Introduction
The Sexual Harassment of a Woman at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("PoSH Act") provides protection against sexual harassment of women at the workplace and provides a mechanism for the investigation of such cases of harassment. Section 9 of the PoSH Act provides that any aggrieved woman may, in writing, submit a complaint of sexual harassment to the Internal Complaints Committee ("IC") or the Local Complaints Committee ("LC") as the case may be. Provided that in exceptional circumstances where the aggrieved woman is unable to make a written complaint, the IC/LC shall render all reasonable assistance to the aggrieved woman for making the complaint in writing. Further, if the aggrieved woman is not able to make the complaint, any other person on her behalf is also allowed to make a complaint on her behalf, as per the Rule 6 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ("PoSH Rules").
A bare reading of these provisions raises two significant questions:
- Whether there is a mandatory requirement for a formal complaint by or on behalf of the aggrieved woman for the IC/LC to initiate investigation proceedings against the accused. In other words, does the IC/LC have the power to initiate an investigation of sexual harassment in the absence of a formal complaint?
- Does the complaint have to be in written format?
In a recent case before the Hon'ble Kerala High Court ("Hon'ble HC"), titled Abraham Mathai vs. State of Kerala the Hon'ble HC had answered these questions.
Facts of the Case:
The Petitioner ("Accused") was the managing director of the company, where the woman ("Victim") was employed since 1997. Owing to dereliction of duties the Victim was terminated from service in 2017. Aggrieved by this, the Victim approached labour court, challenging her termination. Meanwhile, the District Collector ("DC") received an anonymous complaint, which was forwarded to the LC for investigation. The complaint had no averments in the nature of any sexual harassment. Based on this complaint the LC initiated the inquiry.
During the investigation, the Victim categorically denied making any such anonymous complaint. However, the Victim made some oral remarks to the LC, alleging that the Accused was spreading lewd and lascivious remarks against himself in the name of the Victim. The Victim also mentioned to the LC that the Accused never touched her or asked for any sexual favours; what the Accused did was create a hostile environment for the Victim to work in the company, which ultimately led to the denial of salary and her termination.
The LC investigated the matter against the Accused and forwarded its report to the DC with the following recommendations:
- The Accused should write a formal apology to the Victim for her personal and professional loss.
- The Accused should pay a compensation of INR 19.8 Lakhs to the Victim for sexual harassment and consequential reputational damage caused to the Victim.
The DC issued a letter to the Accused in 2018 asking him to comply with the recommendations of the LC. Aggrieved by this the Accused reached the Hon'ble HC to set aside the recommendations of the LC and the letter of the DC.
Arguments of the Accused:
The Accused argued before the Hon'ble HC that in the absence of a written complaint by the Victim, no inquiry under the PoSH Act could be initiated by the LC. He further argued that even the anonymous complaint did not contain any allegations in the nature of sexual harassment.
Observation of the Hon'ble Court:
The Hon'ble HC observed that going by the scheme of the PoSH Act, the IC/LC can commence an inquiry under section 11 of the PoSH Act only on receipt of a complaint alleging sexual harassment as defined under section 2(n) of the PoSH Act. In this regard the Hon'ble HC relied on a Gujarat HC judgment titled Girishkumar Rameshchandra Soni vs. State of Gujarat, where the Gujarat HC deliberated on the importance of a formal complaint, it held that there must be a formal complaint before the LC/IC by or on behalf of the aggrieved woman as per the provisions of the PoSH Rules.
With respect to the question of filing a written complaint before the IC/LC, the Hon'ble HC relied on its own earlier judgement titled Prasad Panian (Dr.) vs. Central University of Kerala wherein it was held that there should be a formal complaint alleging sexual harassment before the IC/LC, and in specific circumstances where the aggrieved woman is unable to file a written complaint the IC/LC may allow an oral complaint by the aggrieved woman.
In the present case the Hon'ble HC observed that there was no formal complaint by the Victim, against the Accused, and there were no compelling reasons, which would make the Victim unable to file a written complaint against the Accused, and therefore the oral complaint made by the Victim before the LC during the investigation cannot be a substitute for a formal written complaint as provided under section 9 of the PoSH Act.
Further, the Hon'ble HC also observed that though the Accused created a hostile working environment for the Victim, the same cannot be equated with sexual harassment, and therefore the LC had no jurisdiction to inquire into this matter. The dispute in the current matter is related to the employment of the Victim and thus is a labour dispute rather than a dispute of sexual harassment.
Based on the above reasoning, the Hon'ble HC held that the inquiry conducted by the LC was illegal and ultra vires the provisions of the PoSH Act, and therefore quashed the inquiry report of the LC.
Insights for the Employer:
The judgment of the Hon'ble HC in this case demonstrates the importance of a formal complaint before the IC/LC by or on behalf of the aggrieved woman categorically mentioning the allegations of sexual harassment, and thus the IC of a company shall not initiate an inquiry on its own in absence of any formal complaint filed by or on behalf of an aggrieved woman. Further it is important to note that the IC should extend all reasonable help to an aggrieved woman to file a written complaint. However, still if the aggrieved woman is unable to file a written complaint, the IC may allow her to file an oral complaint.
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Originally published by Lexology
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