforms like Facebook messenger and WhatsApp falls outside the ambit of workplace harassment. The judgement emphasized that harassment within the context of professional, hierarchal relationship transcends the medium of communication and digital platforms used for academic interaction are integrally part of the workplace.
Whether the constitution of the ICC was in accordance with the POSH Law?
In the present case, the ICC consisted of 10 members. Vide Office Order dated 13.02.2018 bearing no. BC/ICC/2018/1482, the ICC constituted the Enquiry Committee with 5 of its members including the student representative, faculty representative and the external member to facilitate recording of evidence. Having perused the record, the Court finds that there was no procedural violation in ICC constituting Enquiry Committee as the same meets criteria stipulated under Rule 7(7) of the POSH Rules
On the question of nomination of the two faculty members, this Court finds that while Regulation 4(1)(b) stipulates that the ICC shall inter alia, comprise of two faculty members, the fact that instead of two, three members were nominated does not by itself vitiate the composition of the ICC, more so, in the absence of anything on record to reveal any prejudice caused to the Petitioner by the said composition.
It is to be noted that even the SAKSHAM Report of the UGC recommends that the ICCs must involve representation from all sections, particularly junior levels, of the workplaces and that such representation must not be directly nominated by the employer. Rather, transparency and a principled basis for membership of the ICC should be arrived at after involving all sections of the Higher Educational Institution community. Thus, this Court finds no anomaly in the constitution of the ICC.
Procedural Validity
The Professor/Petitioner argued that he was denied the right to face-to-face cross examination. To which the court emphasized that in sexual harassment cases, the process must not retraumatize complainants.
“Since sexual harassment is an exercise of power that either replicates such inequalities or causes further trauma to the complainant(s). The ICC proceedings should therefore, ensure that at no time during the receiving of complaints and recording procedure, should the respondent(s) and the complainant(s) be placed face-to-face, or be put in a situation where they may be face-to-face (for instance, they shall not be called before the ICC at the same time or be made to wait in the same place), in order to protect the complainant from facing further trauma and/or give rise to any safety issues. The identity of witnesses should not be revealed to the respondent or any person acting on his behalf. Complainants and other witnesses should not be examined in the presence of the respondent.”
It was observed that the ICC had provided deposition records and allowed the Professor to submit written questions, which the Committee then shall put to the complainants on his behalf- a procedure which the court found both fair and protective.
Thus, the court finds it easily discernible that the procedure adopted by the ICC was neither unreasonable nor arbitrary.
Evaluation of Evidence and Limitation
The Court clarified that strict rules of evidence do not apply to domestic inquiries and held that ‘It is open to the Adjudicating Authority, in this case, the ICC, to accept, rely and evaluate any evidence having probative value and come to its own conclusion(s), keeping in mind to adopt a judicial approach and maintain objectivity, ensure exclusion of extraneous material and observance of the rules of natural justice and fair play.’
Further, with regard to the reasoning of the ICC to condone the delay in filing of the complaints, the court reiterated that the POSH Act and UGC Regulations were enacted to provide protection against sexual harassment of women at workplace and higher educational institutions and for the effective prevention and redressal complaints of sexual harassment.
The court noted that there would have been some substance in the arguments of the Petitioner (Professor), had it been a case of single incident which was reported beyond the period of limitation. However, in the present case, the complaints cannot be treated in isolation or as time-bared events.
Power Dynamics and educational environment
Hon’ble Mr. Justice Subramonium Prasad poignantly remarked, “Teachers shape the career of young aspiring students for a better future. The act of sexual harassment done by these very teachers, who are considered as our guides and mentors, against young female students who have just attained majority, has a deleterious effect on the psyche of such students.”
The court highlighted the special duty of care educators owe to their students and recognized that harassment in any form physical, verbal or digital, substantially discourages reporting and can lead to adverse consequences such as academic dropouts.
The petition was therefore dismissed, upholding the IC’s conclusions and the disciplinary authority’s decision of compulsory retirement along with compensation to the complainants.