Telling Woman Colleague That She Must Be Using JCB To Manage Her Hair Is Not Sexual Harassment: Bombay High Court

Telling a woman colleague that 'you must be using JCB to manage your hair' and singing a song related to her hair, is not sexual harassment under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, the Bombay High Court held recently while quashing a PoSH Act case against an employee of the HDFC bank.

Single-judge Justice Sandeep Marne said it is difficult to hold that the conduct of the petitioner Vindo Kachave would amount to sexual harassment. 

"So far as the first incident is concerned, the same relates to passing of comment by the Petitioner with regard to length and volume of the complainant's hair and he singing a song relating to her hair. Considering the nature of comment allegedly made by the Petitioner towards the complainant it becomes difficult to believe that the same was made with an intent of causing any sexual harassment to the complainant. She herself never perceived the comment as sexual harassment when the comment was made," Justice Marne held in the order passed on March 18. 

According to the petitioner, represented through his counsel Sana Raees Khan, in a training session held on June 11, 2022, he had noticed that the complainant was frequently adjusting her hair and was seemingly uncomfortable with her long hair. Thus, the petitioner, on a lighter vein told the complainant "you must be using a JCB to manage your hair" and then just to make her comfortable, he sang few lines of "Yeh Reshmi Zulfe" song. 

Khan contended that the only objective behind the comment was to tell the complainant that if she is uncomfortable with the hair, she should tuck the same, since she was distracting not only the petitioner but also other participants in the session. In fact, the petitioner, before commencing the training session, had clearly told everyone that he will be cracking jokes just to make the atmosphere lighter.

Justice Marne noted the WhatsApp conversation between the Petitioner and the complainant after June 11, 2022, indicated that the Petitioner was in fact motivating the complainant with regard to her performance and she had expressed gratitude.

"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 judge held. 

On a subsequent such session held on June 25, 2022, petitioner saw one of the male employees in the session was busy with his phone. He then asked him if he was talking to his girlfriend, to which the employee responded in the negative stating that he does not have a girlfriend. At this, the petitioner told him "Kyu tumhara machine kharab hai kya?"

The complainant, claims to have felt uncomfortable because of such a comment and thus she cited this incident also as one of the grounds for sexual harassment. 

However, Justice Marne refused to consider the same as a ground as such. 

"The allegations does not indicate presence of the complainant when the alleged remark was made. The remark was admittedly not directed against the complainant. Both the remarks reflected in the second incident are admittedly against another male employee. Therefore it becomes difficult to believe that the conduct described in second incident would cause any sexual harassment personally to the complainant," the judge opined. 

With these observations, the bench quashed the Internal Complaints Committee (ICC) report against the petitioner. 

Case Title: Vinod Kachave vs The Presiding Officer (ICC) (Writ Petition 17230 of 2024)

Appearance: 

Advocates Sana Raees Khan, Juhi Kadu and Sanskriti Yagnik appeared for the Petitioner. 

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