By Anuradha Gandhi and Isha Sharma
Introduction
In a significant and groundbreaking judgment, the Hon’ble Madras High Court has addressed the critical issue of sexual harassment at workplace in the case of R. Mohanakrishnan vs. The Deputy Inspector General of Police (DIG).
This ruling, reserved on April 25, 2024 and pronounced on June 11,2024, has set a precedent by affirming that even an isolated instance of sexual harassment can be considered a “continuing offence” if it is severe and causes ongoing trauma and fear in the victim’s mind. The decision intricately balanced the sensitivity required in handling sexual harassment cases with the necessity of ensuring procedural fairness for the accused.
The judgment unequivocally states that such offences should not be constrained by the six-month limitation period stipulated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, also known as the POSH Act. This landmark ruling emphasized the importance of acknowledging the continuous impact of severe offenses and the trauma that follows such incidents, which can lead to delay in victim’s decision to come forward.
Facts of the Case
The court was hearing a petition filed by a superintendent in the district police office of Nilgiris district in Tamil Nadu, under Article 226 of the Constitution of India, praying the Court to issue a Writ of Certiorari, challenging the enquiry report of the Internal Complaints Committee (ICC), regarding a rape complaint filed against him by one of his female colleagues. [1]
The incident was alleged to have occurred in April 2018 but the formal complaint was lodged in December 05, 2022 before the Superintendent of Police who later thought it fit to refer the complaint to the IC.
The petitioner argued that the investigation should be dismissed as it commenced more than 4 years after the alleged incident.
Contentions on behalf of the Petitioner:
- According to Section 9 of the POSH Act, the law stipulated a six-month period of limitation for filing complaints pertaining to sexual harassment at workplaces. Hence, the proceedings initiated by the ICC are barred by limitation and should be dismissed.
With regard to this, the petitioner placed reliance towards the case K. Reeja vs. Pradeep T.C. and Ors, to contend that when the complaint is even beyond the condonable time limit, the authorities have no power to act upon the said complaint and pass orders.
- The Committee did not conduct the enquiry as contemplated under Section 7 of the POSH Act. It failed to send a copy of the complaint to the petitioner within a period of 7 working days. Only after the persistent effort of the petitioner, a copy of the complaint was furnished to him.
- The Committee did not also follow the principles of natural justice as the witnesses were not examined in the presence of the petitioner and no opportunity was granted to him to cross-examine.
Submissions on behalf of the Respondent/Victim:
The State Government opposed the plea, stating that the complaint was lodged by the victim to the Superintendent of Police, who later thought it fit to refer the complaint to the ICC. Hence, the limitation as stipulated under Section 9 of the Act will not be applicable as the period specified in this provision shall be applicable only if the victim had made a complaint to the ICC and the period which is mentioned in Section 9 is not applicable when the complaint is referred by the employer, which is the case herein.
Further, it was argued that the petitioner had indulged in a series of misconduct and the respondent was subjected to rape and due to such a heinous crime committed against her, out of fear, the respondent could not lodge the complaint immediately as in such a situation, every day the victim is prevented from lodging a complaint. Hence, it was pleaded on behalf of the respondent that such acts of sexual harassment should be held to be a continuing act and the argument relating to the period of limitation must be rejected.
In addition, with regard to other contentions raised by the petitioner pertaining to non-furnishing of documents and cross-examination of witnesses, the learned counsel appearing on behalf of the respondent submitted that the copy of the complaint and other materials which are sought by the petitioner were duly furnished by the ICC. And, considering the sensitive nature of the case and the frailty of the victim, instead of directly being permitted to cross-examine the victim, pertinent questions as per the petitioner’s case were put across the victim and their answers were elucidated. Hence, the question of non-compliance with the principles of natural justice do not hold any water.
Moreover, reliance was also drawn towards the judgment of the Hon’ble High Court in Ashok Kumar Singh vs. University of Delhi and Ors., where under the High Court of New Delhi had considered the atmosphere of a sexual harassment case and the necessity for giving the victim a space to express her case had upheld the cross-examination by the local commissioner himself by permitting the petitioner to submit a questionnaire.
Questions Raised:
Considering the submissions made on either side and perusing the material records, broadly two questions arose in the instant case,
Question 1:
Whether or not the impugned enquiry report is liable to be quashed, as the complaint is beyond six months and hence violative of Section 9 of the POSH Act?
The Court considered that, as a matter of fact, the offence complained by the victim was a serious one having the effect of causing grave mental trauma and stress to the victim, pushing her to a dilemma not to reveal or complain due to the fear of secondary and tertiary victimization, on the other hand, she was unable to withstand, swallow or suppress the same, then that state of victim fits under the definition of undergoing continuous sexual harassment. So long she undergoes such a phenomenon, the same is directly attributable only to the perpetrator and therefore would amount to a continuing offence as such a phenomenon is not just the effect of the act, but is the injury itself.
The court wisely considered that the injury is not merely complete just by the forcible physical intercourse but adds up every day when the victim is thereafter made to silently keep quiet and also face the petitioner at the workplace. With regard to this, the court reiterated the judgment of the Hon’ble Supreme Court in the case of Udai Shankar Awasthi v. State of UP, wherein it was held that:
“In case a wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the said act may continue. If the wrongful act is of such character that the injury caused by it itself continues, then the said act constitutes a continuing wrong.”
Thus, the court emphasized that the instant case is not an isolated incident of misconduct such as passing lewd remarks or inappropriate touching etc. but of a serious offense such as rape or continuous molestation or harassment, which shall be construed as a continuing misconduct. Therefore, the submission of the petitioner for non-admissibility of complaint on the ground of limitation as specified under Section 9 was rejected.
“Further, the other contentions for the petitioner regarding non-supply of complaint within the time frame, not acting upon the report within the time frame, etc. the court held that these are mere timelines intended to ensure prompt action and are no grounds for the delinquent to wriggle out of punishment or stall the very inquiry itself. Thus, the petitioner has to defend the charges in the inquiry on merits.
Question 2:
Whether or not, the impugned report is liable to be quashed for violation of principles of natural justice?
With regard to the questions concerned that whether there was any violation of principles of natural justice for not providing the petitioner with the opportunity to cross-examine, the court addressed the procedural fairness of the ICC’s actions.
Given the sensitivity of the issue, the court upheld that it was justifiable for the ICC not to permit the victim to face the accused directly for cross-examination, considering the serious trauma and stress she must have faced.
Nonetheless, the court identified a significant procedural flaw stating that the ICC had erred by not allowing the petitioner to cross examine the witnesses. The court emphasized that the petitioner should have been allowed to prepare questions for the witnesses, which should then be presented to the witnesses directly by a member of the committee. This procedural lapse, the court stated, to be a violation of principle of fair hearing.
As a result, the court ruled that the petitioner was entitled to partial success. The inquiry report was deemed partially flawed due to the lack of opportunity for the petitioner to cross-examine the witnesses. Consequently, the court ordered that the matter be remitted back to the ICC to resume the inquiry from the stage where this procedural omission occurred.
Judgment:
Given the aforesaid findings, the ruling of the Hon’ble Mr. Justice D Bharatha Chakravarthy, presiding over the single bench, serves as beacon of hope and fairness, balancing the need for sensitivity towards victim with the necessity of ensuring procedural justice for the accused.
Thus, the Hon’ble High Court allowed the Writ Petition stating that on the following terms:
- The impugned enquiry report of the ICC dated February 06, 2023 shall stand set aside;
- The proceedings of the IC including the statements recorded so far, questions which were put to the witnesses and their version, and questioning of the delinquent employee shall all hold good;
- The ICC as far as possible in the same composition shall continue with the enquiry in the manner hereinafter delineated. It is made clear that if anyone or some members in the ICC are not available, the enquiry being statutory in nature and all the procedures being recorded stage wise, shall be continued from the present stage by replacing with a new member, if necessary;
- The ICC shall reassemble/reconstitute and such committee shall conduct the next enquiry on July 01, 2024;
- On the said date, the petitioner shall appear before the committee and among all the witnesses who are already examined, the petitioner can indicate the names of the witnesses whom he would prefer to cross-examine, such witness shall be re-summoned by the committee for cross-examination and the same may be permitted by the ICC;
- On such adjourned date, without fail on the dates of the witnesses being present, the petitioner shall cross-examine them. If the petitioner fails to cross-examine the witnesses on such date fixed by the ICC, the petitioner will forfeit his right to cross-examine the particular witness;
- As far as the victims are concerned, if the committee is of the opinion that the victims need not be exposed directly before the delinquent, then the victims shall be protected by a screen and answer the questions or then the delinquent/petitioner shall prepare a list of questions and the questions can be administered by any other employee or who may be chosen by the petitioner, who may not be the rank higher than that of the petitioner, viz, the Superintendent; If the petitioner is unable to make such a choice, such questions can be administered by the ICC itself to the victims;
- The petitioner had already examined the witnesses on his part and if he chooses to examine any other witnesses, he can also do the same;
- After completion of evidence, the petitioner can also be permitted to make such oral or written arguments before the ICC and the committee shall arrive at a finding and submit its report afresh by objectively considering the evidence on record, without reference to the present report which is beings set aside by this Court;
- The ICC shall complete the entire exercise within 60 days and as far as possible conduct the proceedings on a day-to-day basis and shall make every endeavor to complete the proceedings as directed above within 60 days from July 01, 2024 i.e., on or before August 31, 2024;
- Upon receipt of the enquiry report by the ICC, the disciplinary authority shall take further steps to complete the disciplinary proceedings as the case may be, as if it received the enquiry report pursuant to the charge memorandum under 17(b) of the Rules, within a period of four weeks therefrom. If the disciplinary authority is of the opinion that a punishment has to be imposed on the delinquent, then issue a second show cause notice and a decision should be arrived only after hearing the petitioner. Such exercise shall be completed within four weeks from the date of receipt of the enquiry report by the ICC;
Conclusion:
The Court’s decision reflects a deep understanding of the psychological burden carried by victim. It emphasizes that the trauma does not end with the incident but continues to affect the victim long afterward. By recognizing the concept of a continuing offence, the judgment ensures that perpetrators cannot evade accountability merely due to procedural technicalities.
This ruling is a landmark step in strengthening the protection mechanisms for women in the workplace. It sends a powerful message that the legal system acknowledged the complexities and emotional difficulties faced by victim of sexual harassment and is committed to providing them with the justice they deserve.
[1] W.P. No. 10707 of 2024