Examining A Sexual Harassment Complaint

The same is evident from the judgement promulgated by the Supreme Court in Vishaka v. State of Rajasthan  wherein it was held that 'each incident of sexual harassment of woman at workplace results in violation of fundamental rights of women of "Gender Equality" and "Right to Life and Liberty" guaranteed under Article 14, 15, 19(1)(g) and 21 of the Constitution of India.'

India being a State Party to the Convention on the Elimination of all Forms of Discrimination Against Women, 1979 ('CEDAW') was under an obligation to adopt a legislation specially addressing workplace sexual harassment. Therefore, the resultant Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred as POSH Act), was enacted. The fundamental paradigm of POSH is to:

1. Prevents hostile work environment.

2. Define the unwelcome behavior based on the 'test of reasonableness'.

3. Recognize quid-pro-quo harassment.

Section 2(n) of the POSH Act, defines 'Sexual Harassment' akin to the definition provided by CEDAW, which includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely: -

i. physical contact and advances; or

ii. a demand or request for sexual favours; or

iii. making sexually coloured remarks; or

iv. showing pornography; or

v. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

This progressive POSH Act, provides for protection and redressal of complaints of sexual harassment by an aggrieved woman. As per Section 4, POSH Act, the redressal mechanism of the complaint provides for a mandatory constitution of an Internal Complaints Committee (hereinafter ICC), wherein, every employer having ten or more employees shall constitute a Committee by an order in writing.

Step 1: Filing Of Complaint 

An aggrieved woman of an act of sexual harassment at workplace may make a written complaint to the ICC within three months from the date of such incident.

Upon the receipt of complaint, it is incumbent upon the ICC to take steps to settle the matter by way of conciliation, excluding monetary settlement, at the request of the aggrieved woman before initiating an inquiry under the Act. Where a settlement through conciliation is arrived, no further inquiry is conducted. However, if the conciliation fails, the committee shall proceed with the inquiry in accordance with Section 11, POSH Act.

Step II: Understanding The Complaint

In order to allow a fair, prompt and impartial inquiry, it is necessary that the ICC is capable of understanding the fundamentals of the complaint. Therefore, it is pertinent that an environment of trust and confidence is developed throughout such inquiry. As sexual harassment places the aggrieved woman in an atmosphere of intimidation, humiliation and/or hostility it is for the ICC to empathize with her.

There is a whole range of behavior and activity which falls within the wide amplitude of the term 'sexual harassment' under the POSH Act, such as a lewd joke, inappropriate or sexual comment, leering at woman's body and/or giving sexually suggestive gestures, etc. It was held by the Supreme Court in Apparel Export Promotion Council v. A. K. Chopra,  that 'even an attempt to molest or outrageous behavior of employee amounts to Sexual Harassment and actual assault or touch is not necessary to prove it.'^iv

Step IV: Inquiry

Section 11, POSH Act provides that an inquiry into such complaint must be in accordance with the service rules applicable to the respondent. Section 11(3) vests ICC with the similar powers are vested civil court under CPC, 1908, which includes power to summon and enforce attendance, require discovery and production of documents. To ensure substantive justice, it is pertinent for the ICC to abide by the Principles of Natural Justice. While inquiring into the complaint it is requisite for the ICC to understand the root from which the complaint is arising. Thus, the Internal Committee should be impartial, free form any prejudice and allow fair opportunity to the Respondent to be heard.

As the inquiry is required to be completed within 90 days, during its pendency the ICC also has the power to either transfer or grant leave or any other relief to the aggrieved woman.

Step V: Cross-Examination

Thereafter it is incumbent upon the ICC to find inconsistencies/falsity, if any, in the complaint, examinations, statements and evidences placed before it and frame appropriate issue. While cross examining and during the pendency of the inquiry, it is the responsibility of the ICC to verify and analyze the capability of the aggrieved to depose before them freely without any intimidation. Throughout the inquiry, ICC is duty bound to ensure confidentiality of the contents of complaint, proceedings, identity and addresses of the aggrieved woman, respondent and witnesses in accordance to Section 16, POSH Act.

Step  V: Findings

Once the inquiry is completed, the ICC shall provide its report of findings to the employer and the concerned parties within a period of 10 days. If according to the report, it appears that the allegations against the respondent are proved or disproved, then the ICC shall recommend the employer to take necessary steps in consonance with the POSH Act within 60 days.

As no straight jacket formula can be applied while conducting such inquiry it becomes necessary that the decisions of the ICC are based on evidences and reasoning which upholds the intent of the legislature and the Principles of Natural Justice.

The success of an inquiry under the POSH Act, 2013 can only be predicated on the competence and expertise of the Internal Complaints Committee. The relevance of a just and impartial Internal Complaints Committee, which upholds equal standing, dignity and self-respect of women to have a cordial workplace has been realized. Recently in Bibha Pandey v. Punjab National Bank, it was observed that power of the ICC to hold inquiry and give report ought to be within the scheme and four corners of the statute.